DISTRICT JUDGE Vs. SETH KISAN DAS

JUDGEMENT

(1.) THIS reference was linked with the civil revisions relating to the Belief of Indebtedness Act in which we are to deliver judgment separately today See A.I.R. 1942 Nag. 5. Those revisions raised the question whether the High Court had power to revise the proceedings of the District Court when acting under Section 20, Relief of Indebtedness Act. This reference raises the linked question whether the District Court has power to refer a case under Section 113, Civil P.C., and whether the High Court has jurisdiction to entertain such a reference. The matter came before Gruer, J. who referred the question for consideration by a Division Bench in the following terms:

(2.) THE learned District Judge states in his order of reference that the District Court, when acting under Section 20, is a special tribunal, and that was one of the aspects debated at one stage in both this and the linked cases. There is much in the language of the Act to suggest this. The sections abound with fictions and the word "deem" or "deemed" continually recur. First, as regards the Debt Relief Court where the proceedings originate, Section 19 provides that that Court shall, as far as practicable, have the same powers and follow the same procedure as it would have and follow "if it were a Court of original civil jurisdiction." Next, as regards the District Court, Section 20 states in its second explanation: For the purposes of this section, the District Court shall be deemed to be the District Court within whose civil jurisdiction the Debt Belief Court is situate.

(3.) AS against this, however, is the fact that new Courts and new tribunals have to be created expressly either by the Legislature itself or under authority conferred by it, as indeed are the Debt Relief Courts under Section 8; also Judges have to be appointed to the tribunals thus created. There is no such creation in respect of these "District Courts." It would appear therefore that this is not a case of special creation but only of the vesting of extraordinary powers in an existing tribunal, a course which the Legislature is free to take though why, if that is the case, we should be imported into a realm of fiction only to be translated back to the world of realities we are unable to discover. However, it is not material for present purposes to determine which of these positions is the true one because if the "District Court" is a fictional District Court it is nevertheless "deemed to be" the true one under Expln. 2 to Section 20, and is vested with all the powers of the true District Court under Section 21 A. Therefore whether it is the true District Court or a fictional District Court, it has to be treated for these purposes in the same way as, the true District Court and it is given the same powers. The question consequently resolves itself into whether the District Court proper would have, or has, powers of reference in these circumstances. That depends upon Section 113 and Order 46, Rule 1, Civil P.C. But before going into that it is necessary to dwell on another point. A great deal depends, and much of the argument was directed to this, upon whether this right of reference is a substantive one or is a mere matter of procedure. We are of opinion that it is the former.