KHIM CHAND Vs. KESHAR SINGH

JUDGEMENT

(1.) This is an execution of decree appeal which arises in the following circumstances: Before 1 April 1926 all suits of a civil nature in Kumaun Division were cognizable by an Assistant Collector from whose decision an appeal lay to the Deputy Commissioner and a second appeal to the Commissioner who exercised the powers of a High Court. The appellant instituted a suit for recovery of Rupees 580 on foot of a promissory note in the Court of the Assistant Collector of Almora in Kumaun and obtained a decree for Rs. 423 on 5 July 1927. The defendant appealed to the Deputy Commissioner. His appeal was dismissed. "He preferred a second appeal to the Commissioner which was fixed for hearing on 19 March 1928. The record of the case was however lost in transit. It appears that a large number of other records were lost in similar circumstances. The Commissioner passed an order on 19 April 1928 directing that "the appellant should bring a fresh claim." We are informed that this was a general order applicable to all cases the records of which had been. lost. The plaintiff-decree-holder who was respondent before the Commissioner apparently understood that the defendant- judgment-debtor who was the appellant should institute a suit to contest the plaintiff's claim already decreed by the first two Courts while the defendant considered that the plaintiff should institute a fresh suit to obtain a decree on foot of the promissory note.

(2.) It is not necessary for us to express an opinion as to which of them was right on this curious point. The fact remains that no suit was instituted by either party. On 10 June 1929 the plaintiff applied for execution of the decree which he had obtained from the Court of the Assistant Collector. The Assistant Collector before whom the application was made dismissed it holding that the plaintiff ought to institute a fresh suit. Thereupon the plaintiff appealed to the District Judge instead of the Deputy Commissioner in view of a Government notification issued on 1st April 1926 which conferred on the District Judge appellate powers previously vested in the Deputy Commissioner and extended the jurisdiction of this Court to Kumaun. The District Judge dismissed the appeal and the plaintiff has preferred the present second appeal in this Court. In extending the jurisdiction of the High Court the notification made practically the entire Code of Civil. Procedure applicable to Kumaun division. An important reservation was however made as regards a certain class of cases which are specified under the heading "qualification." It runs as follows: Nothing in this notification or in the schedule shall operate to affect the disposal of: (a) any suit or proceeding instituted before 1 April 1926, in any Court or before any officer of the Kumaun division; or (b) any application, appeal, review, revision, proceeding in execution, or other proceeding filed or taken, whether before, on or after the said day in any such Court or before any such officer, in continuation or pursuance of any suit or proceeding defined in para. (a) but all such applications, suits, and proceedings shall be heard and decided as if this notification had not been issued: Provided that a decree or order passed in any such suit or proceedings as is defined in paras, (a) and (b) shall not be invalid by reason only of such decree or order being in contravention of this qualification.

(3.) It is clear that an application for execution of a decree passed in a suit instituted before 1 April 1926 is subject, as regards forum of appeal, to the rules in force before the notification and that the plaintiff-decree-holder should have appealed to the Deputy Commissioner from the order of the Assistant Collector dismissing his application for execution. His appeal to the District Judge was incompetent. The District Judge has adverted to this point in his judgment but expressed no decisive opinion. He preferred to dispose of the appeal on what he considered to be the merits of the appeal before him. A second appeal to this Court would certainly lie in so far as the learned District Judge assumed a jurisdiction which he did not possess. We do not think that the proviso to the rule can be so construed as to prevent the exercise by this Court of its power to set aside the order of the District Judge. It may be that if it had been allowed to become final it would not have been considered invalid by reason only of the order being in contravention of the rule. Accordingly we set aside the order of the District Judge and direct him to return to the plaintiff the memorandum of his appeal to the District Judge for presentation to the Court of the Deputy Commissioner who had jurisdiction to entertain an appeal from the order of the Assistant Collector dismissing the plaintiff's application for execution. The respondent shall have his costs in this Court and in that of the District Judge.