NRISINGHA CHARAN NANDY Vs. RAJNITI PRASAD SINGH

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council from an order passed by this Court in revision in connection with a suit in which the petitioners are the principal defendants and which has been instituted by the respondents Nos. 1 to 3 for the enforcement of two simple mortgage bonds and for recovery of their dues under these two bonds amounting to over ten lakhs of rupees. As the bulk of the mortgaged properties are situated within the Santal Parganas and are the subject of settlement proceedings, the plaint was originally filed under Section 5, Regulation 3 of 1872 in the Court of the Settlement Officer at Santal Parganas, with a prayer that the suit might be transferred under Section 5-A of the aforesaid Regulation to the Court of the Subordinate Judge of Gaya within whose jurisdiction a portion of the mortgaged properties are situate.

(2.) The Settlement Officer certified that in his opinion it was just and expedient that the suit should be transferred to the District Judge of Gaya for disposal and transferred it to that Court. The suit eventually came on the file of a Subordinate Judge and one of the issues raised before him was whether he had jurisdiction to try the suit. This issue being decided against the petitioners, they brought the matter before this Court in revision under Section 115, Civil P.C., but failed to satisfy the learned Judges who heard their application that the decision of the Subordinate Judge was wrong. The learned Judges expressed different views on the question whether the Settlement Officer was competent to transfer the suit to the District Judge of Gaya, Wort, J., holding that the Settlement Officer could transfer the suit to the District Judge of Gaya, and Khaja Mohammad Noor, J., holding that he could not.

(3.) They both however agreed that the ban constituted by Section 5-A of the Santal Parganas Regulation being removed the Subordinate Judge of Gaya had jurisdiction to try the suit. It is against this order that the petitioners wish to appeal to His Majesty in Council. Now as it is frankly conceded on behalf of the petitioners that their present application falls under Section 109(c) the only point to be considered is whether this is a fit case for leave to His Majesty in Council. According to the learned Counsel for the petitioners the main test of fitness is whether the order sought to be appealed against involves a substantial question of law and he contends that the present case must be held to involve such a question as the two Judges who decided the application in revision expressed conflicting views as to whether the Settlement Officer was competent to transfer the case to the District Judge of Gaya or not. Now it appears to us that the question which directly arose in this case was not whether the Settlement Officer could under Section 5-A of Regulation 3 of 1872 transfer the case to the District Judge of Gaya or not but whether the Subordinate Judge in whose Court the suit is pending is competent to try it and on that question both the Judges were agreed.