KASISWAR RAY Vs. SATYA BRAHMA DAS

JUDGEMENT

(1.) There was a proceeding under Order 21, Rule 90 of the Civil P. C., for setting aside a sale. It was on the file of Mr. K.K. Sen who was then the Subordinate Judge of the second Court at Barisal. The proceeding was dismissed for default by Mr. K.K. Sen on the 20th of March 1926. On the 16 of April 1926 Mr. K.K. Sen was put in charge of the business attaching to the Court of the first Subordinate Judge of the district. On the 20 of April 1926 the petitioners, against whom the aforesaid order of dismissal for default was passed, made an application under Order 47, Rule 1 of the Civil P. C. before Mr. K.K. Sen who, as I have already said, had by this time become-the presiding Judge of the first Court. This application was dealt with by Mr. K.K. Sen as the Subordinate Judge, first Court of Barisal, on the 3 May: 1926 with the following order: Let the petition be returned to the filing, pleader, Babu Lakshmi Prasanna Banerjee for filing it in the proper Court.

(2.) This order, it may be mentioned here, was passed on a note which was submitted by the office to the learned Judge and which was to the effect that it appeared from the order-sheet that the petition had been filed in that Court by mistake because the miscellaneous case, in question had been disposed of by the Subordinate Judge, second Court, Barisal. On the same day the petitioners, in accordance with the order passed as aforesaid by Mr. K.K. Sen, re-filed the application in the second Court; and the Subordinate Judge who presided in that Court directed it to be registered and notices to issue on it upon the parties.

(3.) Thereafter, presumably because the officer who was presiding in the second Court would have no jurisdiction to deal with the petition by reason of the provisions of Order 47, Rule 2 of the Civil P. C., an application was made by the petitioners before the District Judge? of Bakarganj praying for a transfer of the petition from the second Court to the first Court. The learned District Judges by an order passed on the 8 July 192S refused the said application. He relied upon the decisions of this Court in the cases of Peary hall Mozumdar v. Kamal Kissori Dassia [1880] 6 Cal. 30 and Ramnarain Joshy V/s. Parmeswar Narain Mahta [1897] 25 Cal. 39 as supporting the view that he took, namely, that inasmuch as the petition was there pending in a Court which had no jurisdiction to deal with it there could be no-order of transfer made by him in respect of that petition. The petitioners have now moved this Court and obtained a. rule to show cause why the case should not be transferred to the first Court of the Subordinate Judge or why such other or further order should not be passed as to this Court may seem fit and proper.