GOCULDOSS JUMNADOSS AND CO Vs. NMSADASIVIER

JUDGEMENT

(1.) This is an application to withdraw I.E. No. 100 of 1927 from the file of the Subordinate Judge of Madura and transfer it for trial and disposal to the Original Side of the High Court. The preliminary objection is raised that such an application will not lie. The provision of law under which the application is made is Section 24 of the Civil Procedure Code, and I propose first to consider its maintainability under that section, referring subsequently to some clauses of the Letters Patent which have alternatively been relied upon.

(2.) Under Section 5(2) of the Provincial Insolvency Act, the High Court has the same power in regard to proceedings under the Act as it has in regard to civil suits; and under Section 24(1) (b), Civil Procedure Code, it may at any stage withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same.

(3.) It will be convenient to follow the course taken by the argument and consider in the first place whether the transfer may be ordered under part (ii) above. This requires that the Original Side of the High Court sitting in the Insolvency should be a Court subordinate to the High Court in its appellate jurisdiction and competent to try the cause. As pointed out by Tyabji, J., in Hindustan Assurance and Mutual Benefit Society, Ltd. V/s. Rail Mulraj (1914) 27 M.L.J. 645 Section 3 of the Civil Procedure Code which defines which Courts are subordinate to the High Court, does not include the High Court, in the exercise of its Original Civil Jurisdiction; nor with reference to the definition of district in Section 2(4) can it be said that the Original Side of the High Court is "District Court" and for that reason subordinate to the High Court under Section 3.