BAIJOO LALL KATARYAR Vs. RAJENDRA NATH BHATTACHARIYA

JUDGEMENT

(1.) This appeal arises out of a proceeding under Section 47, Civil P.C. The respondent obtained a decree against the appellants on the basis of a handnote executed by their deceased father, the decree being enforceable only against the assets of the joint family. In execution, the decree-holder proceeded to attach certain moveables as part of the joint family assets. The judgment-debtors objected that these were jiheir separate properties and were therefore not liable to attachment under the terms of the decree. This objection was overruled by the brial Court and the judgment-debtors preferred an appeal to the Court of the District Judge. After the record was called for by the District Judge the appeal came up for hearing under Order 41, Rule 11, Civil P.C., before the Additional District Judge who dismissed it under that Rule. It is against this decision that this appeal has been preferred. The first contention raised on behalf of the appellants is that there being nothing in the order-sheet to indicate that the appeal was transferred by an order of the District Judge, the Additional District Judge had no jurisdiction to hear it. Reliance is placed on Section 8, Bengal, Agra and Assam Civil Courts Act (12 of 1887) of which 01. 2 is relevant and runs as follows: Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them, and in the discharge of those functions, they shall exercise the same powers as the District Judge.

(2.) There is very little substance in the contention. No doubt the order-sheet in the appeal does not show that any order was passed, by the District Judge transferring it to the file of the Additional District Judge; but it is difficult to see how the record could have been sent to the Additional District Judge without the District Judge's order, It might be that a number of cases were transferred, at the same time and the order was recorded on a separate sheet of paper which was not incorporated in the order-sheet in each case. It will be unreasonable to hold that on account of such irregularity, if it may be so-called, the Additional District Judge had no jurisdiction to hear the appeal. I should however observe that in order to avoid any objection on this score, it is desirable that the order should, be recorded in the order-sheet of each particular case transferred. The next contention raised, is that the judgment is not in accordance with law.

(3.) It is urged that although the appeal may be dismissed summarily under Order 41, Rule 11, the Court is required to record the judgment in accordance with law as laid down in Order 41, Rule 31, Civil P.C. A number of decisions have been referred to on this point, but it is unnecessary to deal with them because in the present case a judgment has been recorded and it is difficult to hold that it is not a judgment in accordance with law. The learned Additional District Judge considered the points that were raised before him with reference to the evidence, oral, and documentary, and he saw no reason to differ from the findings of fact arrived at by the trial Court. It is however said that he ex pressed no opinion of his own but merely accepted the findings of the trial Court. But this is not so. The main contention before him was that the trial Court did not properly consider the peon's report (Ex. 1) in a previous execution case which, it was suggested, was sufficient to prove that the father's moveables were all exhausted in that execution. With regard to this contention the learned Additional District Judge says: On a consideration of the documentary evidence I am satisfied that this contention must fail. Then as regards the oral evidence, he says: The lower Court was fully justified in relying on the evidence of the decree-holder and in rejecting the uncorroborated testimony of the judgment-debtors witness.