JAMI VENKATAPPADU Vs. KANNEPALLI RAMAMURTHI

JUDGEMENT

(1.) These are revision petitions from the orders of the Subordinate Judge of Berhampore and of the Subordinate Judge of Chicacole on certain applications presented by the judgment- debtors under Secs.19 and 20 of the Madras Agriculturists Relief Act, the judgment- debtors being the defendants in a mortgage suit instituted in 1929 in the Sub-Court at Berhampore in which the final decree was passed on 9 March, 1933. The application for execution was made in August, 1934, (E.P. No. 79 of 1934) and it was during the pendency of this application for execution that Orissa was constituted into a separate Province. The execution proceedings continued to be carried on in the Berhampore Sub-Court and some of the mortgaged properties, all of which have been since the formation of the Orissa Province come within the jurisdiction of the Sub-Court at Chicacole in this Presidency, were sold on 26 July, 1937, and they were purchased by the decree-holders themselves after they had obtained permission to bid and to set off the sale price against the decree amount. The sale however was not confirmed because on 24 August, 1937, that is, within a month after the sale, an application was made by the judgment-debtors under Order 21, Rule 90, Civil Procedure Code, to set aside the sale and the enquiry into that petition was not completed till the 2nd April, 1938, on which date the judgment-debtors presented petitions under Section 20 of the Madras Agriculturists Relief Act praying for stay of execution. Petitions under Section 19 of the Act were presented in the same Court, that is, the Berhampore Sub-Court on the 5 May, 1938. Similar petitions under Section 19 of the Act were also presented by the judgment-debtors in the Chicacole Sub-Court on the 14 April, 1938, on the ground that the mortgaged properties were situate within the jurisdiction of that Court. It would thus appear that the judgment-debtors were prosecuting the same remedy so far as the remedy given by Section 19 of the Act was concerned in two Courts at the same time. On the 4 July, 1938, an interim order was made by the Sub-Judge of Berhampore on the petitions for stay under Section 20 of the Act. It is that order which is sought to be revised by the decree-holders in C.R.Ps. Nos, 224 to 228. On the 5 of November, 1938, the Berhampore Sub-Court made an order directing the petitioners, that is to say, the judgment-debtors, to elect between the two Courts, namely, the Berhampore Sub-Court and the Chicaeole Sub-Court and proseoute their remedy only in one of these two Courts. As this was not done by the petitioners, the Berhampore Sub-Court dismissed the petitions under Section 19 for non-prosecution on 13th December, 1938. It is from this order that C.R.Ps. Nos. 373 and 375 have been presented. It may be mentioned in this connection that the applications under Section 20 of the Act were dismissed by the Berhampore Sub-Court on the 23 January, 1939. C.R.Ps. Nos. 372 and 374 are petitions to revise this order.

(2.) There was an order made by the Chicaeole Sub-Court on the petitions presented to it under Section 19 of the Act to the effect that it had jurisdiction to deal with them. This order happens to have been made on the same date as the order of the Berhampore Sub-Court dismissing the similar petitions under Section 19 and C.R.P. No. 588 is the petition to revise this order of the Chicaeole Sub-Court dated 13 December, 1938, presented by the decree- holders.

(3.) It was conceded by the learned Advocate-General who appeared for the petitioners in C.R.Ps. Nos. 372 to 375 of 1939 that so far as the petitions under Section 20 of the Madras Agriculturists Relief Act were concerned, it was the Berhampore Court alone which had jurisdiction as that was the Court which passed the decree and was actually executing the decree at the time. On the other side, Mr. Venkatarama Sastriar also agrees that the Berhampore Sub-Court had jurisdiction to deal with the petitions under Section 20 of the Act. So far, therefore, there is agreement, but as regards the petitions under Section 19 of the Act, it is contended by the learned Advocate-General that it was the Chicaeole Court alone that had jurisdiction. His alternative contention, however, is that if the Chicaeole Court had no jurisdiction then the Berhampore Sub-Court which must have jurisdiction was not right in dismissing the petitions on the alleged ground of non-prosecution, in the circumstances which appear on the record. The question of jurisdiction is really not one of difficulty. The order in Council which is relevant is the Government of India (Constitution of Orissa) Order of 1936. Section 4(1) of that order is to the effect that the date on which the said provisions, that is to say, the provisions defining the Province of Orissa are to come into operation shall be the 1st April, 1936. So far as the judicial proceedings are concerned, Section 20 gives power to the Governor-General in Council to give such directions as he thinks proper as to the disposal of cases pending on or shortly before, the appointed date in any Court acting for an area, any part of which is transferred by this order to Orissa and as to the Courts in which proceedings by way of appeal or revision are to lie in cases decided by any such Courts before the appointed day. In pursuance of these powers the Governor-General in Council published a Notification No. F. 210 of 1936, Judicial, dated 1 April, 1936. The notification consists of only two paragraphs which run as follows: (1) Every proceeding pending on the appointed day before any Court, other than a High Court, in, or in respect of any area transferred by the said order to Orissa shall be continued, as if the said order had not been made. (2) Any appeal or application for revision in respect of any proceeding so pending or of any decision made before the appointed day in any such Court in or in respect of any such area shall lie in the Court which has appellate or revisional jurisdiction to try such proceeding if the proceeding were instituted after the appointed day. Provided that, where the proceeding relates to any property situate partly within and partly without any area transferred by the said order to Orissa, any appeal or application for revision shall lie as if the said order had not been made.