Bennet and Verma, JJ.:— This is a first appeal from order brought by Chaudhri Sardar Singh against a decree of Mr. Hamilton passed on the 30th of March, 1937. Objection has been taken that no appeal lies to this Court. The appellant before us was elected as a Chairman of the District Board of Moradabad and the opposite party made an application against that election. Under section 35C of the U.P District Boards Act of 1922 the Local Government appointed Mr. Hamilton to decide the matter. The point taken is that Mr. Hamilton was a persona designata and not a civil court under the Civil Courts Act, and as he was not a civil court no appeal lies to the High Court. On the other hand, it is argued that Mr. Hamilton was a District Judge and that an appeal will lie from his decree because he was actually a District Judge.
The wording of the section 35C, sub-section (1) is as follows: “When the question is raised by a petition preferred to the Local Government by an elector entitled to vote in any of the circles of a Board, or by any member of the Board, whether the Chairman of a Board has been duly elected or nominated under the provisions of section 35 or section 35B, the Local Government shall, without considering the merits of the question raised, refer it for decision to a judicial officer not below the rank of a District Judge.”
It is clear from the words used that any judicial officer might be appointed by the Local Government provided such an officer is not below the rank of District Judge, for example the Local Government might appoint a Judge of the High Court, or a Judge of the Federal Court or a District Judge of another province. It is clear that in the case of such appointments there would be no question of an appeal to the High Court on the ground that the decree was the decree of a District Judge because the officer concerned would not be a District Judge. We consider that the argument is quite wrong that because a particular person appointed by the Local Government to decide a special matter under the provisions of a Special Act happens to hold at the time of his appointment a particular office such as the office of District Judge, he carries that office with him in his appointment. Moreover, the Civil Courts Act to which learned counsel refers for the right of appeal in section 20, has defined civil courts and in the first clause in section 3 is “the court of the District Judge”.
Now an appeal lies not from the District Judge but from the court of the District Judge. It is essential to distinguish the particular officer who is presiding in the court from the court itself. Perhaps the distinction will be clearer in the case of a Sessions Judge who does not constitute a sessions court under the present Criminal Procedure Code unless he is sitting with assessors and it is still more clear in the case of a trial by jury where the court is made up of the Judge and the jury combined. As civil cases are never tried in India by the help of a jury the matter perhaps is not so clear as it is in England and in countries where a civil court sometimes consists of a Judge and a jury combined. We are quite certain that the present case is one in which Mr. Hamilton was merely a persona designata selected by Government and he was not acting in his capacity as District Judge. It may also be noted that he was not the District Judge of Moradabad where the dispute arose but he was the District Judge of Saharanpur.
There is ample authority for this view. In Ghulam Nizamuddin v. Akhtar Husain Khan(1), a Bench of this Court of which one of us was a member held that no revision lay from the order of Mr. Ardagh, District Judge of Agra, sitting as an election tribunal under section 18 of the same District Boards Act, 1922. In that case the provision in section 18 is not so clear as the present provision. In section 18(1) it is stated: “An election petition shall be heard by the District Judge within whose jurisdiction the constituency concerned is situated (unless some other person or tribunal has been appointed by rule in this behalf).” In that case it was only by inference from the portion of the section in brackets that the conclusion was reached that the District Judge was sitting as a persona designata. In the present case there is much more reason for this decision because the Local Government has to appoint someone in every case under section 35C.
Another ruling to which reference has been made is Abdur Rahman v. Abdur Rahman. It was there held that there was no right of appeal against the order of a Commissioner on an election petition presented to him under the provisions of the U.P Municipalities Act, 1916. That Act had similar provisions and the basis of the decision was the same.
For these reasons we consider that no appeal lies to this Court and we dismiss this appeal from order with costs.