Bisandayal Sitaram v. Bodulal Ladhuram

1. It is expedient to make a short statement of the facts leading up to this appeal. In the District Court at Akola in West Berar besides the District Judge there are several Additional District Judges appointed under the Berar Courts Law, 1905, who dispose of such cases as are made over to them by the District Judge, but who are not invested with all the powers of the District Judge, viz. the power to transfer cases under S. 24, Act 5 of 1908. These Additional District Judges as such exercise the original jurisdiction, and in some cases also the appellate jurisdiction of the District Court, in cases made over to them, and some time they do so in addition to their ordinary business as Subordinate Judges. In 1914-1915 the Senior Subordinate Judge of Akola was also the third Additional District Judge of West Berar, but this case makes it necessary to point out that in these two capacities he was for all the purposes of law and procedure exercising a dual jurisdiction as two District Courts, as effectively as if each class of jurisdiction had been vested in a separate officer. For it is to some confusion in the matter that most of the trouble and delay in this case are due. It fell to the same officer, presiding as above in two distinct Courts, to pass several decrees against the same judgment-debtor in suits brought by different creditors. The following are the details of four of these decrees:—

Date of decree. Decree Holder. Decretal sum. Court passing decree (1) 4-1-1915 Bishandayal Sitaram 4,639-10-5 Senior Sub-Judge, Akola. (2) 22-2-1915 Pokarmal-Khetsidas and costs 2,130-0-0 Do (3) 24-2-1915 Laduram-Bodulal and costs 13,352-0-0 Third Additional District Judge, West Berar. (4) 24-3-1915 Onkardas-Bagdya. 2,693-12-0 Senior Subordinate Judge, Akola.

2. Each decree-holder obtained an order for attachment before judgment of two houses belonging to the judgment-debtor. After the decrees had been passed, each decree-holder applied for execution to the Court which passed the decree. Thereupon, in execution of the decree of Bisandayal-Sitaram the Court of the Subordinate Judge sold one of the two attached houses on the 15th April, 1915 and it was purchased for Rs. 9,500 by Laduram-Bodulal, the holder of the decree from the District Court. The purchase-money was deposited in the Court of the Subordinate Judge on the 29th April, 1915, and was sufficient to satisfy all the three decrees then pending execution in that Court. But on the 12th April, 1915, three days before the sale took place, Laduram-Bodulal applied to the Subordinate Judge for rateable distribution. This was the first instance of the confusion I have referred to. The Court of the Subordinate Judge, as such, was not competent to execute a decree neither passed by it, nor transferred to it for execution and which was, moreover, beyond the pecuniary limits of its jurisdiction. Therefore, the application of Laduram was rejected on the 7th May, 1915. This order was immediately followed by another application from Laduram made on the 8th May, 1915, asking

(1) That the sale by the Court of the Subordinate Judge should be set aside as ultra vires owing to the fact that as the applicant had attached the property and had applied on the 25th February, 1915 to the District Court for execution, the sale should have been held and the purchase-money dealt with by that Court under Section 63, sub-Section (1) of the CPC, 1908, as applied to Berar; or

(2) That the money should now be transferred from the Court of the Subordinate Judge to the District Court for rateable distribution by the latter.

3. It was now the turn of the Judge to confuse his two jurisdictions. As usual he sought for inspiration from the case-law, and though he managed to give effect to the clear provisions of sub-S. (2) of S. 63 and held that the sale was valid, he made an order as District Court to himself as Subordinate Judge, and directed that the latter should send the Rs. 9,500 held by him to the former for rateable distribution. The order was made on the 9th October, 1915. Meanwhile, on the 17th July, 1915 the sale had been confirmed. Bisandayal-Sitaram applied for revision of the above order by this Court, and the case came before me as Civil Revision No. 18-B of 1016. For the reasons given in my order of the 28th March, 1916, I set aside as ultra vires and illegal the order of the Additional District Judge directing the transfer to his Court of the Rs. 9,500 legally in the custody of the Subordinate Judge's Court. The substance of those reasons was this: that the house which under S. 63(1) of the said Code could and should have been sold by the District Court, having in fact been sold by the Court of the Subordinate Judge, sub-S. (2) came into operation and the purchase-money being legally in the custody of the inferior Court, sub-S. (i) could not apply to it, since that sub-section deals only with property “under attachment” which is “not in the custody of any Court.”

4. Thereupon Laduram-Bodulal applied to the District Judge on the 28th April, 1916 for a transfer of execution of Bisandayals decree to the District Court on the file of the Third Additional District Judge. Notice of this application was issued to Bisandayal-Sitaram, but not to the judgment-debtor. It was contended that Laduram not being a party to the case sought to be transferred was not competent to apply for a, transfer, but this objection was overruled, the learned Judge holding that “rival” judgment-debtors applying for rateable distribution are parties “for the purposes of S. 24, Act 5 of 1908, as applied to Berar. (The word “judgment-debtors” is an evident clerical error for the word “decree-holders.”) The learned Judge considered that the case of Krishna Velji Marwadi v. Bhau Mansaratn (1894) 18 Bom. 61 affords authority for such an interpretation. He further held that the transfer asked for would be just and would enable the applicant to obtain a rateable distribution to which he was fairly entitled. He made the following order:—

“I, therefore grant the application of Laduram-Bodulal and direct that the execution proceeding in case No. 101 of 1914 in which Bisandayal-Sitaram is the decree-holder be transferred to the Court of the Third Additional District Judge.”

5. Evidently the learned Judge intended that a proceeding pending in the Court of the Senior Subordinate Judge of Akola should be transferred from that Court to the District Court of West Berar, and should then be sent to the Third Additional District Judge for disposal. It is to be regretted that he did not draw up his order accordingly. The popular nomenclature which transforms the ‘judge of a Court’ into the ‘Court of a Judge’ is mainly responsible and affords some excuse for the frequent failure of the man in the street to realize the fact that several Judges of one Court do not comprise (except for statistical purposes) as many Courts as there are Judges. But we are entitled to expect that there shall be no such misapprehension or confusion but terminological exactitude in orders made by District Judges.

6. Bisandayal-Sitaram has now moved this Court in revision to set aside the order of the District Judge on the two grounds, which may be stated thus:—

(1) that the order purporting to be made at the instance of a ‘party’ is bad in law, because

(a) no application was made by any party to the case transferred, and, if it was

(b) no notice was issued to the judgment-debtor:

(2) that the order is unfair to Bisandayal-Sitaram.

7. I have no doubt whatever that regarded as an order of transfer made at the instance of an applicant the order of the District Judge could not be supported. The view that rival decree-holders in distinct suits are all “parties” for the purposes of Section 24 of the CPC, 1908, seems manifestly wrong. The word “parties” clearly refers to those litigating the suit, appeal, or other proceedings whereof the transfer is sought. The facts of Krishna Velji Marwadi v. Bhau Mansaram (1894) 18 Bom. 61 were, no doubt, somewhat analogous to the facts of the present case, but the learned Judges of the Bombay Court did not say a single word to suggest that they regarded the applicants before them as parties to the proceedings of which they prayed for a transfer. They merely affirmed the jurisdiction of the District Court to make a transfer demanded by equity or expediency. I hold without hesitation that the application made by Laduram-Bodulal for transfer of the execution proceedings under Bisandayal's decree was not an application made by a party within the meaning of S. 24, Act 5 of 1908, as applied to Berar. If I had been able to concur in the interpretation of the learned District Judge that Laduram was a party, I should have been compelled to set aside the order of transfer as bad for want of a notice to the judgment debtor. Where a Court proceeds under S. 24 aforesaid upon the motion of a party, it is bound to give notice to all other parties to the case whereof a transfer is sought, and to hear such of them as desire to be heard, before it can order any transfer. In this respect S. 24, Act 5 of 1908, repeats S. 25, Act 14 of 1882, and is imperative. The decision of this Court in Balkrishna Ganqadhar v. Ram Narain Pathi (1897) 10 C.P.L.R 94 remains in full force, and I concur in it. It is urged that since the District Judge purported to act at the instance of an applicant whom he supposed to be a party, the validity of his order must be judged with reference to that part of S. 24 which has reference to applications by parties, and should be declared bad either because no party had applied or because the procedure for dealing with a party application was not followed. I am unable to accept this contention as sound. I am not in favour of using Section 115 of the CPC in a narrow and technical way. I regard it as a section which gives plenary powers of interference by this Court, which are to be exercised in harmony with the spirit of the provisions of S. 99 of the same Code, In the present case, however irregular the procedure of the lower Court, I have to see, upon an examination of the main reason for the order made by it,

(1) whether it had jurisdiction to make the order, and, if so,

(2) whether the exercise of such jurisdiction is affected by such irregularity, so material as to call for correction in revision.

8. I have already shewn that if the jurisdiction of the District Judge depended upon an application by a party to the execution proceedings which he has transferred, his order would have been either ultra vires (for want of a party application) or materially irregular (for want of a notice to the judgment-debtor). But S. 24 gives him jurisdiction to transfer of his own motion without application or notice, and for the purposes of S. 115 of the said Code that suffices to make his order intra vires. The learned Judge travelled to an authorized terminus along a route provided for him, and it makes no difference that he erroneously believed himself to be travelling along an alternative route to the same terminus.

9. It is, therefore, only necessary to see whether his order is proper. For the applicant it was urged that by the long delay which has caused he is robbed of the fruits of his diligence—that the transfer of the judgment-debtor's assets to a fresh Court will give opportunity to other decree-holders to come in for rateable distribution who would be too late to get it in the Subordinate Judge's Court, I do not see any force in this argument. The fact that one of several decree-holders by diligence, chance or good fortune often gains an advantage over the others in respect of the realization of his dues from a dishonest or insolvent debtor does not make such an advantage just or equitable. Rateable distribution of available assets among all creditors is the aim of justice. On the facts above stated Laduram had at least an equal right with Bisandayal to share in the assets of their common debtor and but for the disregard of Section 63(1) of the CPC by the officer who was simultaneously Senior Subordinate Judge and Third Additional District Judge, the whole of this litigation and delay might have been avoided. It might also have been avoided if Bisandayal had realized that the transfer of the money into the hands of the Additional District Judge, though irregularly made, merely placed all the decree-holders in the position which they were entitled to be and would have been but for the initial error of the Subordinate Judge. He has himself to thank for the delay and any disadvantage to him which it may now cause. He and his legal advisers have indulged in an opportunity for litigation which certain illegalities of procedure gave them, and whatever enjoyment they got out of that must be their solatium for what it has cost them. If wiser counsels had prevailed, it must have been foreseen that only result of objecting to a proper transfer of execution in the wrong way would be to secure its transfer in the right way. I concur with the learned District Judge that it is in every way just and equitable that Laduram should have rateable distribution in the Rs. 9,500 available and that the transfer ordered by him is necessary and proper. I, therefore, dismiss this application with costs, allowing Rs. 30 as Pleader's fees.

P.N/R.K

10. Application dismissed.