Bombay High CourtDakor Temple Committee vs Shankerlal on 4 October, 1943Equivalent citations: (1944)46BOMLR653, AIR 1944 BOMBAY 300JUDGMENT
 

Sen, J.1. This is an application for revision of an order made by the District Judge, Nadiad, in a darkhast application made to enforce two decrees, one passed in Suit No. 23 of 1880 and the other passed in Suit No. 18 of 1887. The first suit was instituted under Section 92 of the Civil Procedure Code in the District Court at Ahmedabad against the sevaks or pujaris of the temple of Shri Ranchhodraiji at Dakor by some of the gors of the said temple and one M.G. Tambekar. There was a first appeal to the High Court which decided that the properties in suit were of a public, charitable and religious trust, that the sevaks were merely trustees and servants of the temple, and that they were accountable for all the properties in their hands. It directed the District Judge of Ahmedabad to take accounts, appoint a receiver, and frame a scheme for future management.(Manohar Ganesh Tambekar v. Lakshmiram Govindram(1887) I.L.R. 12 Bom.247) This decree was confirmed by the Privy Council (Chotalal v. Manohar Ganesh Tambekar (1899) I.L.R. 24 Bom. 50 : s.c. 2
Bom. L.R. 516, P.C.). Suit No. 18 of 1887 was also decided in the District Court at Ahmedabad. It was brought by the gors of the temple against the sevaks for a declaration of their rights and for an injunction. It was first instituted in the Court of the Second Class Subordinate Judge at Umreth. As the valuation exceeded Rs. 5,000, it was thereafter filed in the Court of the First Class Subordinate Judge at Ahmedabad who had jurisdiction at that date over the Kaira and Panch Mahal Districts as well as the Ahmedabad District. Thereafter it was transferred to the Assistant Judge, and he decreed the suit in favour of the plaintiffs in 1888. There was a first appeal to the High Court which confirmed the original decree with slight modifications. (Kalidas Jivram v. Gor Parjaram Hirji (1890) I.L.R. 15 Bom. 309).2. The scheme which the District Judge had been directed to frame in Suit No. 23 of 1880 having been framed by him, there were appeals to the High Court and the scheme was ultimately settled by the High Court and confirmed by the Privy Council in 1912. (Sevak Kirpashankar v. Gopalrao(1912) 15
Bom. L.R. 13, P.C.). Under the scheme the sevaks were removed from the management of the trust and a committee called the Dakor Temple Committee was appointed for the management of the trust property and the temple. Rules which were made by the Committee formed part of the scheme.3. The present darkhast is filed by the gors against the Temple Committee and its members for execution of the decree passed in Suits Nos. 23 of 1880 and 18 of 1887. In the written statement of the Dakor Temple Committee numerous objections) to the darkhast application were made, one of which, No. 2, was as to the jurisdiction of the District Court to entertain and hear the application. Eleven issues were framed out of which the learned District Judge decided six, i.e., issues Nos. 1, 3, 4, 5, 6 and 8, by recording findings thereon. Issue No. 8 was : " Whether this Court has no jurisdiction to entertain and hear the present application ? " And the finding on this issue was : " No. It' must be sent to the proper Court." The learned Judge held that the First Class Subordinate Judge of Nadiad was the proper Court to entertain and hear the application ; and made the following order : " As the return of the darkhast for presentation to the proper Court will be a mere waste of time and money to the parties, I order the darkhast to be transferred to the said Court."4. The main contention of the applicants, who are the Dakor Temple Committee and four of its members, is that as the Court found that; it had no jurisdiction to entertain or hear the application, it should not have recorded any finding on any issue at all except issue No. 8, and that it was improper, after having recorded findings on issues Nos. 1, 3, 4, 5 and 6, to send the application to the First Class Subordinate Judge's Court for decision on the remaining issues. It is also contended that the learned District Judge should not have transferred the darkhast to the First Class Subordinate Judge's Court, but should have returned it to the applicants for presentation to the proper Court. Mr. Thakor's contention on behalf of the opponents is that both the District Court and the First Class Subordinate Judge's Court had a concurrent jurisdiction to deal with the matter, and that as the District Court had the power under Section 24 of the Civil Procedure. Code to transfer the application to a Subordinate Court, which expression under Section 3 would include the First Class Subordinate Judge's Court, " at (any stage," the order cannot be regarded as an improper or illegal order, and that there is really no case for revision.5. The objections as to the jurisdiction of the Court have been dealt with by the learned District Judge in the following manner. The first contention raised on behalf of the original opponents was that the decree sought to be. executed having been passed by the District Court, Ahmedabad, which at the date of the decree had jurisdiction over the Kaira District, the Court at Nadiad had no jurisdiction to entertain and hear the darkhast. The learned District Judge has pointed out that in 1926 the territorial jurisdiction over the Kaira District which the Ahmedabad Court had was wholly conferred on the District Court of Kaira (wherein Dakor is situated) at Nadiad and that under the decision inJagannath v. Ichharamthe new Court would be deemed to be the Court which passed the decree as defined in Section 37 of the Code. He, therefore, held that the applicants were under no necessity to go to the Ahmedabad Court for executing the decree in their favour. The learned District Judge has next held that the decree in Suit No. 18 of 1887 must be deemed to be a decree of the Court of the First Class Subordinate Judge and not of the District Court. His grounds for this conclusion are that it was filed in the First Class Subordinate Judge's Court at
Ahmedabad and that the High Court disallowed the objection that the valuation in the suit was really made up of the value of different causes of action, each of value less than Rs. 5,000, so that the suit, though ultimately decided by the Assistant Judge, was a suit belonging to the Court of the First Class Subordinate Judge. As to suit No. 23 of 1880, which was a suit under Section 92 of the Civil Procedure Code, he held that the Court of the First Class Subordinate Judge of Nadiad was the proper Court for executing the decree owing to the fact that the Provincial Government had empowered that Court to entertain suits under Section 92 and in view of the provisions of Section 37 (b) of the Code defining the expression " Court which passed a decree. " The material part of that section reads thus :The expression ' Court which passed a decree,' or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include-(a)...(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.6. Now the decree in suit No. 23 of 1880 is a decree made by the District Court of Ahmedabad. Under Section 38 of the Civil Procedure Code a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. The interpretation of the expression " the Court which passed it" would be governed by the provisions of Section 37(b), the terms of which I have set out above. There is no doubt that the District Court of Ahmedabad has ceased to have jurisdiction to execute the decree. It could now, therefore, be executed by the Court which would have jurisdiction to try the suit had it been instituted at the date of the present application. The suit being one under Section 92, at the date of the application both the District Court as well as the First Class Subordinate Judge's Court at Nadiad would be competent to try the suit. The First Class Subordinate Judge's Court has been empowered under the amendment of Section 92 to entertain and try suits under Section 92. But that cannot have the effect of giving it exclusive jurisdiction, i.e., to the exclusion of the District Court. The jurisdiction originally existing in the District Court cannot be said to be affected by its having been further conferred (by the amendment) on the First Class Subordinate Judge's Court. Both the District Court and the First Class Subordinate Judge's Court, therefore, would have, under the said section, a concurrent jurisdiction to try the suit.7. Mr. Desai on behalf of the applicants has, however, contended that the provisions of Section 15, viz. that every suit shall be instituted in the Court of the lowest grade competent to try it, will apply, i.e., the only Court which, in the language of Section 37, "would have jurisdiction to try" the suit at the date of the application would be the First Class Subordinate Judge's Court and not the District Court. It seems to me that this contention cannot be upheld. Section 15 lays down in which Court a suit "shall be instituted", and it contemplates a state of things in which more Courts than one are " competent to try " the suit, i.e., have jurisdiction to try the suit. Where, therefore, the Court of first instance has ceased to have jurisdiction to execute the decree, the Court or Courts "competent" at the date of the darkhast application to try the suit, as distinguished from the Court wherein such suit should be " instituted," would be competent to execute the decree. That, it seems to me, would be the combined effect of Sections 37 and 38 of the Code. Section 15, which relates to procedure alone, cannot affect the question of the jurisdiction of Courts to entertain and try suits, aslaid down ins.,92 or as contemplated in Section 37 of the Code. The proper successor to the District Court of Ahmedabad is the District Court at Nadiad, and if that Court has jurisdiction along with the First Class Subordinate Judge's Court at Nadiad to try a suit of the nature of suit No. 23 of 1880, it seems to me clear that it would have the power to execute the decree in that suit. I, therefore, think that the provisions of Section 15 cannot limit or nullify the jurisdiction of that Court resulting from the application of Section 37(6) in the case of a decree made in a suit filed under Section 92 of the Code. If it was the intention of the Legislature that a suit under Section 92 was to be entertained only by the First Class Subordinate Judge's Court at the places in respect of which action was taken by the Provincial Government in empowering Courts other than the District Court under the said section, it seems to me that the amendment of the original words, "in the High Court or the District Court," which occurred in the old Code after the words, " may institute suit," would have been couched in different language. The intention seems clearly to be that both the District Court and any other Court empowered by the Provincial Government should have concurrent jurisdiction to entertain and try suits under Section 92. The reasoning adopted by the learned District Judge in holding that the Court of the First Class Subordinate Judge at Nadiad alone is the proper Court for executing the decree in suit No. 23 of 1880 must, therefore, be held to be erroneous.8. As to Suit No. 18 of 1887, the decree was made by the Assistant Judge of
Ahmedabad. It appears to me difficult to hold that the Assistant Judge was acting as a part of the First Class Subordinate Judge's Court. UnderSection 16of the Civil Courts Act, 1869, an Assistant Judge has original jurisdiction to try suits, the subject-matter of which does not exceed Rs. 10,000 in value, and underSection 20of the said Act every Assistant Judge has to use the " seal of the District Judge to whom he is an assistant." The Court of the Assistant Judge, therefore, appears to me to be a part of or an adjunct to the District Court and not the Court of the First Class Subordinate Judge. As the Assistant Judge of Ahmedabad has now ceased to have jurisdiction to execute the decree, his place, therefore, will be taken! by the District Court at Nadiad underSection 37of the Code. I, therefore, think that with regard to the decree in this suit also the learned District Judge has fallen into an error in holding that the First Class Subordinate Judge of Nadiad alone is the proper Court to execute the decree. The finding of the learned District Judge on Issue No. 8 must, therefore, be held to be erroneous and be set aside.9. As to the question whether he was justified in sending the application underSection 24of the Code, after deciding some of the issues, it seems clear that if the ground on which the learned District Judge made the order of transfer disappears, it is unnecessary to support this order by reference to the provisions ofSection 24. The order was evidently not passed underSection 39of the Code. It is true that underSection 24a transfer could be made at any stage of any suit, appeal or other proceeding pending before the Court which makes the order. The First Class Subordinate Judge's Court appears to be a Court subordinate to the District Court, within the meaning ofSection 24, under the definition of "Subordinate Courts" inSection 3of the Code, being a Court of a grade inferior to that of a District Court, It seems to me, however, unsatisfactory for one Court to decide some of the issues raised and leave it to the Court to which the matter is transferred to decide the remaining issues. But the District Court has really failed to exercise the jurisdiction which was vested in it on account of its finding that it had no jurisdiction to entertain and hear the application. As I have held that that finding was wrong, the order is one which is open to revision under Section 115(b) of the Code. I think, therefore, that the proper course would be to set aside the order of the District Court and to direct it to complete the hearing of the application itself, and I order accordingly. There will be no order as to costs.