Decided on April 30,1952

DARSAN RAUT Respondents


Das, J. - (1.) This second appeal has had a chequered career. It arises out of a suit for redemption of two mortgage bonds dated the 29th of September, 1920, executed by one Rikhai Raut in favour of the defendants first party. On the 25th of February, 1924, Rikhai Raut, it is alleged, sold to one Ganesh Raut an area of 14 bighas and odd kathas which included an area of seven bighas and odd kathas, being the property under mortgage. The consideration for the sale-deed was stated to be Rs. 1,500/- out of which a sum of Rs. 1,175/- was kept in deposit with Ganesh Raut for redeeming the two mortgages, and the balance of Rs. 325/- was stated to have been set off towards previous dues. Ganesh Raut was the father of two of the plaintiffs, and grandfather of the other plaintiffs. Rikhai Raut, it was stated, died in 1933 in a state of separation from his agnates, leaving behind four daughters, who were defendants third party. In Baisakh 1351 Fasli, the plaintiffs tendered the amount of the two mortgage bonds to the defendants first party who refused to accept the amount on the ground that they had transferred their rights to the defendants second party. The plaintiffs thereupon tendered the money to the defendants second party who refused to accept the same. Thereupon, the plaintiffs brought the suit on the 1st of September 1945. The suit was valued, for purposes of jurisdiction and court-fees, at Rs. 1,200/-, the sum of Rs. 1,175/-being the mortgage money and the remaining sum of Rs. 25 was stated to be the approximate mesne profits which the plaintiffs claimed.
(2.) The suit was decreed by the learned Additional Subordinate Judge on the 24th of March, 1947, and the learned District Judge on appeal affirmed the decision of the learned Subordinate Judge on the 8th of October, 1947. The present second appeal was then preferred to this Court by the defendants second party on the 2nd of March 1948, and was admitted on the 13th of September 1948.
(3.) Under the Rules of the Court as published in 1938, a single Judge is competent to hear and dispose of a second appeal, when the value of the subject-matter of the appeal does not exceed Rs. 1,000/-; see Rule 1 (ii) in Chapter II at page 5 of the Rules of the High Court at Patna. On the 28th of February 1952 was passed Standing Order No. 2 of 1952, which reads as follows : "The Single Judge's Jurisdiction in appeal from appellate Decrees and orders is raised from Rs. 1,000/- to Rs. 5,000/- and all such appeals standing on the Weekly Cause list shall be heard by a Single Judge. The rules at present in vogue for the preparation of paper-book in Second Appeals below Rs. 1,000/- in value and in appeals exceeding Rs. 1,000/- in value shall be followed until further orders. This order will take effect from 3rd March, 1952." This Standing Order was passed by our Lord the Chief Justice. In pursuance of the said Standing Order, this appeal was listed for hearing before a single Judge. As the value of the appeal exceeded Rs. 1,000/-, the question whether a single Judge was competent to hear and dispose of the appeal was raised, and Narayan, J., before whom the appeal was placed for hearing passed an order on the 20th of March, 1952, directing that the appeal be placed before a Division Bench. The appeal was then placed before a Division Bench consisting of myself and Sarjoo Prosad, J. As the question raised was of considerable general importance and was likely to arise in all second appeals above the value of Rs. 1,000/- we directed on the 2lst of March 1952, that the appeal be placed before our Lord the Chief Justice for constituting a larger Bench for determination of the question whether a single Judge is now competent to hear and dispose of such appeals by reason of the aforesaid Standing Order.;

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