ISRA Vs. NARAIN

JUDGEMENT

(1.) THE circumstances that give rise to this revision may briefly be stated thus - Isra applied before the S.D.O. Amber against Narain and others for reinstatement over the land in dispute under sec.7 of the Rajasthan (Protection of Tenants) Ordinance, 1949. THE case was transferred to the court of the Assistant Collector, Jaipur who by his decision dated 29.8.54 ordered that Narain be reinstated over khasra No. 3019 measuring 82 bighas, 2 biswas in Ramgarh town. Narain and others came up in revision before the Board. THE Board held that adequate opportunity had not been granted to Narain and others to lead their evidence in he case and that the manner in which the trial court proceeded with the case amounted to a disregard of the elementary requirements of justice and fair play.THE order of the trial court was, therefore, set aside and the case was remanded to the court of the restitution under Rule 176 of the rules made under sec. 8 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, corresponding to sec. 144 C.P.C. as the possession over the land in dispute had been transferred to Isra in execution of the order passed by the Assistant Collector Jaipur Isra objected to this restitution on the ground that the S.D.O. Jaipur, could not be regarded as a court of first instance and hence it had no jurisdiction to order restitution. This objection was overruled and hence this revision by Isra before the Board. 2. We have heard the learned counsel appearing for the parties and have gone through the record as well. A number of decision, have been cited before us in support and in contrast of he contention that the Assistant Collector, Jaipur alone could order restitution and that the S.D.O., Jaipur had no jurisdiction to do so. We would first examine the cases cited on behalf of the applicant.

(2.) IN A.I.R. 1920 Bombay 12, the plaintiff obtained an ex parte decree against the defendant on 27.11.1915. The defendant applied for setting aside the same on 25.3.1916. The plaintiff had applied for execution and the decree was executed on 17.4.1916. On 1.7.1916 the ex parte decree was set aside and thereafter the suit was transferred from the court of the First Class Sub-Judge, Poona to the Haveli court. On 10.8.1916, the defendant applied for restoration of the property before the Poona court. It was held by the Poona court that it had no jurisdiction. The defendant appealed to the District Judge who held that sec.144, C.P.C. had no application to the present case and expressed his opinion that it was open to the defendant to apply to the Haveli court. On an appeal before the High Court it was held that the defendant was entitled to have the property restored to him when the decree under which the plaintiff got possession over it has been set aside."If not under sec. 144, C.P.C. under sec. 47, he could make the application for getting back the property and in my opinion the present application which purports to have been made under sec. 114 could be treated as an application relating to the execution of this decree it is a matter not of any practical importance whether it falls under sec. 144 or sec. 47, C.P.C." Thus the main question involved for determination in the case was as to the applicability of sec. 144 or sec. 47, C.P.C. in cases where an ex parte decree had been passed against the defendant and the defendant sought restitution after its execution on the basis of the ex parte decree having been set aside subsequently. The learned Judges however besides deciding that point observed that the application should be sent to the court of the fust instance to be disposed of according to law. As the suit was said to be pending in the Haveli court, it was further observed by the High Court that it may be convenient to have that application disponed of by that court and if so advised it was open to either party to have that application transferred to that court by a proper amplication to the District Court. To our mind, it is perfectly clear that this decision is not an authority on the point that the subsequent court could not be treated as a court of first instance within the meaning of sec. 144, C.P.C. IN A.I.R. 1938 Calcutta 534, a decree was passed in the court at A and was executed by the sale of the judgment-debtor's property which was purchased by the decree-holder Subsequently the sale in the court at A was set aside and hence the decree-holder appealed against the order setting aside the sale and simultaneously got the decree trans-fared to another court at B and executed it there and realized the amount of the decree at 13. His appeal against the order setting aside the sale in the court at A, was allowed and he get the sale confirmed in his name. The judgment-debtor finding that he had paid the decree-holder twise over, once by sale of his property in the court at A and again in execution in the transferee Court at B, applied for restitution to the court at B, alleging that he was entitled to restitution under secs. 4/, 144 and 151, Civil P. C. Held that the court at B could not grant restitution because as soon as it executed the decree its purpose was finished and it no longer remained an executing court. It is clear that in this case second court had become funtus officio after executing the decree which was sent to it for execution. IN the present case, the case itself has been remanded to the second court for further enquiry and the proceedings are still pending before it. A.I.R. 1929 Lahore 534, has practically no bearing on the present case. It was observed therein that a remand order cannot confer on the subordinate court a jurisdiction which that court would not have had but for the remand. IN that case the question of jurisdiction related to the pecuniary limits of the jurisdiction of the subordinate courts concerned.