Case: Ashalata Debi &amp; Others Vs. Jadu Nath Roy &amp; Others

of the Appellant.Paragraph 4(2) provided for appeals or applications for revision in respect of proceedings which were pending in the Courts after the 15th August 1947 and laid down that these proceedings by way of appeal or applications for revision could lie in the Court which would have appellate or revisional jurisdiction over that Court if the proceedings were instituted in that Court after the 15th August 1947.It was contended that for the purpose of this provision the words "if the proceedings were instituted in that Court should be read as meaning "if the proceedings could have been instituted in that Court".This certainly could not be the meaning, because by reason of the transfer of the territories no proceedings in respect of the properties which had gone to Pakistan could ever have been maintained after the 15th August 1947 in the Courts concerned. The only construction which could be put upon this provision was that the Court having appellate or revisional jurisdiction over that Court would have such jurisdiction as if the proceedings had been instituted in that Court after the 15th August 1947.For the purpose of the appellate or the revisional jurisdiction that Court had to be treated as the court in which the proceedings could and should have been instituted and it goes without saying that if the proceedings could be treated as having been properly instituted in that Court the only Court to which we appeal or the application for revision could lie was the Court which then had appellate or revisional jurisdiction over that Court. In the case before us no proceedings could have been instituted in the Third Subordinate Judges Court at Alipore in respect of the properties which had gone to East Pakistan after the 15th August 1947.But by reason of the fact that these proceedings were pending in that Court on the 15th August 1947 the High Court of Calcutta which had appellate or revisional jurisdiction over that Court was prescribed to be the court in which the appeal or the application for revision in respect of such proceedings would lie, because that Court that is the Third Subordinate Judges Court at Alipore was treated as the Court in which such proceeding could and should have been instituted after the 15th August 1947.8. Learned counsel for the Respondents drew our attention to the Case of - Tirlok Nath v. Moti Ram, AIR 1950 EP 149 (A). In that case a suit for possession of land at place A was filed in Court at B in 1943. On the 15th August 1947 the suit was pending before the Court at B which dismissed the suit in 1948. An appeal from the decision was filed in the East Punjab High Court as the place B was included in the East Punjab.On objection regarding jurisdiction of the High Court being taken on the ground that the land in suit was at A, now included in Pakistan, the High Court held that the suit being pending at place B on 15th August 1947, appeal from the decision of that Court lay to the East Punjab High Court and not to Lahore High Court under Para 4(2) of the Indian Independence (Legal Proceedings), Order, 1947.This decision is on all fours with the case before us and we are of the opinion that the contention urged on behalf of the Appellants in untenable.9. The next contention of the Appellants is equally untenable. The Calcutta High Court Considered these applications as applications in the suit for a special remedy given under a special law and held that the rules of the Code of Civil Procedure applied and an appeal lay against the orders because they were decrees within the definition of S. 2(2) of the Civil Procedure Code. We cannot accept this reasoning. These applications were in truth and in substance applications for execution of the new decree which had been passed in favour of the mortgagors by the High Court on the 29th June 1944.The only thing competent to the mortgagees under the terms of the new decree was to apply for executions of the decree on default committed by the mortgagors and the applications made by mortgagees in the Court of the Third Subordinate Judge at Alipore were really applications for execution of the decree though not couched in the proper form and could be treated as such. If they were treated as such it is clear that the orders passed on such applications for execution were appealable and no objections could be sustained on the ground that no appeals lay against these orders. Treating these applications therefore as applications for execution we see no substance in this contention of the Appellants.10. If the matter is approached in this way no objection could be urged by the Appellants against the decision of the High Court. The executing Court could not go behind the decree and it is clear on the facts that default was committed by the mortgagors both in regard to the payment of the revenue and the cess as also the second instalment under the new decree.11. The contention which was therefore urged on behalf of the Appellants that there was no default committed by the mortgagors also could not be sustained.12. The High Court of Judicature at Calcutta was therefore rightly seized of the appeal and it had jurisdiction go decide whether the mortgagors had committed default in carrying out the terms of the new decree. The appeal being a mere rehearing the appellate Court was entitled to review the judgment of the trial Judge and declare that it was wrong and that the decree-holder was entitled to re-restoration. The question whether he would be able to obtain possession of the immovable properties in fact was foreign to such an enquiry. By appropriate proceedings in another jurisdiction be may be able to do so: but this difficulty could not be a deterrent to the High Court passing the necessary orders for re-restoration of the properties.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. The next contention of the Appellants is equally untenable. The Calcutta High Court Considered these applications as applications in the suit for a special remedy given under a special law and held that the rules of the Code of Civil Procedure applied and an appeal lay against the orders because they were decrees within the definition of S. 2(2) of the Civil Procedure Code. We cannot accept this reasoning. These applications were in truth and in substance applications for execution of the new decree which had been passed in favour of the mortgagors by the High Court on the 29th June 1944.The only thing competent to the mortgagees under the terms of the new decree was to apply for executions of the decree on default committed by the mortgagors and the applications made by mortgagees in the Court of the Third Subordinate Judge at Alipore were really applications for execution of the decree though not couched in the proper form and could be treated as such. If they were treated as such it is clear that the orders passed on such applications for execution were appealable and no objections could be sustained on the ground that no appeals lay against these orders. Treating these applications therefore as applications for execution we see no substance in this contention of the Appellants.10. If the matter is approached in this way no objection could be urged by the Appellants against the decision of the High Court. The executing Court could not go behind the decree and it is clear on the facts that default was committed by the mortgagors both in regard to the payment of the revenue and the cess as also the second instalment under the new decree.11. The contention which was therefore urged on behalf of the Appellants that there was no default committed by the mortgagors also could not be sustained.12. The High Court of Judicature at Calcutta was therefore rightly seized of the appeal and it had jurisdiction go decide whether the mortgagors had committed default in carrying out the terms of the new decree. The appeal being a mere rehearing the appellate Court was entitled to review the judgment of the trial Judge and declare that it was wrong and that the decree-holder was entitled to re-restoration. The question whether he would be able to obtain possession of the immovable properties in fact was foreign to such an enquiry. By appropriate proceedings in another jurisdiction be may be able to do so: but this difficulty could not be a deterrent to the High Court passing the necessary orders for re-restoration of the properties.