@JUDGMENTTAG-ORDER
D.M. Sen, J.@mdashThis is an application u/s 115 of the CPC and also under Article 227 of the Constitution of India, directed against an order dated 21-12-70 passed by the learned District Judge, Goalpara at Dhubri in Misc. Appeal No. 19 of 1970, admitting an appeal and staying the order dated 15-12-70 passed by the learned Munsiff. Dhubri in T.S. No. 392 of 1970.
2. The only question for determination here is whether in view of the provisions in Section 21 (4) of the Bengal, Agra and Assam Civil Courts Act 1887, (hereinafter called the Act) and the Notification No. H.C.VII-9/53/295 Appointment dated 30th January, 1953 issued thereunder, the learned District Judge was competent to admit the appeal from the orders passed by the learned. Munsiff.
3. Mr. K.P. Sen, the learned Counsel appearing for the Petitioner submits that u/s 21(4) of the Act, as soon as a notification has been issued to the effect that any appeal from the decree or order of a Munsiff lying to the District Judge shall be preferred to the Court of a Subordinate Judge (now predestinated Assistant District Judge), the District Judge would have no competence to admit an appeal from the order of a Munsiff.
4. Mr. T.C. Das, the learned Counsel for the Respondents, however, has drawn my attention to the provisions in Section 11(4) of the Act, under which on the occurrence of an event referred to in Sub-section (1) thereof, a District Judge may exercise all or any jurisdiction of the court of a Subordinate Judge (now redesignated . Assistant District Judge), Such contingencies are, inter alia, the absence of an Assistant District Judge from the place in which his court is held. Mr. T.C. Das, submits, and it is also not disputed by Mr. Sen, that on 21-12-70 the Assistant District Judge was not present at the place where his court is held. Accordingly, although, in view of the provisions in Section 21(4) of the Act and the, notification there under, appeals from the decree or order of a Munsiff would lie only to an Assistant District Judge, the District Judge would, nevertheless, in the event of the absence of the Assistant District Judge have competence to admit such appeal, u/s 11(1) of the Act.
5. There is thus no ground for interference u/s 115 of the CPC or under Article 227 of the Constitution,
6. I must, however, observe that the learned District Judge, in passing his order on 21-12-70 and admitting the appeal from the learned Munsiff, should have made it clear in his said order that he was so admitting the appeal in view of the absence of the Assistant District Judge, one of the contingencies contemplated u/s 11(4) of the Act In the instant case, an omission to specify the circumstances under which the learned District Judge admitted the appeal will not however, be very material, since the facts on record clearly show that the contingency as contemplated u/s 11(4) of the Act did in fact exist. However, it would have been better to make an order of this nature more self-contained.
7. Mr. K.P. Sen, the learned Counsel for the Petitioner has also referred to the clause "save as aforesaid" in Section 21(2) of the Act, Construction of this clause does not really concern the present application. But, since the matter has been raised as to what is the meaning and import of that clause in Section 21(2) of the Act, I may observe that this clause "save as aforesaid" has been used in the said Sub-section to enable an appeal from the decree or order of a Munfiiff to be heard by an Additional District Judge as well as by the District Judge, under the provisions of Section 8 (2) of the Act. This clause "save as aforesaid" in Section 21(2) of the Act has, however, no direct hearing on the instant case.
8. The application is dismissed with no orders as to costs. The subject matter of the appeal being of some importance to the parties concerned, the learned District Judge will dispose of the same expeditiously.
