1. This is a reference by the District Judge of Mozufferpur concerning a case which was pending in the file of the Subordinate Judge and which has been transferred by him to his own file. The reference is not quite in order, but as we have heard learned Counsel on both sides, we have no hesitation in pronouncing our opinion in favour of the legality of the transfer from the Subordinate Judge''s file to the file of District Judge. The fact that the Subordinate Judge had tried some of the issues in the case did not, in our opinion, disentitle the District Judge from exercising the powers conferred on him by sec. 25 of the Code of Civil Procedure.
2. The case of Kishori Mohun Sett v. Gul Mohamad Saha ILR 15 Cal 177 (1887) has no bearing on the facts of the present case. While on the other hand in the case of Palani Sand v. Thondama I. L. R. 26 Mad. 595 (1902), Chief Justice White and Mr. Justice Davies distinctly held that the High Court has jurisdiction under secs. 25 and 191, sub sec. (2), C. P. C., to transfer a case to a Subordinate Judge though it was part heard. The power which is given to the High Court is co ordinate with the power given to the District Judge.
3. We have been referred to the case of Bidyamoyee v. Surya Kant Acharya 9 C.W.N. 705 (1905), where, it is urged, a contrary view was held. But we do not think the facts of that case bear any analogy with the facts of the present case, and we do not think the learned Judges intended to take a view different from that taken by the Madras High Court. It is clear from the words of sec. 191, sub-sec. (2) and the proviso to that section that the District Judge as well as the High Court has power to transfer a case at whatever stage the case might arrive.
4. It seems to us that if the circumstances, which induced the learned Judge to transfer the case from the file of the Subordinate Judge to his own file, exist, there is no reason why we should re-transfer the case to the file of the Subordinate Judge. With this intimation of our opinion we direct that the papers be returned to the District Judge as soon as possible.
