Roop Lal Dass vs David Manook and another

Maclean, C.J.—The rule in this case must be made absolute. The case is a simple one. Mr. Jackson''s client was the mortgagee of certain valuable property, and in due course of law he obtained a decree in a suit to enforce his mortgage security, and under that decree the property was put up fur sale and purchased by himself, and he obtained a certificate in February 1898. He then, in accordance with the ordinary procedure of the Civil Courts, obtained delivery of possession of the property in question, without any opposition on the part of the mortgagor, the judgment-debtor. On the 18th February, the present complainant, one David Manook, who, so far as one can judge, has no interest whatever in the properly, lodged a complaint against the Petitioner in the Court of the Joint Magistrate of Dacca, alleging that the Petitioner, with some 200 men was trying to oust him from his bungalow, which is part of the above mortgaged property, and upon that allegation the Joint Magistrate of Dacca, purporting to act under sec. 144 of the Criminal Procedure Code, ordered the Petitioner or any of his subordinates to refrain from entering upon the lands or property known as Ottar Shahpur, and required him to show cause on the 1st March following why the said order should not be rescinded or modified. On the 1st March, the Joint Magistrate called the case on, and in absence of the pleader of the Petitioner passed this order:--Notice hung up in accused''s house. He is absent. Order made absolute." It appears from the Petitioner''s evidence in support of this rule that about ten minutes after the above order had been made the pleader of the Petitioner came into Court and asked the Joint Magistrate to allow him to state his case, but the Magistrate declined to hear him and made this order, " Rup Lal was absent when called on and the order made absolute. This petition was put in too late--File." I think the Magistrate ought, under the circumstances, to have heard the Petitioner''s pleader, and that he exercised an unwise discretion, in not doing so. The matter is then taken on appeal to the District Magistrate, who confirmed the view taken by the Joint Magistrate. Hence the application to this Court. The gross annual income of the property is stated to be about 12,000 rupees. The District Magistrate has given a very short judgment, from the reasoning and conclusion in which I dissent. It is at least based upon an erroneous view as to who are necessary parties to a suit to enforce a mortgage. The Joint Magistrate has given no reasons for his decision. It is urged for the Petitioner that the order is bad on at least two grounds : (r) the case is not within sec. 144; (2) the property in question is situated outside the local jurisdiction of the Court of the Joint Magistrate of Dacca. As regards the first point, it is sufficient to say that looking at the nature of the case, and to the language of the section in question, the section does not apply to a case like the present. The order purporting to be made under that section is, therefore, bad. As regards the question of local jurisdiction the property in dispute is stated--it does not appear to be proved --to be outside the local limits of the jurisdiction of the Joint Magistrate of Dacca. If this be so, the order could not have been properly, made.

As to our jurisdiction to entertain the present application, by reason of the language of the last part of sec. 435 of the Code of Criminal Procedure, the reasoning and the decision in the case of Ananda Chandra Bhuttacharjee v. Carr-Stephen I. L. R. 19 Cal. 127 appear to me to be well-founded. If this were not so, Magistrates might, by affecting to act under sec. 144, when the case was not within that section, oust the jurisdiction of this Court to interfere.

There is one other matter I wish to refer to. When this Court asks for an explanation from a Magistrate, the letter of explanation ought to be signed by the Magistrate himself and not by some one of whom the Court knows nothing, purporting to sign on his behalf.

Mr. Justice Banerjee has called my attention to the case of In the matter of Krishna Mohun By sack (2), which supports the view I have taken of this case.

Banerjee, J.

I concur fully in all that has been said by the learned Chief Justice.