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Issues: (i) whether an application for transfer of the suit was maintainable before the Division Bench under Section 23 of the Code of Civil Procedure; (ii) whether a Judge on the Original Side of the High Court could be treated as a court subordinate to the High Court for the purpose of transfer.
Issue (i): whether an application for transfer of the suit was maintainable before the Division Bench under Section 23 of the Code of Civil Procedure.
Analysis: Section 23 was held not to govern the situation so as to make the Division Bench the proper forum for entertaining the application. The reasoning proceeded on the distinction between the word "district" as used in the Code and the separate position of the High Court exercising ordinary original civil jurisdiction. The Court declined to extend the provision beyond its settled meaning.
Conclusion: The application was not maintainable under Section 23 of the Code of Civil Procedure before the Division Bench.
Issue (ii): whether a Judge on the Original Side of the High Court could be treated as a court subordinate to the High Court for the purpose of transfer.
Analysis: Reading Section 3 of the Code of Civil Procedure with the established structure of the Court, the Court held that a Judge on the Original Side is not subordinate to the High Court. He acts as the High Court itself in the exercise of ordinary original civil jurisdiction. The Court refused to adopt a construction that would disturb settled practice and the constitution of the Court.
Conclusion: A Judge on the Original Side of the High Court is not a court subordinate to the High Court for this purpose.
Final Conclusion: The transfer application failed for want of jurisdiction and was dismissed with costs.
Ratio Decidendi: A transfer application under the Code cannot be entertained on the premise that a Judge sitting on the Original Side is a subordinate court, because in that jurisdiction the Judge is the High Court itself and not a court subordinate to it.
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