1866. DOSSEE alleged that the Petitioners, feeling aggrieved by the decrees, presented a petition for leave to appeal, GOREE MONEE which was rejected by the High Court (the Hon. G. Loch and the Hon. F. A. Glover present), the Court saying, "The Order passed on the petition of Bamundass Mukerjee, No. 265 of 1865, is applicable to this petition, which is rejected" (a). That (a) The judgment in the case of Bamundass Mukerjee referred to and set out in the petition was as follows: "This is an application for permission to appeal to the Privy Council against the Order of the High Court passed in the execution of a decree of the Privy Council. Notice was ordered to be issued to the opposite party to come in and show cause against this application within one month from the date of service of notice. Subsequently, both parties having appeared, and as the case involved a new point of considerable importance, it was ordered on the 26th August, 1865, to be brought up before the miscellaneous Bench of Judges. It accordingly came before the Court (present, Justices Loch and Glover) on the 13th September, 1865. Mr. Justice Loch delivered judgment and an Order was passed by this Court on the 27th April, 1865, confirming an Order passed by the Principal Sudder Ameen in execution of a decree for a sum above Rs. 10,000, and application is now made to the Court for permission to appeal to the Privy Council under section 39 of the Charter of the High Court. The words of the Charter quoted in support of the application are from any 'final judgment, decree, or Order of the said High Court made in appeal. The words, no doubt, are very wide: we think that they are not intended to extend the privilege of appealing to the Privy Council in miscellaneous. cases, or to alter the present rules which restrict an appeal to 'judgments, decrees, or decretal Orders.' In Regulation XVI. of 1797, the word 'judgment' was alone used, but, notwithstanding, parties had been allowed to send miscellaneous cases to the Privy Council: the practice was put a stop to in 1837 by a construction of the late Sudder Court, dated the 18th August, 1837, No. 1102. In 1838 an Order in Council was passed, bearing date the 10th April, issuing rules for the admission of appeals to the Privy Council; and in the first of these rules we have the words 'judgment, decree, or decretal order,' all of which words, we think, v JUGGUT INDRO NARAIN CHOWDERY. DOSSEE "'. JUGGUT INDRO NARAIN 1866. the Petitioners were precluded by the practice of GOREE MONEE the Court and their interpretation of the Order in Council of the 10th April, 1838, and of the Charter of the High Court, from obtaining the leave of such Court to appeal to Her Majesty in Council; that the CHOWDERY, Value of the subject matter in the original decree of the 26th June, 1837, was, at the date of the judgment of the High Court sought to be appealed against, considerably in excess of Rs. 10,000, the appealable amount, are intended to have one and the same meaning, viz., 'the judgment or decisions come to in a suit,' and that they do not refer to Orders passed in execution of a decree. Such has been the interpretation put upon the words by the public, for up to the present time no application has been made to submit miscellaneous appeals to the Privy Council through this Court since the rules of 1838 were promulgated. In the Charter of the High Court the same words are used, with the omission of the word 'decretal' before 'Order: ' no doubt it is a remarkable omission, but reading it with the assistance we have from the letter of the Secretary of State for India, of the 14th May, 1862, par. 37, we do not think that so material a change in the past practice of the Court as the permission to appeal from miscellaneous Orders would have been passed by without comment, when he notices very particularly the introduction of a section in the Charter allowing of appeals from interlocutory Orders with the permission of a Judge of the High Court. In the paragraph of the letter referred to it is distinctly stated, that in regard to appeals to the Privy Council the object has been to avoid unnecessary innovation; that the existing rules which regulate these appeals are, therefore, left in force, with one or two additions only; and the writer proceeds to instance the introduction of a section permitting appeals from interlocutory Orders: and we think that there is a very great and sufficient reason why an appeal from Orders passed in execution of a decree should not be allowed, which is, that if allowed it would open a fresh door for harassing an Opponent who has already had to fight his battle perhaps up to the Privy Council, and deprive him of the power of executing his decree without further trouble and vexation. We think, therefore, that this and such like appeals cannot be received, and we reject the application." 1866. DOSSEE v. JUGGUT INDRO NARAIN CHOWDERY. the sum which was sued for in the original suit being Rs. 9,925, and the amount awarded by the decree being GOREE MONEE Rs. 5,800, with interest at the rate of 12 per centum per annum to the date of payment; that the grounds on which the Petitioners applied for special leave to appeal were, amongst others :-First; that the construction put by the High Court upon the Order in Council of the 10th April, 1838, and the Charter of the High Court was incorrect. Second; that by Ben. Reg. of 1814, and by the express terms of the Act, No. VIII. of 1859, ss. 207 to 217, it is rendered obligatory that applications for execution should be made to the Court which passed the decree; and it had been repeatedly adjudged by the Indian Courts, that applications for execution to a Court without jurisdiction were void, and, therefore, wholly insufficient to prevent execution being barred by limitation. Third; that the Indian law requires, in order to enable another Judge than the one who passed the decree to execute it, that an execution case should be referred to such other Judge by the Judge who passed the decree, and when such execution case has been struck off the file of the Judge to whom it has been referred, his jurisdiction is ended, and to revive it a new reference is required. Fourth; that according to decided cases of Indian law and the principles of jurisprudence, the process of a Court not having jurisdiction can in no case be legalized by the subsequent sanction of the Judge having jurisdiction, but new process must be issued. Fifth; that the proceedings in the Court of the Principal Sudder Ameen were, therefore, wholly void from the 19th June, 1844; and that, consequently, any money recovered thereunder was illegally exacted, and would 1866. not prevent the operation of the rule of Limitation; GOREE MONEE and that under the old law of Limitation the execution DOSSEE V. JUGGUT INDRO NARAIN CHOWDERY. 3rd Nov. 1866. is void. Sixth; that the execution was also barred, under the provisions of the Act, No. XIV. of 1859, ss. 20 and 21, no proceedings having been taken in a competent Court within three years from the passing of that Act. Seventh; that the decision contained in the judgment of the High Court was at variance with both previous and subsequent decisions of the Sudder and High Courts respectively, and if unreversed would cause great uncertainty and confusion as to the limits of the jurisdiction of the inferior Indian Courts, and also as to the law of Limitation of executions, and the construction and operation of the Acts hereinbefore referred to, which it is of the greatest importance to have accurately defined, maintained, and settled; and prayed for special leave to appeal from the decrees of the Civil Judge and the Principal Sudder Ameen of the Zillah Rungpoor of the 9th of June, 1864, and the 22nd of June, 1864, and also from the decrees of the High Court of Judicature at Fort William in Bengal, of the 9th of January, 1865, the 29th of April, 1865, and the Order of the 13th of September, 1865, rejecting the petition of special appeal. Upon this amended petition special leave to appeal was granted. ESHENCHUNDer Singh AND Appellant, SHAMACHURN BHUTTO, KOILASCHUN DER SINGH, and others Respondents. On appeal from the High Court of Judicature at 2nd & 3rd Nov. 1866. A decree of the High Court of Judicature at THIS was a suit for specific performance of an agreement brought by the Respondents, the Bhuttos, against the Appellant and the Respondent, Koilaschunder Singh. The object of the suit was to recover possession of a four annas undivided share of Calcutta was a Putnee Talook, called Mouzah Balooka, and Mou- founded on an zah Sreerampoore, appertaining to Pergunnah, Ookra, of facts, contradictory to the Zemindary of the Respondent, Sutteeschunder the case Roy Bahadoor (usually designated as the Maharajah alleged in the of Kishnagur), and to have a deed of conveyance of the evidence * Present:-Members of the Judicial Committee-the Right Hon. Lord Westbury, the Right Hon. Sir James William Colvile, the Right Hon. Sir Edward Vaughan Williams. Assessor :-The Right Hon. Sir Lawrence Peel. assumed state plaint and of adduced in support of it; upon appeal such decree reversed with costs. The Judicial Committee holding (1) that it was incorrect to conclude "parties by inferences of fact, not only inconsistent with the allegations in the plaint, constituting the case the Defendants had to meet, but which were in reality contradictory to the case made by the Plaintiff in the Court below; and (2), that the legal conclusions deduced by the High Court were from assumed facts, which were not consistent with settled principles of law or equity. |