PURSHAD V. MOOSUMAT MAREE. 1854. of the Privy Council to the Registrar of the Sudder GUDADHUR Dewanny Adawlut at Calcutta, in the terms of the TEWARREE rule, that as six calendar months had elapsed from its registration, and no effectual steps taken for the SOONDERKOO- prosecution of the appeal, the same was, pursuant to Rule V. of Her Majesty's Order in Council of the 13th of June, 1853, dismissed without further notice. The petition further stated, that the Petitioner was wholly ignorant of the new rules of practice, having previously had the usual notice to proceed with his appeal within two years, and was in no way prepared for this alteration, no Order having been issued respecting such alteration by the Sudder Court, until the 16th of February, 1854, when the new rules were first adopted by the Sudder Court. That in the later part of 1853, the Petitioner had taken measures for the due prosecution of the appeal, and that his Mookhtar was in correspondence with his agent in England on the subject; and that he was prepared to proceed with the appeal in due course, and prayed that, under the circumstances, his appeal might be revived. Mr. R. Palmer, Q. C., in support of the petition, Urged, that it was a proper case for the indulgence of the Court, by restoring the appeal, as there was no laches in prosecuting the same, the dismissal being under the new rules and regulations, of which the Petitioner was necessarily ignorant, conceiving that the usual period of two years allowed by the Order in Council of the 4th of September, 1833, under the Statute, 3rd & 4th Will. IV., c. 41, sec. 22 (a), was (a) 2 Knapp's P. C. Cases, xxvii. 1854. still in force, the Sudder Court at Calcutta not having notified the existence of the new rules till after the GUDADHUR dismissal. Mr. Leith opposed, Submitting, that if the appeal was restored, it ought to be upon terms of paying costs, and giving fresh security, according to the usual practice.. The Lord Justice KNIGHT BRUCE: If we advise any positive departure from the new rules and regulations, it is only under peculiar circumstances. We think, in this case, that enough has been shown to justify us in recommending the restoration of the appeal, upon the terms of the sum of Rs. 4,000, now deposited in India in Government paper, for costs to abide the appeal standing, without substituting any fresh security, the Appellant undertaking to appear forthwith and use due diligence to bring on his appeal. All costs of and consequent on this application and the dismissal, to be reserved. PURSHAD TEWARREE V. MOOSUMAT SOONDERKOO MAREE. SETO LUCHMEECHUND Appellant, AND SETO ZORAWUR MULL Respondent.* 1854. On appeal from the Sudder Dewanny Adawlut at Agra. 30th Nov., IN this case, the transcript of the proceedings arrived in England and was registered in the Council Office from the Sud- on the 12th of October, 1853, but no effectual steps having been taken for the prosecution of the appeal within six months, pursuant to Appeal der Court in India, which stood dis missed under in Council of the 13th of June, Rule V. of the Order in Council of the 13th of June, 1853, for want of effectual prosecution, restored, as the Appellant was in ignorance of the existence of the new Rules, the Sudder Court having served the Appellant (after the interposition of the appeal) with notice that two years was allowed after the arrival stood dismissed under that rule. Rule V. of the Order 1853 (a), the appeal It appeared that no notice of the existence of the new Rules had been given to the Appellant, who was resident in India, in time to cause effectual steps to be taken to prosecute the appeal, and that upon the appeal being preferred in the Court below, the Appellant had had notice served upon him in India by the Sudder Dewanny Court, that he was to prosecute the * Present: Members of the Judicial Committee,―The Right Hon. Dr. Lushington, the Right Hon. T. Pemberton Leigh, the Right Hon. the Lord Justice Knight Bruce, the Right Hon. Sir Edward Ryan, and the Right Hon. the Lord Justice Turner. (a) See Rules, 5 Moore's Ind. App. Cases, ix. of the transcript in England for prosecuting the appeal. Where Government securities for the due prosecution of the appeal and costs were deposited in the Registry of the Sudder Court, the Judicial Committee in restoring the appeal dispensed with the usual recognizance in England. SETO LUCH- V. appeal within two years from the registering of the 1854. receipt of the copies of the transcript in the Privy Council Office. The Appellant now presented a petition setting forth the above facts, stating the largeness of the sum involved in the appeal, and praying for leave to restore the same. An affidavit was also filed by the agent in England, stating his ignorance of the operation of the new rules, and confirming the circumstances above mentioned. Mr. Leith, for the Petitioner, cited Gudadhur The Right Hon. Dr. LUSHINGTON : The question is, whether there was sufficient means adopted by the Sudder Court to promulgate the new Rules and Regulations in India. It does not appear that the Petitioner was served with any notice, or had means of knowing of the existence of the new rules, and the Appellant very naturally relied upon the notice served upon him by the Sudder Court, by which two years were allowed for prosecuting the appeal after the arrival of the transcript in England. The mere fact of the arrival of the transcript here, in such circumstances, and that no steps have been taken to bring the appeal on for hearing, is not, in our opinion, sufficient to entirely shut out the appeal. The appeal will be restored upon terms of giving security here for £1,000. By the report of the Committee, the appeal was ordered to be restored, and the Appellant allowed to (a) Ante, p. 201. WUR MULL. 1854. MEECH UND V. prosecute the same upon lodging in the Council Office, SETO LUCH- within six months from the date of Her Majesty's Order in Council approving the report, a certificate of recognizance to Her Majesty in the penalty of £1,000. This report was confirmed by an Order in Council, dated the 11th of December, 1854. SETO ZORA WUR MULL. 26th March, 1855. Mr. Leith, for the Petitioner, afterwards moved upon petition for liberty to waive so much of this Order as required the recognizance to be entered into in England for costs, on the ground that there was already a sum of Rs. 10,000, in Government securities, deposited in the Registry of the Sudder Dewanny Court for that purpose.-[The Lord Justice Turner : This Court has been accustomed to require security to be entered into here. Is not the appeal originally allowed in India defunct?]-The security now lodged in the Court in India is amply sufficient for the costs, and it would only inconvenience the parties to get fresh security here. The Right Hon. T. PEMBERTON LEIGH: In the circumstances this application will be granted, but it must be upon condition that the money deposited in India remain in deposit to abide the appeal here. By the Order in Council made upon this petition, it was ordered that so much of the Order of the 11th of December, 1854, as required that recognizance be entered into in the penal sum of £1,000 sterling, be * Present: The Right Hon. T. Pemberton Leigh, the Right Hon. the Lord Justice Knight Bruce, the Right Hon. Sir Edward Ryan, and the Right Hon. the Lord Justice Turner. |