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Damodar Das and ors. Vs. Birj Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All434; 30Ind.Cas.77
AppellantDamodar Das and ors.
RespondentBirj Lal
Excerpt:
civil procedure code (act v of 1908), order xlv, rule 15 - order of privy council--'execution,' meaning of--application for restoration of possession--jurisdiction--printed judgment of privy council, if action can taken on without order in council. - - we think that the word execution' in order xlv, rule 15, is intended to cover execution of any kind, that is to say, that it covers the case of restitution as well as the case of enforcement of a decree for possession or the like passed for the first time in the case on an appeal to his majesty in council, and that a person who desires to obtain execution of any kind, whether by way of restitution or otherwise, must apply, in the first instance, to the court indicated by rule 15. in the present case that was this court......inasmuch as the suit of het ram and others had been dismissed by their lordships of the privy council. birj lal presented with his application a printed copy of the judgment of their lordships of the privy council containing their recommendation in the usual form as to the order which should be passed in the case. but he did not file any copy at all of the order in council. his opponents at once objected that he was not entitled to apply to the subordinate judge without first presenting an application to this court under order xlv, rule 15, of the code of civil procedure and they professed complete ignorance of the terms of the order of their lordships of the privy council. they pleaded that the printed copy produced by birj lal could not be admitted in evidence and, even if.....
Judgment:

1. This appeal and the connected Appeals Nos. 246, 263, 264 and 359 of 1914 arise out of proceedings taken by Birj Lal, one of the parties to the case of Birj Lal v. Musammat Inda Kunwar 23 Ind. Cas. 715 : 36 A. 187 : 26 M.L.J. 443 : 18 C.W.N. 649 : 12 A.L.J. 495 : 19 C.L.J. 469 : (1914) M.W.N. 405 : 15 M.L.T. 395 : 16 Bom. L.R. 352 1 L.W. 794 in connection with the order of His Majesty in Council in that case. As the report shows, there were two suits of which one (No. 62 of 1907) was brought by Inda Kuar for possession of a 10-biswas share in a village and the other (No. 63 of 1907) was brought by Het Ram and others for possession of the other 10 Biswas share in the village. The Court of first instance in Suit No. 62 gave Inda Kuar a decree for a 2-biswas share on certain terms and dismissed her claim for the remaining 8 biswas. Suit No. 63 was dismissed by the Subordinate Judge. On appeal this Court passed decrees in favour of the plaintiffs in both suits. Birj Lal, a defendant in both suits, appealed to His Majesty in Council. The two appeals were consolidated in an order by His Majesty in Council dated February 9th, 1914. On March 13th, 1914, Birj Lal presented an application to the Court of first instance in Suit No. 62, praying that lie might be restored to possession of the 10'biswas share pending the taking of certain accounts ordered by their Lordships of the Privy Council. In the same suit he presented two applications for re-payment of costs which had been recovered from him by lnda Kuar and a third application, the nature of which need not be specified. In Suit No. 63 Birj Lal applied to the Subordinate Judge to restore him to the possession of the 10-biswas share, inasmuch as the suit of Het Ram and others had been dismissed by their Lordships of the Privy Council. Birj Lal presented with his application a printed copy of the judgment of their Lordships of the Privy Council containing their recommendation in the usual form as to the order which should be passed in the case. But he did not file any copy at all of the order in Council. His opponents at once objected that he was not entitled to apply to the Subordinate Judge without first presenting an application to this Court under Order XLV, Rule 15, of the Code of Civil Procedure and they professed complete ignorance of the terms of the order of their Lordships of the Privy Council. They pleaded that the printed copy produced by Birj Lal could not be admitted in evidence and, even if admitted, could afford no justification for disturbing their possession. The Subordinate Judge threw out all their objections. Hence these appeals.

2. Order XLV, Rule 15, provides that whoever desires to obtain execution of any order of His Majesty in Council shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to His Majesty was preferred, and such Court is required to transmit the order of His Majesty in Council to the Court which passed the first decree appealed from, or to such other Court as His Majesty in Council by such order may direct, and shall (upon the application of either party) give such directions as may be required for the execution of the same, it is contended, first, that Order XLV, Rule 15, does not apply at all to the case of a person who is entitled to restitution of the kind described in Section 144 of the Code, and, secondly, that even if a person entitled to such restitution may make an application under Order XLV, Rule 15, he is not obliged to do so and he may go direct to the Court of first instance under Section 144. We are unable to accept either of these contentions. It appears to us that in the absence of Order XLV, Rule 15, there would be nothing to show what Court in India is to carry out an order of His Majesty in Council. We think that the word execution' in Order XLV, Rule 15, is intended to cover execution of any kind, that is to say, that it covers the case of restitution as well as the case of enforcement of a decree for possession or the like passed for the first time in the case on an appeal to His Majesty in Council, and that a person who desires to obtain execution of any kind, whether by way of restitution or otherwise, must apply, in the first instance, to the Court indicated by Rule 15. In the present case that was this Court. Further, we are of opinion that the Subordinate Judge was not entitled to take any action on the printed copy of the judgment of their Lordships of the Privy Council without proof that an order in Council had followed thereon; for what has to be enforced or executed is not the judgment or recommendation of their Lordships but the order in Council. The result is that Appeals Nos. 135, 263 and 264 are allowed and Birj Lal's applications are dismissed with costs in both Courts. Appeals Nos. 246 and 359 arc dismissed with costs.

3. We have been informed that, since the disposal of the applications referred to above by the Subordinate Judge, an application was made by lnda Kuar to this Court under Order XLV, Rule 15, Civil Procedure Code, and on her application the order of His Majesty in Council has been transmitted to the Court of the Subordinate Judge in order that it may be executed. We may point out that, as the order in Council has now reached the Court of the Subordinate Judge, it is open to all parties to these suits to apply to the Subordinate Judge for such relief as they may be entitled to without making any further application to this Court, under Order XLV, Rule 15, of the Code of Civil Procedure.


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