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S. Ramanujam Chetty Vs. P.R. Padmanabham Pillai - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1923Mad229(1); 70Ind.Cas.784
AppellantS. Ramanujam Chetty
RespondentP.R. Padmanabham Pillai
Excerpt:
civil procedure code (act v of 1908), order xli, rule 5 - stay of execution of costs pending appeal--respondent insolvent--proper order. - .....it is a case where it is right, that there should be a stay of the execution of the decree for costs on terms. the terms, as i understand it, usually imposed here are terms of payment into court. the terms, as far as costs are concerned, which are usually imposed by the court of appeal in england, are payment to the solicitor of the respondent on his personal undertaking to re-pay in the event of the appeal being successful; that personal undertaking being one by an officer of the court, against when it can be enforced in a summary way under the powers that the court has over its own officers; it is a very convenient practice. there is no reason why a solicitor who, as far as these costs are concerned, to a greater extent is entitled thereto should be kept out of the money pending.....
Judgment:
ORDER

Walter Schwabe, C.J.

1. In this case, in view of the insolvency of the respondent, it is not desirable that pending the appeal the amount which he has to recover for costs should be paid to him, because if the appeal is successful, it is obvious that the successful appellant would not get back the costs which he would be entitled to. Therefore it is a case where it is right, that there should be a stay of the execution of the decree for costs on terms. The terms, as I understand it, usually imposed here are terms of payment into Court. The terms, as far as costs are concerned, which are usually imposed by the Court of Appeal in England, are payment to the Solicitor of the respondent on his personal undertaking to re-pay in the event of the appeal being successful; that personal undertaking being one by an officer of the Court, against when it can be enforced in a summary way under the powers that the Court has over its own officers; it is a very convenient practice. There is no reason why a Solicitor who, as far as these costs are concerned, to a greater extent is entitled thereto should be kept out of the money pending the appeal and, if he is a responsible person, no harm will be done to the appellant in view of the under taking he has given. I see no reason why the practice should not be adopted here in proper cases. I think that this is a proper case.

2. The order of the Court will be that there will be a stay of execution on the terms of the taxed costs being paid over by the appellant to the respondent's Solicitor within 14 days on the personal undertaking of the Solicitor for the respondent to re-pay them in the event of the appeal being, successful. Costs of this application will be costs in the appeal.

Krishnan, J.

3. I agree.


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