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Zamil Ahmed Vs. the Maharajah of Sikkim - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1911)ILR38Cal859
AppellantZamil Ahmed
RespondentThe Maharajah of Sikkim
Excerpt:
political agent at sikkim, court of - execution of decree--transfer of decree for execution--civil procedure code (act xiv of 1882) section 229a; (act v of, 1908) section 43, 45. - .....of the political agent at sikkim is a 'court established or continued by the authority of the governor-general in council,' within the meaning of section 43 of the code of civil procedure. it appears to us, however, that this objection cannot be sustained. by reference to the unifications of the 29th march, 1889, and 3rd october 1907, it appears that the governor-general in council declared that section 229a of the code of civil procedure, now section 45, should apply to that court. this appears to us to show beyond dispute that that court is a court established or continued by the authority of the governor-general in council, because it is only to such courts that section 45 of the code of civil procedure can be applied by the governor-general in council.3. it has been argued that.....
Judgment:

Coxe and Teunon, JJ.

1. In this case the respondent obtained a decree in the Court of the Political Agent at Sikkim. An application was made to execute this decree in the Court of the Subordinate Judge, Darjeeling. The appellant objected to the execution; but his objection was overruled, and hence this appeal.

2. The first and principal point taken on his behalf is that it is not shown that the Court of the Political Agent at Sikkim is a 'Court established or continued by the authority of the Governor-General in Council,' within the meaning of Section 43 of the Code of Civil Procedure. It appears to us, however, that this objection cannot be sustained. By reference to the unifications of the 29th March, 1889, and 3rd October 1907, it appears that the Governor-General in Council declared that Section 229A of the Code of Civil Procedure, now Section 45, should apply to that Court. This appears to us to show Beyond dispute that that Court is a Court established or continued by the authority of the Governor-General in Council, because it is only to such Courts that Section 45 of the Code of Civil Procedure can be applied by the Governor-General in Council.

3. It has been argued that although the Court may be regarded as established or continued by the authority of the Governor-General in Council for the purposes of Section 45, it is not necessarily such a Court for the purposes of Section 43; but, in our opinion, this view cannot be upheld. If it is a Court established or continued by the authority of the Governor-General in Council, it is immaterial for what purposes it was so established or continued.

4. It has also been urged that it has not been shown that the decree could not be executed within the jurisdiction of the Court of the Political Agent at Sikkim.

5. This, however, is a pure question of fact; and, as it was not raised by the appellant before the Court below, we do not think that we should allow it to be raised now.

6. Accordingly, we dismiss the appeal with costs.


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