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Jewan Ram Gangaram and Co. Vs. Commissioners for Port of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal308
AppellantJewan Ram Gangaram and Co.
RespondentCommissioners for Port of Calcutta
Cases ReferredNanda Kishore Singh v. Ram Golam Sahu
Excerpt:
- .....in the present application before us that the petitioners took steps to file an application for special leave to appeal and for stay of execution of the said decree to his majesty in council. but on 18th december 1938, the petitioners received a telegram from their london solicitors to the effect that it was impossible to file the necessary application before the january sitting of the judicial committee. meanwhile on 22nd december 1938, the respondents-plaintiffs applied for execution of the decree in the court of the subordinate judge. that application has been fixed for final orders on 7th january 1939. it is stated that the petitioners' solicitors again sent a telegram on 27th december 1938 informing their london solicitors that the application for execution was fixed for 7th.....
Judgment:

S.K. Ghose, J.

1. The applicants before as are defendants in Title Suit No. 11 of 1937 which was decreed on 21st September 1938. One of the terms of the decree which is material to the present purpose is that the applicants were ordered to remove certain buildings and structures on the land in suit within three months from the date of the decree. Against that decree the applicants preferred an appeal to this Court on 28th November 1938. That appeal is pending. On 2nd December 1938, the applicants being desirous of the execution of the decree being stayed filed an application to that effect in this Court. On 5th December 1938 that application was summarily dismissed. Thereafter the petitioners on 9th December 1938, applied to this Bench for the grant of certificate of leave to appeal to his Majesty in Council. On 12th December 1938, that application was refused by this Bench. It is stated in the present application before us that the petitioners took steps to file an application for special leave to appeal and for stay of execution of the said decree to His Majesty in Council. But on 18th December 1938, the petitioners received a telegram from their London Solicitors to the effect that it was impossible to file the necessary application before the January sitting of the Judicial Committee. Meanwhile on 22nd December 1938, the respondents-plaintiffs applied for execution of the decree in the Court of the Subordinate Judge. That application has been fixed for final orders on 7th January 1939. It is stated that the petitioners' solicitors again sent a telegram on 27th December 1938 informing their London Solicitors that the application for execution was fixed for 7th January 1939 and asking them to move at once on the re-opening for special leave and stay of the execution of the decree before the said date. In reply, on 28th December 1938, the petitioners received a telegram to the effect that such an application was impossible until the Court should re-open on 16th January 1939; notice of the intended application for special leave to appeal to the Privy Council has been duly served upon the opposite party. In these circumstances, the present petition has been filed with a prayer that this Court may make an order directing a stay of the execution of the decree until the petitioners have filed their application for special leave before His Majesty in Council and obtained orders thereon.

2. So far as the facts recited above are concerned, they are not in dispute. It is clear to us that the position now is that it is physically impossible for the petitioners to file their application for special leave before at least 16th January 1939, and that therefore if the execution of the decree be not stayed meanwhile, the application for special leave would be infructuous. That clearly is the position. Now the question is whether this Court has power to grant the present application and make an order as prayed for.

3. Mr. Roy for the petitioners has contended that although the matter may not be strictly within the terms of 0rder 45, Rule 13, Civil P.C., it is open to this Court to exercise its powers under Section 151, Civil P.C., and stay the execution of the decree as prayed for. He has contended that if this Court had granted the application for leave to appeal to His Majesty in Council against the order of this Court refusing to stay the execution of the decree, it would be within the competence of this Court to make an order staying the execution under Clause (d) of Sub-rule (2) of Rule 13, Order 45, Civil P.C., 'the subject matter of the appeal' being the stay of the execution of the decree. It is quite correct that on previous occasions from time to time this Court has, in the exercise of its inherent powers, stayed execution of decrees although the matter, strictly speaking, did not come within the terms of Order 45, Rule 13, Civil P.C; vide the cases in Nanda Kishore Singh v. Ram Golam Sahu (1913) 40 Cal. 955 and Sailendra nath v. Saroj Kumar : AIR1934Cal823 Our attention has also been drawn to an unreported ease. In the present case we are not prepared to hold that the Court has no inherent power to exercise. The Court has its power under Section 151, Civil P.C., and the only question is whether on the facts of the present case we should exercise that power. Mr. Banerjee has not been able to tell us that, if the execution of the decree were stayed for a short time, the opposite parties would suffer irreparable loss or that even any further security is called for. In these circumstances, having regard to the facts recited already, we think that we should allow the application and make an order staying the execution of the decree for a limited period.

4. We accordingly direct that the execution of the decree be stayed for a period of fifteen days from today, subject of course to any order that may be passed by the Judicial Committee within that time. Costs of this application payable to the opposite parties are assessed at five gold mohurs.

B.K. Mukherjea, J.

5. I agree.


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