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Mahomed Abdul Hye Vs. Gajraj Sahai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal283
AppellantMahomed Abdul Hye
RespondentGajraj Sahai
Cases ReferredDakhina Mohan Roy Chowdhry v. Saroda Mohan Roy Ohowdhry
Excerpt:
public demands recovery act (bengal act vii of 1880), sections 2 and 20 - limitation--act xi of 1859, section 34--execution of decree annulling sale--decree of privy council--decree for costs--rate of exchange. - .....fact that section 20 contains separate provisions applicable to the case of decrees setting aside sales in execution of certificates, those provisions not being consistent in some respects with the corresponding provisions of section 34 of act xi of 1859 relating to a decree for the setting aside of a sale under that act.3. another question which arises in this appeal is as to the time when the rate of exchange is to be calculated on the costs expressed in sterling in the order of her majesty in council. those costs have been estimated by the decree-holder at the rate of exchange which prevailed at the time when execution was applied for. it is contended that they should have been estimated at the rate which prevailed at the time when the order was mnde. in support of this contention a.....
Judgment:

Stevens, J.

1. This is an appeal from an order of the District Judge of Tirhoot, disallowing an objection by the judgment-debtor to the execution of the decree in respect of costs awarded against him by an order of Her Majesty in Council. The case in which those costs were awarded was one for the setting aside of a sale under the certificate procedure, Bengal Act VII of 1880. The contention was that, inasmuch as Section 2 of Bengal Act VII of 1880 provides that that Act shall, as far as is consistent with the tenor thereof, be construed as one with Act XI of 1859 passed by the Governor-General in Council and Act VII of 1868 passed by the Lieutenant-Governor of Bengal in Council, the provisions of Section 34 of Act XI of 1859 apply to the present case. That section provides that ' if a sale made under this Act ' (i.e., Act XI of 1859) 'be amended by a final decree of a Civil Court, application for the execution of such decree shall be made within six months after the date thereof, otherwise the party in whose favour such decree was passed shall lose all benefit therefrom.' Admittedly in the present case the application for execution was made more than six months after the date of the decree, and it is contended that under the provision of law which we have just quoted the decree-holder has lost all benefit from his decree.

2. We think that Section 2 of Bengal Act VII of 1880 cannot have the effect of making the provisions of Section 34 of Act XI of 1859, which relates to a decree annulling one class of sales, applicable to such a decree as is referred to in Section 20 of Act VII of 1880, that is a decree setting aside a sale of another kind. We think that this is apparent from the fact that Section 20 contains separate provisions applicable to the case of decrees setting aside sales in execution of certificates, those provisions not being consistent in some respects with the corresponding provisions of Section 34 of Act XI of 1859 relating to a decree for the setting aside of a sale under that Act.

3. Another question which arises in this appeal is as to the time when the rate of exchange is to be calculated on the costs expressed in sterling in the order of Her Majesty in Council. Those costs have been estimated by the decree-holder at the rate of exchange which prevailed at the time when execution was applied for. It is contended that they should have been estimated at the rate which prevailed at the time when the order was mnde. In support of this contention a ruling of this Court, Dakhina Mohan Roy Chowdhry v. Saroda Mohan Roy Ohowdhry (1896) I. L. R. 23 Cal. 357 has been cited. This is a matter relating to the practice of the Court, and we think that we ought to follow that ruling, unless we were clearly of opinion that the point ought to be referred to a Pull Bench, We must, therefore, vary the order of the Court below to this extent, that the costs awarded in sterling by Her Majesty in Council must be converted into Indian currency at the rate of exchange for the time being fixed by the Secretary of State for India in Council at the time when the order of Her Majesty in Council was made. Subject to this variation of the order under appeal, the appeal is dismissed. The appellant must pay the respondent's costs.


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