1. This was an application by Kedar Nath Sanyal and others, the added respondents to England, to remove an order for stay of execution and to direct that execution of certain decrees should be proceeded with.
2. This application had reference to an order made by Mr. Justice Woodroffe and myself on the 24th June 1919, sitting to hear matters relating to Privy Council appeals. The material part of the order we made was as follows:-- 'It is ordered that the execution of the said decree of this Court, dated the 3rd April 1917, be and the same is hereby stayed pending the disposal of the above appeals to His Majesty in Council upon the appellant to England giving security to the satisfaction of the Subordinate Judge of Dacca for Rs. 1,50,000 (rupees one lakh fifty thousand) by the 20tb September 1919 and on the understanding that he, the appellant to England, waives any objection to the sale proclamation which has already been published and any objection that may be raised on the ground that a further sale proclamation should be published after the said 20th September 1919 and any objection to the attachment and it is further ordered that in default of the said security being given by the said 20th September 1919 the said application for stay of execution will stand dismissed and the sale will be proceeded with.'
3. During the argument it was pointed out by the Court that the form of the application was misconceived, as the order was complete in its terms and execution would be stayed if the terms of the order were complied with or would proceed if the terms were not complied with.
4. The application, therefore, was by leave of the Court amended. The amended application then was 'that the said orders of the 20th and 22nd September 1919 and all proceedings had in pursuance thereof should be set aside' on the ground that the orders of the 20th and 22nd September 1919 were made without jurisdiction. Upon that application a Rule was issued on the 24th November 1919. Learned Counsel on behalf of the appellant to England showed cause and the matter was fully argued by him and by learned Counsel on behalf of the added respondents to England who were the applicants for the Rule.
5. It appears that in pursuance of the order of the 24th June 1919 certain security was offered by the appellant to England, but such security was not offered till the 16th September, four days before the time fixed for giving security. The matter was referred to certain Commissioners in order that they might investigate the sufficiency of the security, and on the 20th September an application was made by the appellant to England that the Commissioners might be allowed further time to complete their enquiry. The learned Subordinate Judge, after hearing the objections raised by the respondents, made an order that the Commissioners should have time up to the 10th November for submitting their report after the completion of the enquiry, and on the 22nd September 1919 the learned Subordinate Judge made an order postponing the sale till the 1st December 1919.
6. It was argued in support of the Rule that the two orders of the 20th and 22nd September 1919 were made by the learned Subordinate Judge without jurisdiction and that in any event the learned Subordinate Judge had acted illegally and with material irregularity in making the said order.
7. I have no doubt that this Court, when it made the order of the 24th June 1919, intended that the security should be given, and that any proceedings, which might be necessary in connection therewith, should be completed by the 20th September. One reason for that order was that it was pointed out by the respondents that if three months were allowed for giving the security, as was originally intended by the Court, the sale, which had been originally fixed for the 2nd July 1919, could not take place before the lower Court vacation in the event of the appellant to England not giving the security. Consequently the 20th of September was fixed by the Court, so that, if the security was not given by that date, the sale could take place before the vacation, and in fact, on the 2nd July 1919 the executing Court fixed the 22nd September 1919 for the sale.
8. The result is that the appellants by tendering the security as late as September 16th, 1919, when it was impossible to have the sufficiency of the security investigated by the 20th, did not comply with the order of this Court.
9. In my judgment it is not necessary to decide whether the orders in question were made by the learned Subordinate Judge without jurisdiction or whether he acted illegally or with material irregularity. I desire, however, to make it clear that this judgment must not in any way be taken to imply that in my opinion the learned Judge had jurisdiction to make the orders, which in effect varied the order of this Court. It is sufficient on this occasion for ma to say that it is in the discretion of this Court to make the Rule absolute or to discharge it and that in my judgment having regard to certain matters to which I will refer, the Rule should be discharged.
10. It appears that the Commissioners appointed to enquire into the sufficiency of the security have now made their report, and have found that the security is sufficient. Objections have been or are about to be made by the respondents to the Commissioners' report.
11. These objections will have to be considered and determined: if, on the hearing of the objections, it turns out that the security is sufficient, the respondents will not have been prejudiced; if, on the other hand, the objections prove to be valid objections, and the security is held to be insufficient, execution will not be stayed and the sale will take place.
12. For these reasons, in my judgment, the Rule should be discharged.
13. Having regard to the circumstances of the ease we think it best to direct that the matter of the objections should be heard and determined by the learned District Judge and we request him to take up the matter as soon as possible and to take such steps as to him appear necessary to ensure that the matter is disposed of without delay.
14. In my judgment the added respondents to England under the circumstances of this case were justified in coming to this Court, and that the proceedings in connection with this application would not have been necessary if the appellant to England had carried out the order of this Court of the 21th June 1919, and consequently that the appellant to England must pay the costs of the application and the Rule, which we assess at ten gold mohurs.
15. It was stated during the course of the arguments that orders made on the appellate side of the Court in somewhat similar terms to the order of the 24ih June 1919 have been considered as being complied with if the security is tendered within the time specified in the order for giving the security. I have already said that on account of the special circumstances in this case such an interpretation could not be placed on the order of the 24th June 1919, but having regard to the arguments which were based on the alleged practice in relation to such orders, it will be advisable in the future for the Court to specify definitely the time within which the security, which it is desired to offer, must be tendered and to give such further directions as may be necessary to ensure the intention of the Court being carried out.
16. We give a further direction that the order be drawn up at once, and that the record be sent to the learned District Judge forthwith.