Judgement

The facts of this case are reported in a former volume (a), so far as they relate to the proceedings in the suit instituted by the Respondent against the then Collector of Kaira, as the representative of the Bombay Government, for the recovery of the enam village of Rawlej, and the revenue thereof during the time the Government was in possession of the village. By an Order in Council, made in the Appeal, bearing date the 5th day of July 1833, it was ordered, "that the said Decree of the Court of Sudder Dewanny Adawlut of Bombay of the 31st of December 1832 should be affirmed, with coats, whereof the Judges of the Court of Sudder Dewanny Adawlut at Bombay were to take notice, and govern themselves accordingly."

After the arrival in India of this Order in Council, the Respondent, in order to

3 M.I.A. 220 ( 1841- 1846) Nugent Kirkland V. Modee Pestonjee Khoorsedjee 33

have execution upon the judgments in his favour, on the 17th of December 1333, petitioned and moved the Sudder Court to issue instructions to the Zilla Court to give execution to the Respondent, as follows —

"To cause the enam village of Rawlej to be made over to me, con-formably to the terms of the original sunud,

“To cause the amount of the proceeds of the said village to be paid to me,

"To cause the amount of the costs incurred by me in the Zilla Court, the Sudder Adawlut, and in England, to be disbursed to me agreeably to the Decrees.

"To cause interest to be paid to me, from the date of the Zilla Courts Decree, to that of payment, at the rate obtaining among the mercantile community, in conformity to the practice of the Court."

On this Petition the Sudder Adawlut made the following Orders — “It is intimated that instructions will be issued to the Judge of the Ahmedabad Zilla for the execution of the Decree, dated 31st of December 1832.

"It is intimated that on the subject of interest, an application should be made, in the first) instance, to the Zilla Judge."

In the month of April 1839, the village was restored to the Respondent, and payment of the 60,000 rupees, the sum awarded for arrears, and of the costs, was made by the Collector to him.

On the 9th of October 1839, the Respondent petitioned the Zilla Court to be allowed, upon the judgment, interest on the 60,000 rupee?, to be cal culated from the date of the original Decree of the Zilla Court, to the 3rd of April 1839, the day when payment had been made.

The Collector, on the 12th of November 1839, filed his answer to the Respondents Petition, denying his right to the interest claimed; and, on the 18th of the same month, the Zilla Court Informed the Respondent that " orders for the payment of interest could not be given on the Petition, and that, if he choose, he might bring an action on the subject;."

On the 18th of February 1840 the Respondent petitioned the Sudder Adawlut, setting forth, in his Petition, the practice to be,, for the Court, in giving execution of Decrees affirmed on appeal, to award interest) from the date of the original Decree; and also setting forth that the sum found by the Decree to be due go the Respondent was in the nature of a debt bearing interest, and praying, therefore, that the Court would be pleased to cancel the order of the Zilla Judge, and issue orders to him to cause the Collector to pay to the Respondent interest at the Government rate from the date of the original Decree.

On the 5th March 1840 the Sudder Adawlut made the following Order—

“It is intimated that the Zilla Judges Order has been cancelled, and that the payment of interest at the rate of 6 per cent, per annum on the amount awarded by the Queen in Councils Judgment, from the original Decree to that of the execution of the Privy Council’s Decree, will be enforced from the opposite party."

The Appellant, on the 16th day of November 1340, presented a Petition to the Sudder Adawlut,

3 M.I.A. 220 ( 1841- 1846) Nugent Kirkland V. Modee Pestonjee Khoorsedjee 34

praying that previously to the payment by him