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1865 Supreme(SC) 2
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
MEMBERS OF THE JUDICIAL COMMITTEE—THE RIGHT HON. LORD KINGS-DOWN, THE RIGHT HON. THE LORD JUSTICE KNIGHT BRUCE, AND THE RIGHT HON. THE LORD JUSTICE TURNER
SHAMA PURSHAD ROY CHOWDERY - Appellant
Versus
HURRO PURSHAD ROY CHOWDERY - Respondents
On appeal from the Sudder Dewanny Adawlut of Bengal.
Decided On : March 3, 1865.
Privy Councillor,- Assessors:—The Right Hon. Sir Lawrence Peel, and the Right Hon. Sir James W. Colvile.
Money recovered under a court decree is generally non-recoverable unless the decree is reversed or superseded. Additionally, statutory bars against re-litigating decided issues do not apply when subsequent events alter the nature of the legal question being determined.
Headnote:(A) Ben. Reg. III of 1793 - Section 16 - Bar to suit - The provision prohibiting courts from entertaining a cause that has been heard and determined by a former judge of competent jurisdiction applies only to cases where the question to be determined is the same as that already decided. It does not apply where new circumstances have intervened, altering the nature and character of the question to be determined. (Paras 23-24)
(B) Recovery of money paid under decree - Money recovered under a decree or judgment of a court of competent jurisdiction cannot be recovered in a fresh suit or action while the decree remains in force. However, if the decree has been reversed or superseded by a subsequent proceeding, the money recovered under it is refundable, either by summary process or a new action. (Para 25)
(C) Superseding of subordinate decrees - Where a main decree is reversed by a higher authority, subordinate and dependent decrees resting on the same cause of suit are also considered superseded, especially if they were mere subordinate extensions of the reversed decree. (Para 25)
Facts of the case:
A party paid sums under decrees obtained in a suit for interest. These decrees were subordinate to a main decree. Subsequently, a higher authority reversed the main decree and declared the rights and liabilities of the parties. The party who paid the sums sought recovery of the money, arguing that the subsequent order superseded the subordinate decrees and that the previous decrees should not act as a bar to the new suit.
Findings of Court:
The court found that the subordinate decrees were superseded by the order of the higher authority, as they were dependent on the reversed main decree and based on the same cause of action. Consequently, the money paid under those superseded decrees was recoverable.
Issues: Whether a previous decree acts as a bar to a new suit under Section 16 of Ben. Reg. III of 1793 when new circumstances arise, and whether money paid under a decree can be recovered if that decree is superseded by a subsequent order.
Ratio Decidendi: The court held that the bar against re-litigating a matter applies only to the same question; a change in circumstances creates a new legal question. Furthermore, while money paid under a valid decree is typically non-recoverable, it must be refunded if the decree is reversed or superseded by a subsequent proceeding.
Result: Decrees reversed; sums paid to be repaid with interest, subject to the assets of the respondent.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- res judicata
- execution and recovery
- appeals
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civil procedure
Judgement
The Appellants were the sons and heirs of Doorga Pur shad Roy Chowdery, who had in his life- time instituted a suit in the Zillah Court of the Twenty-Four Pergunnahs against the original Respondent, Tara Pur shad Roy Chowdery, who died pending the appeal, and was afterwards represented by the present Respondents. The object of that suit was to obtain a refund and recovery from the former Respondent of the sum of Rs. 23,294. 9.16 1/2. on account of principal and interest and costs; such principal money having been realized by him from Doorga Purshad Roy Chowdery, for interest which accrued on another principal sum, under a decree, dated the 12th of August, 1844, made in a suit instituted in the same Zillah Court. It appeared that this latter decree was contrary both in spirit and in terms to an Order of Her Majesty in Council of the 18th of July, 1849, made subsequently in an appeal (See Doorga Pershad Roy Chowdry v. Tarra Persad Roy Chowdry, 4 Moore’s Ind. App. Cases, 452), in another suit between the same parties involving substantially the same rights; raising the same questions of law and fact, and dealing with the same principal sum on which the
10 M.I.A. 203 ( 1863- 1866)
Shama Purshad Roy Chowdery V. Hurro Purshad Roy Chowdery
21
interest claimed and recovered by Tara Purshad Roy Chowdery in the above-mentioned suit had accrued.
The principal questions raised by the present appeal were, first, whether as the sum sought to be recovered by Doorga Purshad Boy Chowdery was obtained by the original Respondent under a decree of the Zillah Court, such decree could be pleaded, under Ben. Reg. III. of 1793, sec. 16, as a bar to the suit, notwithstanding the before-mentioned Order in Council; and secondly, whether, independently of that section of the Regulation, the money having been paid under a decree of a Court of competent jurisdiction, he was precluded from recovering in a new suit, so long as the decree under which it was recovered remained in force.
The material facts of the case are fully stated in the judgment.
At the hearing of the appeal,
Mr. Leith appeared for the Appellants, and
Mr. W. H. Melvill for the Respondents.
The case of Doorga Pershad Boy Chowdry v. Tarra Persad Hoy Chowdry (4 Moore’s Ind. App. Cases, 452), was referred to in the argument of the Appellants; and Ben. Reg. III., sec. 16, of 1793, upon the question of the suit being barred by the previous decree, was referred to and insisted on by the Respondents.
Judgment was delivered by
The Right Hon. the Lord Justice Turner [29th March, 1865] The fact of this case, so far as it is necessary to refer to them, lie in a narrow compass.
In the year 1821, Doorga Purshad, claiming to be entitled to the estate of his uncle, instituted a suit against Sharna Purshad Nundy a debtor to the uncles estate, for recovery of the sum of Rs. 23,024, principal and interest due upon a Bond. Pending this suit and in the year 1827, Tara Purshad Boy Chowdery, the original Respondent, sued Doorga Purshad for recovery of one-half of the estate of the uncle, to which he (Tara Purshad) claimed to be entitled.
In the year 1829 there was a compromise of the suit instituted by Tara Purshad against Doorga Purshad, under which compromise Tara Purshad became entitled to a six-anna share of the debt due from Shama Purshad Nundy. Subsequently to this compromise, and on the 27th of July, 1329, Doorga Purshad obtained a decree in the Provincial Court against Shama Purshad Nundy for the amount of the principal and interest due upon the bond. Prom this decree Shama Purshad Nundy appealed to the Sudder Court, and pending this appeal, and in the year 1831, there was a compromise of this suit also, which was effected by deeds, dated the 16th of May, 1831. The terms of this compromise were, that Shama Purshad should pay Rs. 24,217. 12. 17. at the end of three years, without interest, and that, in default of payment, Doorga Purshad should be at liberty to proceed and realize the amount. This
