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1926 Supreme(SC) 8
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT DUNEDIN, LORD BLANESBURGH, AND SIR JOHN EDGE.
SOURENDRA MOHAN SINHA - Appellant
Versus
HARI PRASAD SINHA (DEFENDANTS) - Respondents
On Appeal from the High Court at Patna.
Decided On : Feb. 16. 1926.
Solicitors for appellants (petitioners):Barrow, Rogers & Nevill. Solicitors for respondents: Watkins & Hunter.
An Order in Council is only varied under exceptional circumstances. If a party fails to lodge the Order in the lower court, the other party should seek a summary order under Order xlv., r. 15 (1.) of the Code of Civil Procedure rather than seeking variation of the Order.
Headnote:(A) Code of Civil Procedure - Order xlv., r. 15 (1.) - Execution of decree - When a party fails to lodge an Order in Council in the lower court, the other party may apply to the court with a certified copy of the Order for a summary order directing the party to lodge the same to facilitate execution.
(B) Order in Council - Variation - An Order in Council can only be varied under exceptional circumstances.
Facts of the case:
A decree was passed for a mortgage debt. Upon appeal to the highest court, the amount was reduced, and the respondents were directed to pay the sum within eight months from the date the lower court received the Order in Council. The respondents, to whom the Order was issued, failed to lodge it in the lower court, thereby preventing the petitioners from executing the decree. The petitioners sought to vary the Order to set a fixed date for payment.
Findings of Court:
The court found that the petitioners had not utilized the available procedural remedy under the Code of Civil Procedure to compel the respondents to lodge the Order.
Issues: Whether an Order in Council should be varied to provide a fixed payment date when the party entrusted with the Order fails to lodge it in the lower court.
Ratio Decidendi: The court held that it would not advise the variation of an Order in Council in such circumstances because the aggrieved party has a remedy under Order xlv., r. 15 (1.) of the Code of Civil Procedure to apply for a summary order directing the other party to lodge the Order.
Result: Prayer of the petitioners refused; no costs allowed.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- execution of decrees
- appellate procedure
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civil procedure
Judgement
Petition to vary the terms of an Order in Council made upon an appeal.
The petitioners (the above-named appellants) obtained in a suit in the Court of the Subordinate Judge of Bhagalpur a decree against the respondents for Rs. 15,27,997 in respect of a mortgage debt, and a personal decree for Rs. 44,164. On appeal to the High Court at Patna the decree for sale was reduced to Rs. 3,88,673 and the personal decree to Rs. 23,181. Both parties appealed to the Privy Council. By the judgment of the Judicial Committee delivered on July 21, 1925, the appeal by the plaintiffs was
7 Law Rep. 53 Ind. App. 89 ( 1925- 1926)
Sourendra Mohan Sinha V. Hari Prasad Sinha 18
dismissed, and the appeal by the defendants was allowed to the extent only of setting aside the personal decree. Para. 4 of the judgment directed as follows " that the time within which the respondents ought to pay into court the sum of Rs. 3,88,673 in respect of the mortgage debt and interest ought to be extended until the expiry of eight months from the receipt by the High Court of His Majestys Order in Council herein.”
The judgment of the Judicial Committee is reported at L. R. 52 I. A. 418.
On July 24, 1925, an Order in Council was signed embodying the above paragraph, but the petitioners alleged that they had had no opportunity of considering the terms of the judgment until August after the Judicial Committee had risen.
It appeared that the Order had been issued to the respondents, and that they had not filed it in the High Court. The petitioners alleged that they were not in a position to execute the decree in their favour until the respondents had filed the Order, and eight months had expired from their doing so.
The petitioners now prayed that para. 4 might be varied, by providing that the sum named should be paid into Court by March 31, 1926, and that the carriage of the Order as amended should be given to them.
1926. Feb. 16. Hyam for the petitioners (appellants).
Sir George Lowndes K.C. and E. B. Raikes for the respondents.
[Reference was made to Order xlv., r. 15 (1.), and to Hurrish Chunder Churdhry v. Kali Sundari Debia . (( 1882) L. R. 10 I. A. 4.)]
The judgment of their Lordships was delivered by
VISCOUNT DUNEDIN. This is an application to vary the Order in Council. The Order has been already passed, and it could only be under exceptional circumstances that their Lordships could humbly advise that another Order should be passed.
In the suit judgment was given for the plaintiffs against the defendants for a certain sum.
On appeal to the King in Council their Lordships humbly advised His Majesty to reduce substantially the sum for which judgment had been given, and to make the sum still decreed payable eight months after the date of the receipt of the Order by the High Court.
The defendants having been substantially successful in the appeal, the Order in Council in accordance with the ordinary practice was issued to them, and in ordinary course ought to have been lodged by them in the High Court. They have not however done so, and the plaintiffs cannot therefore so far get execution. Hence this application. The plaintiffs and petitioners have not sufficiently adverted to Order xlv., r. 15 (1.), of the first schedule to the Code of Civil Pro cedure. When they found that the defendants were delaying or refusing to lodge the Order they could have applied to the High Court with a certified copy of the Order and asked for a summary Order on the defendants to lodge the Order which had been entrusted to them, so that execution might follow in terms of the judgment of this Board. This they can still do.
7 Law Rep. 53 Ind. App. 89 ( 1925- 1926)
Sourendra Mohan Sinha V. Hari Prasad Sinha 19
Their Lordships therefore cannot advise His Majesty to grant the prayer of the petitioners but as they are clearly of opinion that it was the duty of the defendants in ordinary course to lodge the Order there will be no costs allowed on the petition.
