ABDUL MAJID Vs. JAWAHIR LAL

JUDGEMENT

(1.) The facts of this case, so far as it is necessary to state them for the purposes of this appeal, are these:-- A decree for sale was passed under Section 88 of the Transfer of Property Act against several sets of defendants on the 12 of May, 1890, by the Court of the Subordinate Judge of Allahabad. According to that decree a sum of Rs. 11,751-15-9 was directed to be paid by the appellant Abdul Majid, one of the judgment-debtors. He appealed from this decree to this Court and his appeal was dismissed on the 8 of April, 1893 He applied for and obtained leave to appeal to Her Late Majesty in Council. No steps, however, were taken to prosecute the appeal and it was dismissed for default of prosecution by the Privy Council on the 13 of May, 1901. The order of dismissal runs in these terms:-- Their Lordships of the Committee in obedience to the said order in Council have proceeded to take into consideration the appeal of Chaudhri Abdul Majid, appellant, and Thakur Prasad, Kanhaiya Lal and Jawahir Lal respondents from a decree of the High Court of Judicature for the North-Western Provinces and having called on the appellant to show cause why the said appeal should not be dismissed for non-prosecution, no effectual steps having been taken to set down the same for hearing , their Lordships do this day humbly agree to recommend to Your Majesty the dismissal of this appeal for non-prosecution." An order was subsequently passed in these terms: "His Majesty having taken the said report into consideration was pleased by and with the advice of His Privy Council to approve thereof and to order as it is hereby ordered that, the said appeal be and the same is hereby dismissed for non-prosecution, whereof the Judges of the High Court of Judicature for the North-Western Provinces at Allahabad fur the time being and all other persons whom it may concern are to take notice and govern themselves accordingly." On the 14 of November, 1904, an application was made to the High Court by the decree-holder, Jawahir Lal, an order absolute against Abdul Majid. An objection was taken to this application by the judgment- debtor on the ground that it was barred by limitation and on the further ground that the procedure enjoined by Section 610 of the Civil P. C. of 1882, had not been followed. On the latter ground the objection was allowed. The decree-holder then on the 11 of June, 1900, applied to this Court under Section 510, and an order was passed to this effect: "Let the order be sent down to the Court below for necessary execution according to law," The decree-holder then applied for a decree absolute under Order XXXIV Rule 5 of Act V of 1908. This application was met by the objection on behalf of the judgment-debtor that the application was barred by limitation; that the only decree which was capable of execution was the decree of the High Court passed on the 8 of April, 1893; that the order of their Lordships of the Privy Council did not affirm that decree but merely dismissed the appeal for want of prosecution; and that there was no order or decree of the Privy Council which was capable of execution.

(2.) If this contention be correct, then the application for execution is barred by Art. 178 or 179 of the second Schedule to Act XV of 1877, corresponding to Art. 181 or 182 of Act IX of 1908. If, on the other hand, the order of the Privy Council is an order which can be executed, the application of the decree-holder is governed by Art. 180 of Act XV of 1877, corresponding to Art. 183 of Act IX of 1908. This last mentioned article provides a period of 12 years within which an order of His Majesty in Council may be enforced. If the order of His Majesty of the 13 of May, 1901, is treated as an affirmance of the decree of this Court, it seems to me that it is the decree or order of the final Court of Appeal and is an order which can be executed, and as 12 years have not elapsed since the date of that order, the application of the creditor is not barred by limitation. The question is not without authority. In Pitts V/s. La Fontaine (1881) L.R. 6 A.C. 482 : 50 L.J.P.C. 8 : 43 L.T. 519, it was held by their Lordships of the Privy Council that when a decision of the judicial Committee has been reported and sanctioned and embodied in an order of Council, it becomes the decree or order of the final Court of Appeal, and it is the duty of every subordinate tribunal to whom the order is addressed to carry it into execution.

(3.) In Lachmun Persad Singh V/s. Kishen Persad Singh 8 C. 218 : 10 C.L.R. 425, it was held by a Full Bench of the Calcutta High Court, on a reference by Mitter and Maclean, JJ., that although an order of Her late Majesty in Council only confirms a decree of the Court below, that order is the paramount decision in the suit and any application to enforce it is in point of law an application to execute the order and not the decree which it confirmed. The question before the Court in that case was whether Art. 179 or Art. 180 of Schedule II of Act XV of 1877 governed an application to enforce an order of Her Majesty in Council, affirming a decree of the High Court on its appellate side. Garth, C.J., who delivered the judgment of the Court observed: "Although an order of Her Majesty in Council may confirm the decree of the Court below that order is undoubtedly the paramount decision in the suit and any application to enforce it is in point of law an application to execute the order and not the decree which it confirmed." Then he observes that before the decree-holder can obtain execution he must apply to the High Court under Section 610 of the Code to transmit the order of Her Majesty to the Court whose duty it is to issue execution and it is clear from the language of that section that the Court to which the order is transmitted has to execute not its own decree but the order itself, if this were not so, there would seem no necessity for applying to the High Court at all."