CHATRAPAT SINGH DURGA Vs. DWARKANATH GHOSE

JUDGEMENT

(1.) MR . J.H.A. Branson, in support of the petition, stated that it was made in its present form for leave to appeal from the order of the 27th April 1892 as well as for a stay of execution, because it had been understood that hitherto no stay of execution had been granted here when the Court in India, admitting the appeal, had refused to stay execution; but a stay had been granted only when special leave to appeal had been obtained from their Lordships. A note on Indur Kunwar v. Jaipal Kunwar I.L.R. 15 Cal. 725 : L.R. 15 I.A. 127, in Wheeler's Privy Council. Law, 446, related to this. He referred to the difference of opinion between the Judges below, contending that on the grounds taken before them they should have granted a stay in the discretion given them by Section 608, Sub-section (c).

(2.) THEIR Lordships were of opinion that, as the two Judges of the Court below had differed in opinion, their discretion had not been exercised, as they were empowered to exercise it, under Section 608 of the Civil Procedure Code, without there being occasion to grant special leave to appeal from the order of the 27th April 1894. The case was one in which a stay of execution should be ordered on this petition