JOGENDRA CHANDRA SEN Vs. WAZIDUNNISSA KHATUN

JUDGEMENT

(1.) The question which arises on this appeal is how, when a Division Bench of this Court has made an order dismissing an application for leave to appeal to His Majesty in Council with costs, the order as to costs is to be enforced. Until the present discussion there has been, I believe, no doubt that the usual and proper course is to transmit the order to the lower Court for execution. But it is now urged that the Court has no jurisdiction to do this, which means, in effect, that the Court has no power to enforce its own orders. I hope that is not so; and, I do not think that it is so. There is apparently no section in the Civil P. C. which applies directly to the case But the Code is not exhaustive, and it seems to me that when the Court bad jurisdiction, as undoubtedly it had, to make the order as to costs, there is an inherent power in the Court to have that order carried into effect; otherwise the order would be a farce. I do not say that Section 583 of the Code applies to the case, but I think that by analogy to that section, the practice which has prevailed for many years, of sending the order down for execution to the lower Court, can be supported. It is said that no rule has been made as might-have been done under Section 612 of the Code. Possibly that is because the practice had become and was so well established that the Court thought that no rule was necessary.

(2.) In my view there is an inherent power in the Court to make an order as to costs as it did in the present case, and that by analogy to Section 583, the proper Court to execute the order is the lower Court--in the present case, the Subordinate Judge of Jessore,

(3.) The order of the Subordinate Judge, dated the 7 of January 1905, must, therefore, be discharged, and the matter must go back so that the order as to costs may be executed. The appellant is entitled to costs of the appeal. Holmwood, J.