TEGA SINGH Vs. BICHITRU SINGH

JUDGEMENT

(1.) We are invited by the appellant in this case to appoint a Receiver in respect of the properties which are the subject-matter in dispute on appeal to His Majesty in Council.

(2.) The decree of this Court affirmed the decree of the Court below, and an application for leave to appeal to His Majesty in Council was refused. Subsequently the plaintiff applied to the Judicial Committee and obtained special leave to appeal. The order of His Majesty in Council is in these terms: It is hereby ordered that leave be and the same is hereby granted to the petitioner to enter and prosecute his appeal against the said decree of the High Court of Judicature at Fort William in Bengal dated the 20 day of December 1905 upon depositing in the Registry of the Privy Council the sum of ?200 sterling as security for costs and that liberty be and it is hereby reserved to the respondent to move their Lordships for an order increasing the amount of the said security so to be deposited as aforesaid by the petitioner. And the Registrar of the said High Court is hereby directed to transmit to the Registrar of the Privy Council without delay the authenticated copies, under the seal of the said High Court, of the record, pleadings, proceedings and evidence proper to be laid before His Majesty on the hearing of this appeal upon payment by the petitioner of the usual fees for the same.

(3.) The petitioner now applies under Order XLV, Rule 13 of the Code of 1908 for the appointment of a Receiver in respect of the subject-matter of the appeal to His Majesty in Council. Objection is taken by the respondent that the rule in question has no application, because the appeal in this case was not certified by this Court, but was admitted by special leave granted by His Majesty in Council. In support of this contention, reliance is placed upon the observations of the Judicial Committee in the case of Moheshchandra Dhal V/s. Satrughan Dhal 27 C.I; 26 I.A. 281. In that case, special leave to appeal against the decree of the High Court was granted by the Judicial Committee An application was then made to this Court that the manager of the estates in dispute should remain in possession during the pendency of the appeal. The application was refused on the ground that the Code did not give this Court jurisdiction over the subject-matter pending an appeal not certified by themselves. The petitioner then moved the Privy Council and obtained an order for stay of proceedings. Lord Hobhouse in delivering judgment observed as follows: Their Lordships cannot direct the High Court to act where they have no jurisdiction, and they are not prepared to differ from the High Court on the question whether of not they have jurisdiction without hearing full argument on the point. They are at present disposed to agree that the jurisdiction does not exist; and though it may be very anomalous that property should be left without the possibility of interim protection, pending an appeal granted by special leave, the case is one of great rarity, and not unlikely to have escaped the notice of the framers of the Code."