Book Description

Excerpt from The Indian Decisions (New Series), Vol. 11 On the 5th July 1892, the High Court declared the admission of an appeal under s. 603. An order was then made in the Court of first instance for execution of the decree of 20th April 1892, whereupon the defendant applied under s. 608, sub-s. (c)of the Civil Procedure Code, to the High Court for an order staying execution, and obtained, on the 12th December 1893, an order for cause to be shown why an order to that effect should not be made upon security being given. The grounds were these: first, that the land might deteriorate, if mismanaged; secondly, that landmarks and boundaries might be caused to disappear, thus giving rise to disputes with proprietors of adjoining land; thirdly, that as the decree-holders were executors of one who was the shebait of the institution to which the property had been awarded, difficulties might arise with any successor in office as to a refund of mesne profits, accounts, and other matters. The decree-holders having been heard on the 27th April 1894, Norris, J., the senior Judge of the Bench, was of opinion that there were no special circumstances in the case to warrant a stay of execution. In this his colleague. Banerjee, J., did not concur, holding that, in regard to the position of the decree-holders applying for execution and to the kind of land, a chur, which was in dispute, this was a fit case for an order staying execution upon security being given. The adverse judgment of tho senior Judge prevailed, and the order was refused. The petition was for special leave to appeal from the order of the 27th April 1894, as well as fora stay of execution of the decree of the 20th April 1892. The application was ex parte. 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 [3] been granted here when tho Court in India, admitting the appeal, bad refused to stay execution; hut 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 (1), 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 s. 608, sub-s. (c). 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 s. 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. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works.