The Indian Decisions (New Series), Vol. 14 (Classic Reprint)
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Produktbeschreibung
Excerpt from The Indian Decisions (New Series), Vol. 14 The suit was dismissed on the 28th December 1891 by the Subordinate Judge of Chaibasa, in the Singhbum District, whose decree was affirmed on the 21st August 1896 by the High Court. The ground of dismissal was that the defendant, now first respondent, was the heir preferentially entitled. The petitioner now asked for a stay of execution of that decree pending his appeal. The High Court had refused to admit an appeal to Her Majesty in Council under chap. XLV of the Code of Civil Procedure. The petition stated that the estate was, and had been since the last proprietor´s death, in the possession of a manager under the Encumbered Estates Act. This manager had been appointed for the liquidation of debts which had been cleared off, leaving a balance now in his hands. It was further stated that the property yielded about Rs. 50,000 per annum, and that the first respondent was without means. The petitioner, after obtaining the order of the 18th July 1898, had applied to the High Court with reference to cls. (c) and (d) of s. 608 of the Civil Procedure Code for a stay of execution, and an order that the manager should remain in possession until the final order of Her Majesty in Council or until the defendant should give security for the compliance with any order that might be made. This was refused by the High Court on the 3rd November 1898, on the ground that the exercise by them of such authority was not provided for in that section, or in any other part of chap. XLV of the Civil Procedure Code. The prayer of the petition included the asking for that order to be reversed, but reliance was placed at the hearing on the general authority to grant relief. The application was made ex parte. Mr. J. D. Mayne for the petitioner argued that as the [3] property in suit, now in possession of the manager as stated, was ready to be delivered to the person who should ultimately be held to he entitled, it was right that it should remain pending this appeal. This would be carried out if a stay of execution should be ordered. If the refusal of such a stay of proceedings by the High Court had been right on the ground that their authority in the matter was limited by what was provided in s. 608 of the Civil Procedure Code to appeals which had been certified and admitted in India, then it was a case for the relief which the Queen in Council could order. The exercise of this authority was within the intent and meaning of chap. XLV of the Code, as was shown by s. 616. That section declared that nothing in that chapter should has the full and unqualified exercise of Her Majesty´s authority in receiving and regulating appeals, and "otherwise howsoever." The reason for the stay of execution pending an appeal by special leave was quite as complete as in the case of an appeal which, according to the decision of the High Court, fell within their powers under s. 608. It might be argued that, with regard to s. 616, an appeal for which special leave had been granted thereupon, came within the scope of those powers. But if that were not so, such an order could be granted here. Reference was made to Perladh Sein v. Bhoodoo Singh (1), Inder Kumari v. Jaipal Kumari (2), Rahimbhoy Habibhoy v. Turner (3), and Administrator-General of Bengal v. Premlall Mullick, Inre Premlall Mullick´s petition (4). About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com
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