JUDGMENT

Authored By : Mookerjee, Charles Peter Caspersz

Mookerjee, J.

1. This is an application for leave to appeal to His Majestyin Council against an order under rule 5 of Order XLI of the Code of 1908, bywhich this Court refused to stay proceedings in execution of the decree in whatis known as the Dumraon Raj case, Srinibash Prasad Singh v. Kesho Prosad Singh: 13 C.L.J. 365; 9 Ind. Cas. 862 [LQ/CalHC/1911/130] ; 15 C.W.N. 475. Twoquestions arise for consideration upon this application which purports to havebeen made under section 109 of the Code read with Order XLV, namely, firstwhether the order against which leave to appeal is sought, is a final orderpassed on appeal within the meaning of clause (a) of section 109; and,secondly, if the order is not of this description, whether the Court shouldcertify the case as a fit one for appeal to His Majesty in Council within themeaning of clause (c) of section 109.

2. In so far as the first of these questions is concerned, Iam not prepared to hold that the order against which leave to appeal is sought,is a final order passed on appeal by this Court. In the first place, it iswell-settled, by a series of decisions which will be found reviewed inSaratmoni Debt v. Bata Krishna Banerjee 10 C.L.J. 336 : 4 Ind. Cas. 459 [LQ/CalHC/1909/363] , thatthe term "final order" in section 109 of the Code, denotes an orderwhich finally decides any matter directly at issue in the case in respect ofthe right of the parties. The order against which leave to appeal is sought, isclearly not an order of this description. It does not deal with the merits ofthe controversy between the parties to the litigation; but it merely decidesthat circumstances have not been established such as would justify an order forstay of execution of the decree under appeal; it is, therefore, obviously aninterlocutory order which does not, in any way, affect the decision on the meritsof the case [See Chundi Dutt v. Pudmanund Singh 22 C. 928 and Mahomed Musaji v.Ahmed Saleji 13 C.L.J. 507 : 10 Ind. Cas 439] [LQ/CalHC/1911/161] In the second place, it is beyondcontroversy that the order in question was not passed on appeal within themeaning of clause (a) of section 109 of the Code. As pointed out by this Courtin the case of Secretary of State for India in Council v. British India SteamNavigation Co. 13 C.L.J. 90 : 9 Ind. Cas. 183 [LQ/CalHC/1911/4] , an order cannot be deemed tohave been passed on appeal unless it is an order passed by a superior Court inreversal, modification or-affirmance of an order of an inferior Court. Toconstitute appellate jurisdiction, there must exist the relation of superiorand inferior Court and the power on the part of the former to review thedecisions of the latter. In the case before us, when the application for stayof execution was refused, it could not be said that the order of this Court waspassed on appeal. It is plain, therefore, in my opinion, that the applicationfor leave to appeal to His Majesty in Council, does not fall within clause (a)of section 109 of the Code.

3. In so far as the second question is concerned, we have toconsider whether the order against which leave to appeal is sought, is such asto justify a certificate from the Court that the case is a fit one for appealto His Majesty in Council, although it is not covered by either clause (a) orclause (b). Now, it has been repeatedly ruled that clause (c) of section 109 isclearly intended to meet special cases, such, for example, as those in whichthe point in dispute is not measurable by money, though it may be of greatpublic or private importance. As Lord Hobhouse said in Banarsi Prasad v. KashiKrishna Narain 28 I.A. 11 : 23 A. 227, to determine whether a case is of thatkind, though it is left entirely in the discretion of the Court, is a judicialprocess which could not be performed without special exercise of thatdiscretion evinced by the fitting certificate. It may be observed that thediscretion thus vested in the Court has been always very sparingly used, forinstance, as pointed out in the case of Mahomed Musaji v. Ahmed Saleji 13C.L.J. 507 : 10 Ind. Cas 439 [LQ/CalHC/1911/161] , a special certificate was refused by this Courtin the case of Maniran Kolita v. Keri Kolitani 5 C. 776, although the questionraised was by no means free from doubt and difficulty, and was in fact one ofconsiderable importance to the entire Hindu community. Now, in the case beforeus, what are the special facts upon which a certificate of fitness is claimedunder clause (c) of section 109 of the Code. The plaintiff sued for declarationof his title to what is called the Dumraon Raj estate, and obtained a decreefor possession as against the infant defendant under the guardianship of themanager appointed by the Court of Wards. The infant defendant appealed to thisCourt, and on his behalf, an application was made for stay of execution of thedecree of the Court below, which had been made after a protracted trial lastingfor many months. The decree-holder offered to furnish adequate security forrestitution before he should take possession in execution of the decree made inhis favour. Upon the facts disclosed in the affidavits of both sides, thesenior member of the Bench held that the appellant had failed to make out thepossibility of substantial loss which alone would justify a stay of executionunder rule 5 of Order XLI. This view by itself would be sufficient for thedisposal of the application for stay of execution, as it would prevail under section36 of the Letters Patent. Now, it is plain that the question whether or not theapplicant had established that substantial loss might result to him ifexecution was not stayed pending the hearing of the appeal presented to thisCourt, is not a question of such exceptional importance as would justify aspecial certificate of fitness under clause (c) of section 109. It has beensuggested, however, by the learned Vakil for the appellant-petitioner, that thecase raises a question of constitutional law of some importance, inasmuch asone member of the Bench decided that if execution had to be stayed, theguarantee offered by the Secretary of State for India in Council for thebenefit of the appellant, could not be accepted as security, because it was invalidin law. In my opinion, there is no substance in this contention. In the firstplace, the question would not at all require consideration, unless it wasdecided that grounds had been established to justify a stay of execution. Inthe second place, even if such grounds were established, preliminarydifficulties would have to be overcome by the appellant, any one of which mightrender an examination of the question suggested, entirely superfluous. TheCourt unanimously held first, that as the Advocate-General, who had appeared asamicus curiae for the Secretary of State, had not furnished any information toshow that the requirements of section 41 of the Government of India Act, 1858,had been complied with, that is, that the Secretary of State for India in Council,with the concurrence of a majority of votes at a meeting, had offered to givethe guarantee, the Court would not accept the security as valid in law; and,secondly, that assuming the security to have been offered by theGovernor-General in Council, as the Advocate General had not given anyinformation as to the existence or otherwise of the elements required tovalidate a contract under section 1 of the Government of India Act, 1859, theCourt could not accept the guarantee as a valid security. These aredifficulties in bar, which have not been removed, as the requisite informationhas not been placed before the Court, and so long as they stand, no questionobviously arises whether it is competent to the Secretary of State for India inCouncil or the Governor-General in Council to offer to indemnify the successfulclaimants to the Raj Estate out of the revenues of India. It may further bepointed out that two additional reasons were given by the Court against stay ofexecution namely, first, that as the security, if accepted, cannot be enforcedin execution under section 145 of the Code of 1908, it ought not to be forcedupon the decree-holder; and, secondly, that in any view, the validity of theguarantee is so doubtful that the Court will not depart from its well-settledpractice not to accept a security which is not reasonably free from doubt anddifficulty. These, obviously, are questions which may arise in every ordinarycase in which an application is made for stay of execution of a decree under appeal;they are undoubtedly not questions of such special public or private importanceas would justify a certificate under clause (c) of section 109. It is,therefore, reasonably so plain that the question of constitutional law which,it is suggested, may arise in the case, and upon which the two members of theCourt were divided in opinion, would not require consideration, unless theunanimous decision upon preliminary points of no exceptional difficulty orimportance was reversed. Under such circumstances, I am not prepared to holdthat we should certify the case itself as a fit one for appeal, when it is morethan probable that its decision may not involve the examination of any questionof special public or private importance. It may further be pointed out that theSecretary of State for India in Council is not a party to these proceedings,and the present application has not been made on his behalf. Whether in view ofthese facts, their Lordships would decide the constitutional question raised,is a matter entirely in their discretion, and as our refusal to grant a specialcertificate leaves it open to the appellant to apply for special leave to HisMajesty in Council, we are clearly of opinion that we ought not to create aprecedent (See Motichand v. Ganga Parshad Singh 29 I.A. 40 : 24 A. 174 andClarke v. Broiendra Kissore Roy : 13 C.W.N. 1127; O Ind. Cas.786]. Indeed, if applications of this character are encouraged, the Court mayhave to deal with applications for leave to appeal to His Majesty in Councilagainst orders refusing stay of executions in all cases where the unsuccessfullitigant in the Subordinate Court is wealthy enough or has funds at hisdisposal sufficient to enable him to risk the necessary expenditure.

4. We may add that the learned Counsel for the respondentargued that clause (c) of section 109 ought to be interpreted as restricted inits application to cases of final orders precisely in the same manner asclauses (a) and (b). We are not, however, prepared to accept this constructionas reasonable. The obvious difference in phraseology between clauses (a) and(b) on the one hand, and clause (c) on the other, shows conclusively that thereis no substance in the contention, and there is plainly nothing in Order XLValso, which, in any manner, restricts the Scope of clause (c). We may finallypoint out that the application does not purport to have been made under section40 of the Letters Patent: but, even if the application were so made, we areclearly of opinion that it ought not to be granted. An order under that sectioncannot be claimed as a matter of right, and the present is obviously a case inwhich the discretion mentioned in section 40 ought not to be exercised infavour of the appellant.

5. On the whole, therefore, I am of opinion, that acertificate ought not to be granted under clause (c) of section 109. Theapplication is, therefore, refused with costs, ten gold mohurs.

Charles Peter Caspersz, J.

6. This is an application, under Order XLV, rule 2 of theCode of Civil Procedure, for leave to appeal to His Majesty in Council, and itpurports to be made with reference to clauses (a) and (b), section 109, of theCode. The order complained of by the petitioner was passed by this Court(Mookerjee and Teunon, JJ.) on the 2nd March, 1911. It was an order, underOrder XLV, rule 5, refusing stay of execution of a decree made by theSubordinate Judge of Shahabad (at Arrah), directing the petitioner to make overthe extensive property, known as the Dumraon Raj, to the plaintiff who is theopposite party in this application, That decree is under appeal to this Court.

7. I am of opinion that this application should be refused,but it will be open to the petitioner to invoke the prerogative right of theCrown and to apply to the Judicial Committee for special leave to appeal to HisMajesty in Council.

8. Apart from any reported cases, I think, this applicationcan be decided on the wording of the Code. Now, clause (a) of section 109,declares that an appeal shall lie from any decree or final order passed onappeal by a High Court. The order complained of is not of that description, itwas not passed on appeal: it was on interlocutory order refusing to stayexecution of the decree of the Subordinate Judge. Accordingly, reliance hasbeen placed by the learned Vakil for the petitioners, on clause (c) of thesection which provides that an appeal shall lie to His Majesty in Council fromany order (not necessarily a final order) when the case as hereinafter providedis certified to be a fit one for appeal to His Majesty in Council." It hasbeen urged on behalf of the petitioners that this is eminently a fit case forleave to be granted to appeal from the order in question, because it raisesimportant constitutional issues.

9. The precise grounds taken in the application clauseare:--(a) that this Court ought to have held that substantial loss would resultto the petitioners unless an order was made for staying the execution of thedecree; (b) that this Court ought to have held that the security offered by thepetitioners was a good and valid security and the grounds on which it has heldotherwise are erroneous in law; (c) that in any case an opportunity ought tohave been given to the petitioners to give fresh security.

10. Even if the assumption be made, in agreement with theview expressed by Mr. Justice Teunon, that substantial loss may result to thepetitioners if the possession of the Court of Wards is disturbed pending thedisposal of the appeal by this Court, it has still to be shown that theplaintiff is in a position to disturb that possession. This he will not be ableto do unless he furnishes security for restitution and we have not been toldthat he is prepared to undergo that heavy responsibility. Both the partiesappear to be in a difficult position which may result in a Receiver beingappointed on the application of the petitioners, or the opposite party, or ofboth. In that event, also, as in every case of protracted litigation, theestate might suffer, but the petitioners alone would not sustain any peculiarsubstantial loss.

11. Secondly, it is the settled practice of this Court thatwhen security is offered for stay of execution of a decree it is not acceptedunless its legal validity and sufficiency is beyond all reasonable doubt. Thepetitioners were prepared to offer security in terms of the telegram, dated the31st December 1910, from the Secretary of State for India to His Excellency theViceroy. That telegram was as follows:--

"Your telegram dated 22nd December, Dumraon Estate. Isanction security being furnished by Government of Bengal to the extentrequired by High Court Judicature for stay of execution pending final decisionon appeal. I sanction also your proposal as to wards maintenance and provisionsof funds for prosecuting appeal."

12. In the absence of fuller details, the learned Judgeswere constrained to reject the security offered. It was open to the LegalAdvisers of the Crown to supply the fuller details required. That they did notdo so affords no ground for appealing to the Judicial Committee. The judgmentof this Court was based on the facts supplied by the learned Advocate-General,who appeared as amicus curiae, and it is impossible to say that the decision soarrived at is a matter of public or private importance.

13. Lastly, we are not told, and there is nothing in thepapers to show, that the petitioners are, or ever were, ready and willing tofurnish fresh security of any other kind than that indicated in the telegramfrom the Secretary of State for India.

14. I agree, therefore, that this is not a fit case forleave to be granted to appeal to His Majesty in Council.

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Srinibash Prosad Singhvs. Kesho Prosad Singh(21.04.1911 - CALHC)