SAHAI AND OTHERS v. MUSSAMUT In the year 1862 Sudaburt Pershad brought a suit to recover 1877 possession of the joint family property sold under the decree against JOGESSUR the widows, making his co-sharer, Hureenath Pershad, a defendant. (Hureenath Pershad, being then a minor, was represented in the suit by his mother, Phoolbas Kooer, and his title was admit- MURACHO ted by Sudaburt Pershad.) In that suit Sudaburt Pershad obtained a decree for possession of his moiety of the joint family Statement. property. Thereupon, Phoolbas Kooer, on behalf of her minor son, Hureenath Pershad, instituted a suit for the recovery of his moiety of the joint family property, making Sudaburt, who disclaimed, a defendant, and obtained a decree in the Court of First Instance. This decree was reversed by the High Court on appeal on the 18th of November 1870. (See 12 W. R., 1 F. B. ; 3 B. L. R., 31. F.B.; see also 14 W. R., 339.) Subsequently to the passing of the last mentioned decree, Hureenath Pershad attained full age, and the High Court, on being applied to, granted leave to both his mother and himself to appeal to Her Majesty in Council against it, and they did so-the record of the appeal being despatched to England on the 21st of December 1872. Shortly afterwards, Hureenath Pershad became a lunatic, his property passed under the management of the Court of Wards, and the Privy Council, on the 20th of November 1873, ordered that Moulvie Haji Syud Wuzzeeroodeen, manager under the Court of Wards of the estate of Hureenath Pershad, should be entitled to prosecute the appeal as such manager on behalf of Hureenath Pershad, and to take all necessary proceedings therein. Hureenath Pershad died on the 12th of April 1874, leaving a minor widow, Mussamut Muracho Kooer; and on the 5th of August 1875, the Privy Council ordered that the name of the Collector of Sarun, for and on behalf of Mussamut Muracho Kooer, be substituted on the record for the name of Hureenath Pershad, and that the appeal be revived and prosecuted in the name of the Collector of Sarun as next friend of Mussamut Muracho Kooer, who claimed to be the sole widow, heiress, and representative of Hureenath Pershad. A decree of the Privy Council, reversing the decree of the Calcutta High Court of the 18th of November 1870, and affirming that of the Court of First KOOER. 1877 Instance, was passed on the 1st of February 1876. (See 25 W. R., JOGESSUR 285; I. L. R., 1 Cal., 226; L. R., 3 Ind. App. 7.) SAHAI AND OTHERS v. MUSSAMUT On the 19th of July 1876, the Court of Wards, on behalf of Mussamut Muracho Kooer, applied to the Subordinate Judge of MURACHO Sarun for execution of the Privy Council decree. This application KOOER. was rejected by the Subordinate Judge on the ground that the Statement. property in dispute being joint family property, the widow of Hureenath Pershad could not recover possession thereof so long as the son of Sudaburt Pershad was alive; and that Mussamut Muracho Kooer, not being proprietor of any entire estate, the Court of Wards could not represent her. On appeal to a Division Bench of the High Court (JACKSON and WHITE, J.J.), this deci sion was reversed, the Court holding that their Lordships of the Privy Council considered the suit by Sudaburt making Hureenath a defendant, and the suit by Hureenath making Sudaburt a defendant, together with Sudaburt's disclaimer in the latter suit, to be sufficient evidence of a separation'; and that the lower Court was not competent to go behind the decree, as regards the substitution of names on the record of the Privy Council Appeal. The judgment-debtors applied for leave to appeal to the Privy Council against the order of the Division Bench. Mr. R. E. Twidale, for the Petitioner, the Judgment-Debtor. Mr. H. Bell (Legal Remembrancer), and Baboo Unnoda Prosad Banerjea, for the Decree-Holder. MARKBY, J. MARKBY, J.: In this case the present applicants having been originally defendants in a suit brought in this country, succeeded in obtaining the dismissal of that suit by this Court; but the Privy Council reversed that decision and gave a decree against the present applicants. The successful party then applied for execution, but the Subordinate Judge, for the reasons stated in his decision, refused to issue execution. Against this order the decree-holder appealed to this Court, and this Court, reversing the decision of the Subordinate Judge, See 25 W. R., 285; I. L. R., 1 Cal., 226; L. R., 3 Ind. App. 7. See also Appovier's case, 11 Moore's Ind. App. 25. ordered that the decree-holder should be allowed to issue execution. Against this order the judgment-debtors desire to appeal to the Privy Council. There is no dispute that the property involved is of the value of Rs. 10,000 and upwards. There is a decision of a Full Bench (Mussamut Valeaty Begum vs. Rugghoonath Pershad, 8 W. R., 147) that orders of this Court, made on appeal in reference to the execution of a decree, are appealable to the Privy Council. But there is still a further and somewhat difficult question to consider in this case, namely, whether the appeal lies under clause (a) of section 595 of the Code of Civil Procedure, or under clause (c) of that section. If it lies under clause (c), in other words, if it is necessary that a certificate would be granted that the case is one fit for appeal, I should not think it right to grant such a certificate, but should leave the parties to make any such application as they might be advised direct to the Privy Council. The applicant, therefore, must rely upon clause (a). Under that clause the party aggrieved has no right of appeal except against a "final judgment, decree or order," and it is argued by the Legal Remembrancer, who appears to show cause against this application, that the order of this Court directing execution to issue is not a final one, but only an order which initiates further proceedings. The word "final," it is contended, is used in contradistinction to "interlocutory" and "preliminary" which words occur in section 40 of the Letters Patent of 1865, and that by a "final" order is meant an order which terminates the proceedings in favor of one of the parties. The word "final" is capable of bearing a variety of meaning. It is used twice in clause (a) of section 595 of the Code of Civil Procedure, and once in section 597, but even in such close proximity it is made to carry two, if not three, different significations. The construction, however, contended for is a very reasonable one when dealing with orders made prior to decree, which are only so many steps towards the ultimate decree, and which may well be called "preliminary" or "interlocutory," and in this sense not "final;" and it is quite reasonable to preclude the parties from appealing against such orders, because the 1877 JOGESSUR AND OTHERS v. MUSSAMUT Judgment. 1877 time must ultimately come when the party complaining of them JOGESSUR may have his redress. If the case finally goes against him, he can then, if it is worth his while, contest the validity of any order made prior to the decree, which, in the eye of the law, comprehends MURACHO all the previous steps by which it was arrived at. SAHAI AND OTHERS v. MUSSAMUT KOOER. But when one comes to deal with orders subsequent to decree, Judgment. the case is different. An order that execution shall issue is MARKBY, J. not "final," in the sense above contended for; nor, on the other hand, is it "preliminary" or "interlocutory." If this order is not appealable now, it is extremely difficult to say that it will ever become so. Indeed, I do not know any meaning of the word "final" which can be applied to orders made subsequent to decree, so as to make this section work quite satisfactorily. The decision of the Full Bench, above referred to, is not conclusive upon the point. Both sections of the Letters Patent by which the matter was then regulated were referred to, but it is not said under which of those sections orders of this class are appealable. Of course, it is necessary to be careful when denying to a party his right of appeal, and the strong observations of Sir BARNES PEACOCK in the Full Bench case I have referred to have made me hesitate before putting such a construction on clause (a) of section 595 as will practically have that effect. Nevertheless, considering how vexatious the right of appeal against orders in execution might become if not placed under some restriction, I shall hold that the order of this Court directing execution to proceed is not final" decree, judgment, or order within the meaning of clause (a) of section 595 of the Code of Civil Procedure, and that the applicant cannot appeal to the Privy Council without special permission. As I am not prepared to give this special permission, the application will be refused. It would be very convenient if the construction of this clause of the Code were finally determined by the Privy Council. Application for Execution-Heirs of Judgment-debtor-Act VIII of 1859, sections 203 210, 211.1 Where an application is made and granted under section 210, Act VIII of 1859, and property is attached which is claimed by the heir as his self-acquired property, the Court should proceed under section 203, without requiring any fresh application to be made under that section. SPECIAL APPEAL from an order passed by the Officiating Judge of Backergunge, affirming that of the Second Subordinate Judge of that District. This was an application for execution of a decree against the representatives of the judgment-debtor. The application was granted, and under it certain property was attached and advertised. One of the representatives claimed the property as his selfacquired property. It appeared that, after the death of the judgment-debtor, this same property was attached and sold by another decree-holder in execution of a decree previously obtained against him; and that the purchaser had re-sold it to the person who now claimed it. The Court of First Instance allowed the claim, and refused to require the representatives to account for the property of the deceased which had come into their hands, on the ground that the application had not been made under section 203, Act VIII of 1859. The decree-holder appealed, but the appeal was dismissed; he then brought this special appeal. Baboo Kashi Kant Sen, for Appellant. 1 Now re-enacted in sections 234, 252, Act X of 1877. |