Janaki Ammal vs Narayanaswami Aiyar

The first objection taken to the transmission of the decree of the Privy Council for execution is that the original order in Council has not been

filed in this Court and therefore there is no ''certified copy'' which should accompany the application for execution as required by Order XLV, Rule

15 of the Code of Civil Procedure, 1908. The facts set out in C.M.P. No. 460 of 1917 and the affidavit of the petitioner explain how the original

order has miscarried and has not yet reached the petitioner. The order was passed about the end of July 1916 and since the successful appellant

before the Privy Council has not yet received the original order, he has put in a plain printed copy of the order in Council along with his petition and

asks us to transmit the decree for execution to the lower Court.

We think the principle of the decision of the Privy Council in (1882) L.R. 10 I.A. 4 (Privy Council) applies to a case like this. As pointed out

there, the provisions of Section 610 of the old Code of Civil Procedure, which corresponds to Rule 15 of Order XLV of the present Code should

not be construed as restricting the only possible evidence to the certified copy, but as directory words, with the object of ensuring that the proper

information upon the subject of any Order in Council should be supplied to the Courts in India. No doubt the order in Council in that case was in

possession of the opposite party and he neglected to file it. But the principle applies to the present case and we are satisfied upon the affidavit and

other materials placed before us that the plain printed copy filed along with the petition is a true copy of His Majesty''s order in. Council. In fact

this is not denied. The case Janaki Ammal v. Narayanaswami Aiyar (1916) 31 M.L.J. 225 has also been reported in the authorised reports in ILR

39 M. 634 where the decree is given in the same terms as in this plain copy. We have been referred to a case in the Allahabad High Court

(Damodar Das v. Brij Lal ILR (1915) A. 567. But there it appears that there was no copy of the order in Council at all before the executing

Court, but only the judgment or recommendation of their Lordships of the Privy Council. That is not the case here.

Another objection has been urged by the learned pleader for the respondent that the Registrar did not give notice to him at the time of taxing the

costs. We have however heard what objections he has to urge as regards the costs as taxed, and his principal objection is that no pleader''s fees

should have been allowed in this Court because no certificate of fees was filed within seven days as required by the rules. But then the order of this

Court as regards costs was that each party was to bear his own costs and therefore it was not expected that the pleader would file any certificate

of fees. That order has, however, been reversed by their Lordships of the Privy Council. We think in the circumstances, the Registrar was right in

accepting the certificate of fees.

C.M.P. Nos. 460 and 461 of 1917 are therefore allowed.

C.M.P. No. 922 of 1917 is dismissed with costs.