Musammat Hira Bibi vs Lachmi Narayan and Others

Dawson Miller, C.J.—The question for determination in this case is whether there is any substantial question of law for decision by their Lordships of the Privy Council if this application for leave to appeal should be granted.

The facts shortly stated are these: The respondents obtained in the High Court a mortgage decree against six defendants including Hira Bibi. Hira Bibi and the other defendants appealed from the decision of the High Court to His Majesty in Council. Pending that appeal the appellants applied for a stay of execution of the decree of the High Court and a stay was granted on certain terms. The appellants provided a security bond jointly which contained the following provision: "We, therefore, do declare and give out in writing that if the Privy Council Appeal No. 57 of 1921 be decided against us (the executants Nos. 1 to 6) and the decree-Holders take out the execution of the decree and the entire decretal amount be not recovered by them from the value of the mortgaged property, in that case the decree holders shall fee entitled to recover the balance of the decretal amount to the extent of Rs. 35,000 from the properties specified in this security bond" A second bond for an amount of Rs. 10,000 was subsequently executed containing similar terms.

The result of the appeal to the Privy Council was that the appeal on behalf of five out of the six executants of the bond failed but the appeal on behalf of Hira Bibi succeeded on the ground that her signature had not been properly attested. The suit was accordingly dismissed as against her but the decision was affirmed as against the other five executants. In these circumstances execution proceeded against the mortgaged property which proved insufficient. Thereupon the decree-holders sought to take out execution against the security provided by the two bonds already referred to. The defendants, the judgment-debtors, contended that as the suit had failed against one of the executants, therefore, the security bond was no longer available. Alternatively, as I understand, it was urged that at all events that proportion of the security bond which represented the proportionate interest of Hira Bibi should be freed from execution.

Both the trial Court and this Court on appeal decided against the contention of the judgment-debtors and held that the security bond was available for the un-recovered balance of the mortgage.

From that decision Hira Bibi seeks to appeal to His Majesty in Council and the only question which arises is one of the interpretation of the security bond in suit. In dealing with an application of this sort I fully appreciate that it is no part of the duty of the Court to prejudge the case on the merits but at the same time it is our duty under the provisions of Section 110 of the CPC to determine where a point of law arises for discussions on appeal to His Majesty in Council whether there is any substance in that point. In order to entitle the appellant to appeal there must be not merely a question of law but a substantial question of law in the appeal which it is sought to prefer to His Majesty in Council. We must, therefore, make up our minds on that point. Speaking for myself I have not the slightest doubt that the decisions of the trial Court and of the High Court on appeal were right and that no other interpretation could be given to the words of this security bond. I must, therefore, hold that there is no substantial question of law for determination by His Majesty in Council and dismiss the present application.

Another matter which induces me to take this course is that if we should grant leave although of opinion that the appeal does not really involve a substantial question of law, then all the expense of preparing the case for appeal to His Majesty in Council will be incurred and if our opinion should be well founded the expense would be entirely, wasted I think in the circumstances, taking the view which we do that it is much more desirable that we should dismiss this application and the appellant if she is so advised, can apply without any considerable expense to His Majesty in Council for special leave to appeal If it should turn out that the view which I have now expressed is not the correct view she would undoubtedly obtain special leave to appeal and no great harm would be done In these circumstances it seems to me that this application must be dismissed with costs. Hearing-fee five gold mohurs.

Adami, J.

I agree.