Rajendra Prasad Bose and Another vs Gopal Prasad Sen

Courtney-Terrell, C.J.—This is an application in civil revision from an order made by the Subordinate Judge of Cuttack in the following circumstances. The applicants brought a suit for possession and for mesne profits against the defendant alleging him to be a trespasser. The case ultimately went up to the Privy Council and there the applicants were successful and obtained'' their decree as claimed by them. This Court, upon an application made to it, sent the order of the Privy Council down to the lower Court for execution. It occurred to the respondent that there was a possibility of inducing the Privy Council to review the order made by that tribunal, and accordingly the respondent informed the Subordinate Judge that an application for review had been made and that money had been transmitted to London for the purpose of prosecuting the application for review. We are told, not that it is material to this decision but it is of interest, that the application for review to be based upon an allegation of mistranslation of a certain document which had been considered by the Privy Council in delivering their judgment. The learned Subordinate Judge, upon these facts being brought to his notice, stayed the execution of the decree which had been sent to him by this Court to execute. It is hardly necessary to observe that under Order 45, Rule 15, which deals with the execution of an order of the Privy Council, the executing Court had no power whatever to stay the execution. The mandamus of Order 45, Rule 15, Sub-rule 2 is clear and obligatory upon the Subordinate Court. There are circumstances in which a Court may stay the execution of a decree pending an appeal; but here no question of such circumstances arises. The final decree had; been passed and it was the duty of the executing Court to execute that decree without delay; and neither the Subordinate Court nor this Court has any power whatever to stay the execution of the decree.

In my opinion therefore this application for revision should be allowed with costs and the Subordinate Court should be directed to execute the decree and deliver possession forthwith. Hearing fee: fifteen gold mohurs.

Mahomed Noor, J.

I agree.