Luchmun Persad Singh and ors. Vs. Kishun Persad Singh and ors.

Luchmun Persad Singh and ors. vs Kishun Persad Singh and ors.

Type Court Judgment Court Kolkata Decided Jan 20, 1882

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Citation: sooperkanoon.com/875926
Court: Kolkata
Judge: Richard Garth, C.J., ;Pontifex, ;Morris, ;Mitter and ;Prinsep, JJ.
Decided On: Jan 20, 1882
Subject: Civil;Limitation

Case Summary

AI-generated summary - not the official court judgment text.

Execution of an order of Privy Council - Limitation Act, (XV of 1877), Schedule ii, Article 180--Order in Council confirming a decree. -

Key legal issue: Civil;Limitation

Parties & Advocates

Appellant / Petitioner

Luchmun Persad Singh and ors.

Respondent

Kishun Persad Singh and ors.

Legal References

Cases Referred: Pitts v. La Fontaine L.R.
Reported In: (1882)ILR8Cal219

Excerpt

execution of an order of privy council - limitation act, (xv of 1877), schedule ii, article 180--order in council confirming a decree. - richard garth, c.j.1. we are of opinion that the application in question is governed by article 180 of the 2nd schedule of the limitation act.2. although an order of her majesty in council may confirm the decree of the court below, that order is undoubtedly the paramount decision in the suit, and any application to enforce it is, in point of law, an application to execute the order, and not the decree which it confirmed: see pitts v. la fontaine l.r. 6 app. cas. 482.3. the test of this is, that before the decree-holder can obtain execution, he must apply to the high court under section 610 of the code to transmit the order of her majesty to the court whose duty it is to issue execution, and it is clear from the language of that section, that the court to which the order is transmitted has to execute, not its own decree, but the order itself. if this were not so there would seem no necessity for applying to the high court at all.4. as the application, therefore, in this case was to execute the order of her majesty, it comes directly within the scope of article 180 of the limitation act.

Full Judgment

Richard Garth, C.J.

1. We are of opinion that the application in question is governed by Article 180 of the 2nd schedule of the Limitation Act.

2. Although an order of Her Majesty in Council may confirm the decree of the Court below, that order is undoubtedly the paramount decision in the suit, and any application to enforce it is, in point of law, an application to execute the order, and not the decree which it confirmed: see Pitts v. La Fontaine L.R. 6 App. Cas. 482.

3. The test of this is, that before the decree-holder can obtain execution, he must apply to the High Court under Section 610 of the Code to transmit the order of Her Majesty to the Court whose duty it is to issue execution, and it is clear from the language of that section, that the Court to which the order is transmitted has to execute, not its own decree, but the order itself. If this were not so there would seem no necessity for applying to the High Court at all.

4. As the application, therefore, in this case was to execute the order of Her Majesty, it comes directly within the scope of Article 180 of the Limitation Act.

Same Parties Luchmun Persad Singh and ors. vs Kishun Persad Singh and ors. Same Subject Civil;Limitation Same Judge Richard Garth, C.J., ;Pontifex, ;Morris, ;Mitter and ;Prinsep...

Civil;Limitation