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Amir Hasan (Decree-Holder) v. Ahmad Ali (Judgment-Debtor).
Analytical Summary of the Opinion by Sir John Edge, C.J.
Factual and Procedural Background
This is an application under section 623 of the Civil Procedure Code for review of an order made by Sir John Edge on 28 August (year in text implied) that stayed execution of a decree of the Subordinate Judge, Allahabad in the suit Ahmad Ali v. Amir Hasan Khan.
The underlying suit was for malicious prosecution, brought by Ahmad Ali against Amir Hasan Khan. The Subordinate Judge, on 30 June 1884, decreed Rs. 500 against the defendant with proportionate costs and interest at 6% per annum. Both parties appealed to the Judge of Allahabad. On 6 May 1885 the defendant's appeal was dismissed with costs, and on the plaintiff's appeal the Judge made a decree in his favour for Rs. 2,835 with proportionate costs in both Courts. By a judgment of this Court in appeal the decrees of the Judge of Allahabad and the Subordinate Judge were set aside and the appeal of Amir Hasan Khan to this Court was decreed with costs.
To prevent execution on the Subordinate Judge's decree, Amir Hasan Khan deposited Rs. 711-3-6 in Court on 22 August 1884; notwithstanding his prayer that the amount be retained in deposit until his appeal was decided, that amount was paid out to Ahmad Ali. After the Judge of Allahabad's decree, Ahmad Ali took out execution for Rs. 2,883-3, and Amir Hasan deposited that sum in Court on 11 July 1885.
Ahmad Ali applied for a review of this Court's judgment of 18 March 1886; on 29 July 1886 Mr. Tyrrell ordered the petition to be laid before the Bench who delivered the judgment. That application for review had not been granted at the time of Sir John Edge's proceedings.
On 28 August an ex parte application (by Mr. Amiruddin on behalf of Mr. Reid for Ahmad Ali) was made to Sir John Edge, sitting as vacation Judge, praying that execution of the decree pending in the Subordinate Judge's Court be stayed pending disposal of the review application. Sir John Edge granted an order staying execution. Amir Hasan Khan later applied to Sir John Edge, under s. 623, for review of that ex parte order; hearings followed (3rd and 8th of the month) and the matter was argued before Sir John Edge.
Legal Issues Presented
- Whether Sir John Edge had jurisdiction to make (on 28 August) an order staying execution of the decree pending a review application under the provisions of the Civil Procedure Code (specifically whether ss. 545, 546 or 647 applied).
- Whether, and to what extent, section 623 of the Civil Procedure Code permits a Judge to review his own order (including ex parte orders) and how broadly the words “or for any other sufficient reason” in s. 623 should be read.
- Whether the ex parte order staying execution should be reviewed and set aside on the grounds stated by Amir Hasan Khan (lack of jurisdiction, absence of notice, interference with rights under a final unappealable decree).
Arguments of the Parties
Appellant's Arguments (represented by Mr. Amiruddin for Ahmad Ali)
- Contended that if ss. 545 or 546 did not confer power to make the order, the Judge had jurisdiction under s. 647 of the Civil Procedure Code to make the stay.
- Cited the case Tara Chand Ghose v. Anund Chander Chowdry in support of the jurisdiction contention (in relation to s. 647).
- Argued that s. 623 did not limit review strictly to discovery of new matter or error apparent on the record (though initially did not admit lack of jurisdiction under ss. 545/546), and relied on the section to support the original stay; however, in contesting review, initially contended that review under s. 623 is available only on discovery of new/important matter or on mistake apparent on the face of the record.
- Explained that when the ex parte application was made to Sir John Edge he had no information as to the date of the 18 March judgment and was not sufficiently instructed as to the cause of the delay in applying for review to argue that point before the Judge.
Respondent's Arguments (represented by Mr. Sundar Lal for Amir Hasan Khan)
- Contended that Sir John Edge had power to review his own order under s. 623 and that he ought to exercise that power to review the ex parte stay.
- Argued that the stay order had been made without jurisdiction—ss. 545, 546 and 647 did not apply to justify the stay—and thus the order was invalid.
- Maintained that the application for review of the 18 March judgment (filed 29 July) was out of time, so there could be no valid review and consequently no valid basis for a stay pending such a review; the Judge should have been informed of this when the stay was sought.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tara Chand Ghose v. Anund Chander Chowdry | Cited by counsel (Mr. Amiruddin) in support of the proposition that the Judge had jurisdiction (arguably under s. 647) to stay execution. | The Court noted the citation by appellant's counsel but concluded that s. 647 did not apply in the present circumstances and therefore the reliance upon that authority did not sustain the jurisdiction to make the stay. |
| Reasut Hosien v. Hadjee Abdoollah (Privy Council) | Discussed somewhat similar provisions of Act VIII of 1859 concerning review; authority for a broader reading of review powers than a strict English test requiring positive error or new evidence. | The Court relied on the Privy Council's discussion to support the view that a Court's power of review under statutory provisions may not be confined to only positive error in law or newly discovered evidence; this supported a broader interpretation of s. 623. |
| Fritz v. Hobson (Fry J.) | Held that in every order of the Court in England, liberty to apply to the Court is implied without being expressly reserved. | The Court invoked this principle to support the conclusion that when a stay of execution or injunction is granted ex parte, an implied liberty to apply to the Judge to vary or set aside his order must be recognized to prevent hardship and unfairness. |
Court's Reasoning and Analysis
The Judge proceeded in two principal stages: (1) to determine whether he had jurisdiction to make the original ex parte order of 28 August staying execution; and (2) if he lacked jurisdiction, whether there was sufficient reason to review and set aside that order.
On jurisdiction to make the August 28 order, the Court analyzed the relevant Code provisions:
- The Court found the judgment in appeal of 18 March to be final and not appealable, and observed that at the date of the August order and then no review had been granted under s. 630. Therefore ss. 545 and 546 (which authorize stays in relation to appealable decrees) did not apply.
- The Court considered s. 647 but concluded it was not intended to cover stays of execution after a final unappealable decree and before any review; instead s. 647 was likely meant for various procedural matters (guardianship, custody, probate evidence, some revenue procedure, Divorce Act matters, etc.) rather than providing the specific stay-power analogous to ss. 545/546. The absence of specific enabling words for stays in Chapter XLVII (which deals with review) led the Judge to conclude that Parliament did not intend to give a Judge such a power by s. 647.
- Given the above, the Court concluded that Sir John Edge had no jurisdiction to make the ex parte order staying execution on 28 August.
On the question of review under s. 623, the Court offered a broader interpretive view:
- The Judge rejected a narrow construction (advanced in part by appellant's counsel) that would limit review strictly to cases of apparent error on the record or newly discovered evidence, observing that s. 623's phrase “or for any other sufficient reason” must be given effect and is not limited to the English grounds for review.
- The Court relied on the Privy Council's statement in Reasut Hosien v. Hadjee Abdoollah that there is not an absolute want of jurisdiction to review simply because a party fails to show positive error in law or new evidence, thereby supporting a broader review jurisdiction.
- Applying s. 623 to the circumstances of the present application, the Judge concluded that a sufficient reason existed to review his order: it had been made without jurisdiction, it was granted ex parte without notice to Amir Hasan Khan, and it interfered with Amir Hasan Khan’s clear right to obtain money deposited in Court pursuant to a final and unappealable decree.
- The Judge further reasoned that had he been informed of the date of the 18 March judgment and that no explanation for the delay in seeking review (petition only filed 29 July) was offered, he would not have made the stay order. These points would have been brought out had Amir Hasan Khan been heard at the time.
- The Court also adopted the principle (from Fritz v. Hobson) that an implied liberty to apply to vary or set aside an ex parte order exists; absent such an implied liberty, ex parte orders could cause hardship and delay to the other side.
Holding and Implications
Holding:
The application to review was allowed, and the Judge's ex parte order of 28 August staying execution was reviewed and set aside with costs.
Immediate consequences for the parties:
- Amir Hasan Khan's application for review of Sir John Edge's order succeeded; the stay of execution granted on 28 August was vacated and he was awarded costs of this review application.
- The practical effect is that Amir Hasan Khan's entitlement to the money deposited in Court pursuant to the final and unappealable decree is no longer restrained by Sir John Edge's ex parte stay order (subject to any other proper process or order not addressed in the opinion).
Broader implications discussed by the Court (as expressed in the opinion):
- The Court interpreted s. 623 of the Civil Procedure Code as allowing a wider right of review than a narrow English test; the phrase “or for any other sufficient reason” should be given effect and can encompass reasons of law, fact, or mixed questions, subject to appellate review.
- The Court held that s. 647 was not intended to provide the kind of power to stay execution that ss. 545 and 546 expressly provide for appealable decrees; absence of specific enabling words indicates lack of such jurisdiction under s. 647 in the circumstances of final unappealable decrees pending review.
- The Court recognized an implied liberty to apply to vary or set aside ex parte orders, citing Fritz v. Hobson, to prevent hardship and unfairness to parties not heard on ex parte applications.
Note: This summary is strictly confined to the content and reasoning set forth in the provided opinion. No information has been added or inferred beyond what appears in the text of the opinion.
Sir John Edge, C.J:— This is an application to me, under s. 623 of the Civil Procedure Code, for a review of an order made by me on the 28th of August last, staying the execution of a decree in the Court of the Subordinate Judge, Allahabad, in the case of Ahmad Ali v. Amir Hasan Kkan.
It appears that the suit, out of which the application on which I made the order to stay arose, was one brought by Ahmad Ali against Amir Hasan Khan for malicious prosecution. The action came on for trial before Mr. Abinash Chander Banerji, Subordinate Judge, who, on the 30th June, 1884, decreed Rs. 500 [38] against the defendant with proportionate costs and interest at 6 per cent, per annum. Against this decree each side appealed to the Judge of Allahabad, with the result that on the 6th May, 1885, the defendant's appeal was dismissed with costs, and the Judge, on the plaintiff's appeal, made a decree in his favour for Rs. 2,835, with costs proportionate to that sum in both Courts. By a judgment of this Court in appeal the decrees of the Judge of Allahabad and the decree of the Subordinate Judge were set aside, and the appeal of Amir Hasan Khan to this Court decreed with costs. It appears that Amir Hasan Khan, on the 22nd August, 1884, to save execution being taken out against him on the decree of the Subordinate Judge, deposited in Court Rs. 711-3-6 (being the decretal amount with cost), praying that amount should be kept in deposit until his appeal should be decided. Notwithstanding this prayer, that amount was paid out to Ahmad Ali. It also appears from the petition of Amir Hasan Khan in this application, that after the decree of the Judge of Allahabad on appeal Ahmad Ali took out execution for the sum of Rs. 2,883-3, in consequence of which Amir Hasan Khan deposited the latter amount in Court on the 11th July, 1885. On the 29th July, 1886, Ahmad Ali applied to my brother Tyrrell for an order for a review of the judgment of this Court of the 18th March, 1886, and my brother Tyrrell ordered that the petition should be laid before the Bench concerned, with the office report. This application for a review of the judgment of the 18th March last has not yet been granted.
On the 28th August last Mr. Amiruddin, on behalf of Mr. Reid, counsel for Ahmad Ali, applied ex parte to me, sitting as vacation Judge, for the order in question on this application. The petition on which Mr. Amiruddin applied was as follows:—
“Whereas the above-mentioned petitioner that is, Ahmad Ali, has filed an application for review of the judgment of the Honourable Court in the above suit, and an order has been passed referring the application to the Bench which delivered the judgment, petitioner prays that execution of the decree now pending in the Court of the Subordinate Judge, Allahabad, be stayed pending the disposal of the application, on the ground that the decree-holder's circumstances are such that petitioner apprehends that he may be unable to recover the amount payable under the decree of the [39] Honourable Court from the decree-holder, in the event of the application for review of judgment being granted.”
The object of this application was to prevent Amir Hasan Khan obtaining payment out of the Court to him of the Rs. 2,883-3, which he had deposited in Court under the circumstances above mentioned.
I assumed, without, asking any question on the point, that the application for review of the judgment of the 18th March last had been made within time. It appears that had I asked the question Mr. Amiruddin could not have given me any information on the point. I merely mention this incidentally, as my judgment does not depend on whether or not the application for review of the judgment of the 18th March was in fact made within time. On the 3rd instant Mr. Sundar Lal, on behalf of Amir Hasan Khan, applied to me to review my ex parte order of the 28th August, and on the 8th of this month Mr. Amiruddin appeared for Ahmad Ali to show cause why the application for a review of my order should not be granted, and my order reviewed and set aside. He contended that if I had not jurisdiction under s. 545 or 546 of the Civil Procedure Code to make the order in question—which at first he did not admit—I had in any event jurisdiction to make the order under s. 647 of the same Code; and in support of his contention he cited the case of Tara Chand Ghose v. Anund Chander Chowdry. He further argued that I had no power to review my order, contending that under s. 623 of the Civil Procedure Code, an applicant was not entitled to a review of an order unless he showed that he desired to obtain such review from the discovery of new and important matter or evidence which, after the exercise of the duo diligence, was not within his knowledge, or could not have been produced by him at the time the order was made, or on account of some mistake or error apparent on the face of the record. In this argument he put no construction upon, and offered no explanation of, the words “or for any other sufficient reason,” which are found in that section, and which cannot be held to be limited to the discovery of new or important matter or evidence, or the occurring of a mistake or error apparent on the record.
On the other side Mr. Sundar Lal argued that I had power to review my order; that my order was made without jurisdiction; [40] that ss. 545, 546, and 647 of the Civil Procedure Code did not, nor did any of them, apply; and in any event that as the application for review of the judgment of the 18th March last was not made until the 29th July, that application was out of time, and consequently there could be no review and no order to stay pending such review; and also that I ought to have been informed that application for review was out of time. Mr. Amiruddin stated that when he made the application to me of the 28th August, he had no information as to the date of the judgment of the Court of the 18th March, and objected that it was for the Bench to which my brother Tyrrell referred the application for review of the judgment of the 18th March, and not for me, to decide whether the application for review of the judgment was not within time, and stated that he was not sufficiently instructed as to the cause of the delay to enable him to argue that point before me. I took time to consider my judgment.
I am of opinion that this is a case in which I have power to review, and in which I ought to review, my order of the 28th August last. In my opinion, s. 623 of the Civil Procedure Code gives a much more extended right of review than that contended for by Mr. Amiruddin. If his contention were correct, parties here would not have as extended a right to claim a review as parties to actions in England had. In England an action to review a judgment could be maintained by showing that there was apparent on the record error in law, or that new and relevant matter had been discovered after the judgment, which could not possibly have been used when the judgment was made, or that judgment was obtained by fraud. Effect must be given to the words “or for any other sufficient reason” in s. 623, and by those words I understand that the reason must be one sufficient to the Court or the Judge before whom application for review is made, subject probably to an appeal. Whether or not there is in such cases “any other sufficient reason” may, in my opinion, depend on a question of law, or upon a question of fact, or upon a mixed question of law and fact. If it was intended to limit the right to a review to cases in which such a right extended in England, it would have been easy for those who framed the Civil Procedure Code (Act XIV of 1882), instead of using the words “or for any other sufficient reason,” [41] to have inserted some such words as “or on the ground of the judgment or order having been obtained by fraud.”
In the case of Reasut Hosien v. Hadjee Abdoollah in the Privy Council, an appeal from the High Court of Bengal, their Lordships said, when discussing the somewhat similar provisions of Act VIII of 1859, that they were not prepared to say that there was an absolute want of jurisdiction (to review) whenever the parties failed to show that there was either positive error in law or new evidence to be brought forward which could not have been brought forward on the first hearing. Whether or not there is any sufficient reason for this application to review, I shall discuss presently, after I have dealt with the question of my jurisdiction or want of jurisdiction to make the order of the 28th of August.
The Judgment in appeal of this Court of the 18th March last was final and not appealable, and at the date of my order and at present no application for a review of that judgment had or has been granted within the meaning of s. 630 of the Civil Procedure Code. This was consequently not a case of an application for a stay of execution of an appealable decree before the expiry of the time allowed for appealing therefrom under s. 545 of the Civil Procedure Code. Much less is it a case within s. 546. There is no appeal pending in this case. Now, does s. 647 of the Civil Procedure Code apply? I think it does not. I think that section was probably intended to apply to such matters as applications for the appointment of guardian, and for the custody of infants, and to proceedings under the Divorce Act, and to matters of procedure in the Revenue Courts of these Provinces not specially provided for, and to the recording of evidence in probate cases, and many other similar matters other than suits and appeals. I think that if it had been intended that the Court or a Judge should have power, after a final unappealable decree and before the granting of an application to review, to order a stay, that power would have been given by the introduction into the Civil Procedure Code of distinct, specific, and appropriate words, such as we find in ss. 545 and 546, which deal with the power to stay execution in appealable decrees. The absence of any such words in the Civil Procedure Code, and particularly in Chapter XLVII, [42] which deals with the subject of the review of judgments and orders, leads me clearly to the conclusion that it was not intended that the Court or a Judge should have the power which I assumed to have when I made the order in question.
I consequently come to the conclusion that I had no jurisdiction to make that order. Is there, then, sufficient reason for Amir Hasan Khan desiring to obtain a review of my order? I think there is. That order I hold was made by me without jurisdiction. It was made on an ex-parte application, of which Amir Hasan Khan had no notice, and on which consequently he had no opportunity of being heard. That order interfered, possibly indefinitely, with his clear right to obtain the money in Court as the result of the final and unappealable decree of the Court in his favour, as to which no application for review had been granted. It is an order which I think I may say I would not have made (even if I had jurisdiction to make it) had I been aware that the decree of this Court was made on the 18th March last, and no application for a review made or filed until the 29th of July, and that in the petition for a review, which was placed before my brother Tyrrell, no explanation of the delay was attempted to be given, and no grounds stated, showing any reason for suggesting that the statutory period of ninety days had not expired. Had Amir Hasan Khan been heard on the application for my order, all these matters would have been brought to my attention and fully discussed. For myself, until set right—if I be wrong—I am also prepared to hold that in cases where a stay of execution or an injunction is granted on an ex-parte application, liberty to apply to the Judge to vary or set aside his order must be implied, if not expressed, otherwise hardship, expense, and delay might result to the opposite side from the granting of an ex-parte application, for the granting of which, in the first instance, a prima facie case was made out. I find that Mr. Justice Fry in Fritz v. Hobson held that in every order of the Court in England, liberty to apply to the Court is implied without its being expressly reserved. Holding the opinions above expressed, I allow this application, and I review and set aside my order of the 28th August last with cost.
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