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cannot mean that a public officer whose duty it is to see that the law is
obeyed is, merely by reason of that duty, a person personally interested
[194] in the prosecution and trial of an offender against the statute-law.
The words " personally interested " cannot refer to any very remote inter-
est in the matter, and must refer to some particular and i'mmediate per-
sonal interest in the case and its results. If it were otherwise no paid
judicial officer under the Government of India could take cognizance of an
offence the commission or repetition of which might} affect the public
revenue, which is the source from which those officers are paid, and in that
event not only all Magistrates, but Session Judges and Judges of the High
Court, would be precluded from taking cognizance of any offence against
the laws relating to the public revenue, and there would be no Court which
could entertain an appeal or an application in revision from a conviction
by a Bench of Honorary Magistrates for an offence against the laws
relating to or affecting the public revenue, Section 191 of the Code
of Criminal Procedure shows that the mere fact that a District Magis-
trate or a Sub-Divisional Magistrate or any other Magistrate
specially empowered in that behalf who is authorised under clause (c)
to take cognizance of offences has directed the institution of a prose-
cution upon his own knowledge, or upon his own suspicion that the
offence has been committed, does not preclude such Magistrate from
jurisdiction to hear and determine the case, which may in fact have been
instituted upon his own peculiar knowledge of the facts. In such cases
the accused has a power given him by the statute to obtain the transfer
of the case to some other Magistrate, but unless the accused exercises that
privilege the jurisdiction of the Magistrate to institute, hear and determine
the particular case is unquestionable. I refer to s. 191 for the purpose
of showing that a merely preconceived opinion as to, the guilt of an
accused does nob necessarily deprive a Magistrate of jurisdiction to
adjudicate on the charge. We have been referred by Mr. Strachey to a
number of cases, some decided in this country, some in England. In my



YII]



In re PETITION OF GANESHI



15 All. 196



opinion none of those cases touch the case which is before us, in which
the Magistrate was neither a party nor personally interested. The cases to
which Mr. Strachey referred are the following : Queen-Empress v.Saha Dev-
valad Tukaram (1), [l95]T/ze Queen v. Farrant ; (2) The Queen v. Rand (3);
The Queen v. Handsiey (4) ; Leeson v. General Council of Medical Education
and Registration (5) ; The. Queen v. McKenzie (6) ; The Queen on the Prosecu-
tion of Shaw v. Lee (7) ; The Queen v. Gaisford (8) ; Municipality of Benares
v. Bishen Chand (9) ; In the matter of the petition of Nobin Krishna
Mookerjee (10) ; In the matter of Kharak Chand Pal v. Tarack Chunder
Gupta (11).

In conclusion, I am of opinion that the Joint Magistrate had jurisdic-
tion to hear and determine the charge against Musammac Ganeshi, and
I would return the record to the Court of the Sessions Judge with this
expression of opinion.

TYRRELL, J. I entirely concur.

KNOX, J. The sole question before us is whether the Joint Magis-
trate of Benares was personally interested in the case of The Queen-Em-
press v. Musammat Ganeshi, and therefore debarred from trying the case
without the permission of the Court to which an appeal lay from his
Court. The circumstances of the case have been fully set out by the
learned Chief Justice in bis judgment. There is nothing in the circum-
stances which discloses that there existed in the mind of the Joint Magis-
trate any feeling prejudicial to the accused before him. It is not a mere
interest in a case or in the circumstances of a case which disqualifies a Magis-
trate or a Judge from trying a case. That which disqualifies him is, to
adopt the language used in the case of The Queen v. Handsiey (4), "a
substantial interest giving rise to a real bias and not merely to a possi-
bility of a bias." I would therefore return the papers to the Sessions
Court of Benares with no orders or directions beyond the opinion of the
Court.

BLAIR, J. I would answer this reference in the terms used by
the Chief Justice and return the record without further orders.

[196] BURKITT, J. I also would make the same reply.

AlKMAN, J. I entirely concur with the learned Chief Justice. It is,
as remarked by him, difficult to define what is the personal interest refer-
red to in s. 555 of the Code of Criminal Procedure as debarring a Magis-
trate or Judge from trying a case. I should be inclined to say that it
was an interest attaching to him as an individual, e.g., in the present case
to Mr. Porter, as Mr. Porter, and not an interest which he derives solely
from his official position. The decisions which have given a wider mean-
ing to the words of Si 555, have, it seems to me, overlooked the important
provisions of s. 191, cl. (c), Code of Criminal Procedure.

I concur in the order proposed.



1393

MARCH 10.

FULL
BENCH.

ISA. 192

(F.B.) =

13 A.W.N.

(1893) 79.



(1) 14 B. 572.
(3) 1 Q.B. 230.
(5) 43 Oh. D, 366.
(7) 9 Q.B.D. 394.
(9) 6 A.W.N. (1886) 291.
(llj 10 C. 1030.



(2) 20 Q.B. D. 58-
(4) 8 Q.B.D. 383.
(6) 2 Q.B. of 1892, p. 519.
(8) 1 Q.B. of 1892, p. 381.
(10) 10 C. 194.



843



15 All. 197



INDIAN DECISIONS, NEW SEBIES



Yol.



1893

MARCH 31.

APPEL-
LATE
CIVIL.

ISA. 196 =
13A.W.N.
(1893) 88.



15 A. 196 = 13 A.W.N. (1893) 99.

APPELLATE CIVIL.
Before Sir John Edge., Kt., Chief Justice, atid Mr. Justice Aikman.



IN THE MATTER OF THE PETITION OP MUBAD-UN-NISSA.
[24th March, 1893.]

Civil Proctdurt Code, s. 546 Execution of decree Application for stay of sale of im-
moveabte property in execution of a money-decrte under appeal.

AD application under the third paragraph of s. 546 of the Code of Civil'Prooe-
dure to stay the sale of immoveable property in execution of a decree for money
against which an appeal has been filed must be made to the Court which passed
the decree and not to the appellate Court. Oossain Money Puree v. Oour Pershad
Singh (1) referred to.
[F., 8 C.W.N. 381 ; R., 34 G. 1037 (P.B.)=6 C.L.J. 298 = 11 C.W.N. 1030.]

THE facts of this case are sufficiently stated in the judgment of the
Court.

Mr. Adul Baoof and Mr. Mahomed Raoof, for the applicant.

JUDGMENT.

EDGE, C.J., and AIKMAN, J. This is an application to stay the
execution of a decree for money against which decree an appeal is
pending in this Court, and in execution of which decree an order has
been passed for the sale of immoveable property. It is an applica [197]
tion falling under the last paragraph of s. 546 of the Code of Civil
Procedure. An application to stay was made to the Court which passed
the decree and an interim stay was ordered by that Court to enable the
appellant to present the present; application to this Court. In our opinion
the Court which passed the decree was the proper Court to deal with the
application. The application could only be granted "on such terms as to
giving security or otherwise as theCourt which passed the decree thinks fit."
This Court was not the Court which passed the decree. Consequently we
could not decide or suggest what should be the "terms as to giving security
or otherwise," as those terms are entirely for the Court which passed the
decree, and are in its discretion and not in ours. The paragraph in
question is not very explicit. We infer from the wording of that para-
graph, and to some extent from the fact that in the second paragraph of
the same section, the appellate Court is expressly given jurisdiction to
make an order as to security, which, by the wording of the first paragraph
of the same section, otherwise would be confined to the Court which
passed the decree, that the intention of the Lagislature was that the
Court which should act under the last paragraph of the s. 546 was the
Court which passed the decree and not the appellate Court. The High
Court of Calcutta in Gossain Money Puree v. Gour Pershad Singh (1)
apparently took the same view of the last paragraph of s. 546 as we do.
In this case we dismiss the application in this Court on the above grounds.
Under the circumstances our order of dismissal, being one entirely depend-
ent on the question of the jurisdiction of this Court, will not debar the
appellant here from prosecuting his application in the Court which passed
the decree.

We make no order as to costs.

Application rejected.

* Application under s. 546, Civil Procedure Code, in First Appeal No. 258 of 1892.

(1) 11 0. 146.

844



YII]



TILESHAR BAI V. PABBATI



15 All. 199



15 A.198 = 13 A.W.N. (1893) 93.

[198] APPELLATE CIVIL.

Before Mr. Justice Burkitt.



TILESHAR EAI AND OTHERS (Decree-holders) v. PARBATI AND OTHERS.
(Judgment- debtors).* [14th April, 1893.]

Civil Procedure Code, s. 230 Execution of decree" Application to execute a decree"
Limitation.

The term " application to execute a decree " in the third paragraph of s. 230
of the Code of Civil Procedure means any application to execute a decree. It is
not confined to the last application preceding the expiry of the period of twelve
years from either of the points of time mentioned inol. (a) or cl ; (6) of the same
paragraph of the section above-mentioned. Paraga Knar v. Bhagwan Din (1)
distinguished. Ramadhar v. Earn Dayal (1) referred to.

[DUs., 15 C L.J. 453 (456) = 17 C.W.N. 113 (116) = 10 Ind. Gas. 359 (361) ; Appr., 18
A. 482 (489) = 16 A.W.N, 142 ; R., 28 C. 122 = 5 C.W.N. 80 ; 14 C.W.N. 114
(117) = 3 Ind. Cas. 47 ; D., 24 A. 282 (286) = 22 A.W.N. 63.

THE facts of this case are fully stated in the judgment of Burkitt, J.

Munshi Gobind Prasad, for the appellants.

Baboo Bishnu Chandar Motra, for the respondents.

JUDGMENT.

BURKITT, J. This is an appeal against an order of the Subordinate
Judge of Ghazipur affirming an order of the Munsif of Saidpur by which the
appellants', decree-holders' application for execution of a decree was rejected
as time-barred. The date of the decree is the 25th of June 1877. It therefore
was more than twelve years old at the date of the application which I am
now considering, that application having been presented on the 15th of April
1890, while the sum decreed was payable on the 20fch of November 1877.
But it is contended for the appellants that because the application for execu-
tion which immediately preceded that of the 15th of April 1890, was not
" granted," they are still, despite the twelve years' rule contained in s. 230
of the Code of Civil Procedure, entitled to have satisfaction of their decree
by process of execution; and in order to meet the facts of this case the learn-
ed vakil who represents the appellants further contends that if the applica-
tion for execution which immediately preceded the application made after
the expiration of the twelve years had not been "granted" it was immaterial
[199] that another previous application for execution of the same decree
had been granted during the twelve years. In fact, the learned vakil's
argument amounts to this, that in the third sentence of s. 230 of the Code
of Civil Procedure, the words " where an application," instead of being
construed according to their ordinary grammatical meaning as applying to
any application made and granted, should be interpreted to mean " where
the last application prior to an application made after the expiration of
twelve years " has been granted.

Before discussing the force of this argument it will be useful to aet
forth some of the previous applications made for the execution of this
decree. The earliest application to which I need allude is the fourth.



1893

APRIL 14.

APPEL-
LATE
CIVIL.

ISA. 198 =
13 A.W.N.
(1893) 93.



* Second Appeal, No. 664 of 1891, from a decree of Pandit Eansidbar, Subordinate
Judge of Ghazipur, dated the 23rd April, 1891, confirming a decree of Babu Chandi
Prasad Munsif, of Saidpur, dated the 13th December, 1890.

(1) 8 A. 401. (9) 8 A. 536.

845



15 All. 200



INDIAN DECISIONS, NEW SERIES



[Vol.-



1893, It was made on the 24th of May, 1885. Notice under s. 248 was served on

APRIL 14. the judgment-debtors, but as the decree-holders failed to deposit the fees

for attaching the property against which they sought execution the appli-

APPEL- cation was " struck off " in June, 1885. Tbe fifth application was made

LATE on the 8bh of August 1885. In the course of proceedings on this appli-

ClViL. cation the judgment-debtors' property was attached and as thats property

was ancestral the execution case was, on the 3rd of February 1886,

131.198= transferred to the Collector under the provisions of s. 320 of the
13 A.W.N. Code of Civil Procedure. There is nothing on the record to show what
(1893) 93. happened before the Collector. The sixth application for execution was
made on the 14th of November, 1887. Notice was served on the judgment-
debtors, who came in and took certain objections to the execution.
No order was passed on those objections, because, on the 23rd of April,
1888, the decree-holders withdrew their application and asked that it
might be struck out, intimating their intention of making a further applica-
tion at some future date.

This is the last application which was made within the twelve
years from the date when the money due under the decree was pay-
able. The seventh and last application for execution was made on
the 15th April, 1890. It is the application now before me. In
it the usual notice having been issued to the judgment-debtors they
appeared and, inter alia, objected that the execution was time-barred.
[200] A date was fixed for hearing the objection, and, strange to say, that
date was a Sunday. The judgment-debtors being absent on the following
day (the 4th of August 1890) their objection was struck out in default and
subsequently an order was passed directing the case to be sent to the
Collector under s. 320. Shortly afterwards the judgment-debtors again
came in and reiterated their objections. The question was then taken up
by the Court, which eventually coming to the conclusion that execution
was barred by the twelve years' rule contained in s. 230 of the Code of Civil
Procedure rejected the application for execution. That order was upheld
on appeal by the Subordinate Judge, and it is from that appellate order
that this appeal is brought.

The contention then put forward on behalf of the appellants is that
inasmuch as the sixth application for execution was not granted, they
are now entitled to have out execution on the seventh application.
Their learned vakil based his contention on the judgment of this
Court in the case of Paraga Kuar v. Bhaf/wan Din (1). Now 'ac-
cepting fully the definition of the word "granted" as laid down in
that case, I hold with the learned vakil that the sixth application
was not *' granted." But I must also hold that the fifth application,
that of the 8th of August 1885, was granted. The Court did much more
on it than merely issue a notice. It attached the property against
which execution was sought, and then, finding that that property came
under the definition of " ancestral property," it transferred the further
proceedings in execution to the Collector as it was bound by law to do.
In fact, tha Court took every step within its lawful power to further the
execution of the decree, and when the limits of its own jurisdiction were
reached it transferred the further proceedings to a tribunal empowered by
law to continue them. Under such circumstances I cannot but hold
that this fifth application was " granted " within the meaning of s. 230
of the Code of Civil Proceedure.

(1) 8 A. 301,

846



YII]



TILESHAR RAI V. PARBATI



15 All. 202



Now the third sentence of s. 230 of Act No. XIV of 1882 provides
that " where an application to execute a decree [20:1] has

been made under this section and granted, no subsequent application
to execute the same decree shall be granted after the expiration of
twelve years from * ****,,,* fcbe dafce of ^ Q ,3 e f au i t i n

making the payment in respect of which the applicant seeks to enforce
the decree."

Pnma facie, therefore, as it appears that at least one application for
execution of this decree had been granted, no subsequent application to
execute the same decree should be granted after the expiration of twelve
years from the date on which the decretal amount was payble, i.e., the
20lb of November 1877.

But it is contended that I should disregard the fifth application
altogether as immaterial, and that the only application which can be taken
into consideration is the sixth, because it was the application immediately
preceding the application made after the expiration of twelve years from
the 20th of November 1877.

The case cited, Paraga Kuar v. Bhagwan Din (1), undoubtedly at first
sight appears to lend some support to this contention. But on a close
examination of the facts of that case and of the judgment of the learned
Officiating Chief Justice, who delivered the judgment of the Court, I am of
opinion that it does not support the construction which the learned vakil
would have me put on it. The decree in that case was made in August
1865. It was an instalment deoree providing for periodical payments over
a period of sixteen years from 1866 to 1882. The twelfth year from the
date fixed for the payment of the last instalment would be the year 1894.
Up to 1877 several payments had beon made apparently without; issue of
process of execution. In March of that year an application for execution
was made, but would appear not to have been granted (within the technical
meaning of that word) as the parties came to an arrangement for liquidation
of the debt which was confirmed by the Court and the case was there-
upon "struck off." The next application was in March 1881. It came to
an end in the same manner as the preceding application of March 1877.
The Court was informed that a new arrangement for payment had been
[202] come to between the parties and that part payment had been made.
Another application was made in March 1883. On it nothing was done
further than the issue of notice, whereupon the Court was infbrmed that
an arrangement for payment had been made. The case was accordingly
" struck off." It will be noticed that the applications of 1881 and of 1883
were made after the expiration of twelve years from the date of the
decrae. But the report of the case does not state what instalments were
due at the date of the application of March 1877, a matter of no little
importance with reference to clause (b) of the third sentence of s. 230
of Act No. XIV of 1882.

The last application was made in March 1884, and it was with reference
to it that the judgment of this Court was delivered. In his judgment the
learned Officiating Chief Justice, after premising that the only ground on
which the Gouru was asked to interfere in appeal was that " the original
decree having been more than twelve years old at the date of the two lasfi
applications for execution, it is barred by limitation," proceeded to say :
" Looking at the provisions of s. 230 of the Civil Prosedure Code, it would
appear that after a decree is twelve years old there is a prohibition against

(1) 8 A. 301.
847



1893

APRIL 14.

APPEL-
LATE
CIVIL.

ISA. gs-

13 A.W.N.
(1893) 93.



IS All. 203



INDIAN DECISIONS, NEW SERIES



1893 its being executed more than once, that is, an application should not be
APRIL H, granted if a previous application had been allowed under the provisions of

that section." The first and second clauses of the paragraph just cited

APPEL- somewhat conflict one with the other, but at any rate, the second clause
LATE distinctly lays down that if a previous application had been allowed (which
OlVIL. I interpret to mean any previous application) no subsequent application
can be granted after the expiration of twelve years from the date of
ISA. 98= the decree. Then follow the words on which the argument in the case
13 A.W.N. I am now considering has been founded, namely, " Now the test to
(1893) 93. apply to this case is to see whether the last of those applications
preceding the application the granting of which is the subject of
appeal was granted, because, if granted, the prohibition referred to
in the section, applies." I am unable, however, to consider these words
as an authority for holding that the last application immediately
preceding an application made after the expiration of twelve years from
t203] the date of the decree, is " the only application to be taken into
consideration," and that it is immaterial whether any previous application
had been granted. That the learned Officiating Chief Justice did not him-
self take that view is evident from the fact that having come to the con-
clusion that the application of 1883 had not been granted he went on to
consider the previous application of 1881. He found that it also had not
been granted and that therefore it also was "not within the prohibition
contained in s. 230." But surely, if the argument I am considering be
sound, there was no necessity whatever for looking into the application of
1881. All that in that case would have been necessary was to have
decided that the application of 1883 had not been granted, without going
any further. The inference I. draw from the learned Officiating
Chief Justice's remarks about the application of 1881 is that, if in his
opinion that application had been granted, he would have held that
the decree was time-barred. It is (as I before remarked) important that
the report does not give any information as to the date when the instal-
ment, to recover which the application of 1877 was made, fell due. That
matter does not appear to have been brought to the notice of the Court.
The case of Paraga Kuar v. Bhagwan Din (1) was considered in the sub-
sequent case of Bamadhar v. Bam Dayal (2). In that case an application
had been made in November 1884, for execution of a decree passed in
April 1872.- In his judgment Mr. Justice Mahmood, while accenting fully,
the meaning of the word " granted " as laid down in Paraga Kuar's case,
did not confine his attention to the last application immediately preceding
that made in November 1884, but considered the effect of the two previous
applications made in February 1883 and in December 1883, respectively.
That learned Judge evidently did not believe in the existence of the rule
now contended for. The point was not touched on by the other learned
Judge (Mr. Justice Oldfield) who heard Bamadhar v. Bam Dayal (2). His
judgment proceeded on a clause of s. 230 which has been repealed by Act
No. VII of 1888.

[201] The case of Chengaya v. Appasami Ayyar (3) has no bearing
on the question under discussion. It simply gives to the word "granted "
the meaning given to it in Paraga Kuar's case. The only other case bearing
on this matter which I have been able to find is that of Motichand
v. Krishnarav Gonesh (4). The judgment in it, however, proceeds on the
repealed clause of s. 230 and is not in point here.



(1) 8 A. 301.



(3) 8 A. 536.



(3) 6 M. 172.



(4) 11 P. 524.



848



YII]



QUEEN-EMPRESS V. MADLA BAKHSH



Id All. 205



On a review of the authorities cited above I have come to the con-
clusion that the argument addressed to me on this point for the appellants
is unsound. I hold that the words "an application to execute * * * has
been made * * and granted," should be interpreted according to their
ordinary grammatical sense as meaning any " application ", and that they
should not be restricted to the last application immediately preceding an
application made after the expiration of twelve years from the date of the
decree sought to be enforced, or on which the sum decreed became payable.

It follows therefore that as the fiffch application, that made in August,
1885, was "granted " the present application made after the expiration of
twelve years from the date when the decretal amount became payable
cannot be allowed.

For these reasons I hold that the lower appellate Court was right in
rejecting the appellants' application of the ISfch of April, 1890.

It was further contended for the appellant that the application o (i
the 15bh of April, 1890 was but an application for revival of the proceedings
under the application of August, 1885. Unfortunately for the appellants
the facts on this matter are against them. The application of April. 1890,
contained no prayer for revival of previous lapsed proceedings, but was a



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 124 of 155)