TMI Blog1877 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ive of the result of the appeal to Her Majesty in Council, which was delayed for some fourteen years. The order of Her Majesty in Council was such, that if it had been known at the time of making the decrees, they must, of necessity, have gone the contrary way, so far as the enhanced portion of the rent claimed was concerned; and therefore it seems to me, that it did at once supersede the decrees based upon the reversed order of the High Court. 2. There appears to me to be a wide distinction between the re-opening of decrees based upon, and necessarily controlled by, a previous decree subsequently reversed on appeal; and the re-opening of decrees which the Court making them might have varied had it not thought fit to follow a decree afterwards sot aside. Looking at the case of Shama Purshad Roy Chowdry v. Hurro Purshad Roy Chowdry 10 Moore's I.A. 203; S.C. 3 W.R. P.C. 11 I am of opinion that there is authority for saying that the former class of decrees are ipso facto superseded so soon as the controlling decree is nullified, and that what may have been done under them is not final, but may be undone; the mode of proceeding for this purpose is not a question of sorious impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff was placed, he was bound to appeal all these suits and incur the enormous expense necessarily involved in such a course--an expense far exceeding the amount in dispute. As to applying for a review in each case, it is exceedingly doubtful, to say the least of it, how far a review could be obtained, or could at any time have been obtained, in the cases under Act X of 1859. Even supposing it obtainable in the four cases under Bengal Act VIII of 1859. But if it be granted that a review might have been obtained in each of the sixteen suits, that mode of proceeding would have been, on the whole, much more cumbrous and inconvenient than the single suit which the plaintiff has instituted embracing his whole claim; of course these questions of convenience and the like could not be taken into consideration at all if there were any fixed rule prohibiting this suit from being brought. It seems to mo, however, that not only is there no such fixed rule, but that the Privy Council has expressly decided in Shama Purshad Roy's case 10 Moore's I.A. 203 S.C. :3 W.B. P.C. 11 that a suit such as this may properly he entertained by this Court. In their judgment, it is said: There is no do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay to recover what had been wrongfully paid under those decrees, and this was evidently the view taken of the effect of Shama Purshad Roy's case 10 Moore's I.A. 203 S.C: 3 W.R. P.C. 11 by Kemp and Pontifex, JJ., in the case of Nilmoney Singh Deo Bahadur v. Sharoda Purshad Mookerjee 18 W.R. 431. 7. The question of limitation is not raised in the order of reference. But I incline to agree with the Subordinate Judge (and substantially for the reasons given by him) in thinking that the suit is not barred. 8. The circumstances of this case are peculiar, and it is impossible in dealing with it to lay down any rule of very general application. The plaintiff has practically no remedy unless this suit will lie. Richard Garth, C.J. 9. I am of opinion that the decree made by the Privy Council in the case of Ram Churn Dutt v. Romesh Chunder Dutt did not supersede or modify the several decrees which had been previously obtained for enhanced rent by the present defendants, and consequently that the plaintiffs in this case are not entitled to recover. 10. The plaintiffs base their claims entirely upon the authority of the case of Shama Purshad Roy Chowdry v. Hurro Purshad R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt and interest due up to the commencement of Doorga Purshad's first suit in 1821; and in his plaint he reserved to himself the right of bringing another suit for his share of the interest upon the bond-debt from 1821 to the 27th May, 1829, on which day Doorga Purshad obtained his decree against Shama Purshad. 15. This suit was carried through the Courts of this country up to the Sunder Dewany Adawlut, where eventually a decree was made against Doorga Purshad for the entire amount of principal and interest sued for. 16. From this decree Doorga Purshad appealed to the Privy Council, who decided in 1849 that the decree of the Sudder Court ought to be reversed, and that Doorga Purshad was not liable to Tara Purshad for the whole amount of his 6-anna share and interest of the debt. Their Lordships held that Doorga Purshad ought to he considered as a trustee for Tara Purshad, and was only responsible for so much of the debts as he actually received, or without his wilful default might have recovered, and an order was made accordingly by their Lordships that the decree of the Sudder Dewany Adawlut should be reversed; that Doorga Purshad should be declared liable to Tara Purshad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say, that the decrees in this country under which the sum of ₹ 11,127-15-3 was recovered were in fact superseded by the order of Her Majesty in Council in 1849. That order they considered extended not only to the claim of the plaint in the particular suit in which it was made, but to the adjustment of the rights and interest of the parties in the entire subject-matter of that suit. The order had declared Doorga Purshad to he a trustee for Tarn Purshad of the whole Ganna share of the bond and interest, and it had directed the Sudder Dewany Adawlut to adjust and enforce the rights and liabilities of the parties in accordance with the directions of the Privy Council. If this order had been obeyed by the Sudder Dewany Adawlut, as their Lordships say, it ought to have been, the interest in question, ₹ 11,127-15-3 would have been refunded to Doorga Purshad by the order of the Suddor Dewany Adawlut under, and by force of their Lordships' previous decree, because that decree had superseded and annulled what their Lordships call the despondent and subordinate decree which had been obtained for the interest. But as the Sudder Dewany Adawlut failed to take any steps to carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much dealt with and superseded by their judgment as the decree which had been made with reference to the remainder, of the bond-debt. Upon this ground, and upon this ground only, it appears to mo their Lordships' judgment proceeded; and I do not understand that they intended to overrule the principle laid down in Marriot v. Hampton 2 Sm. L.C. 375 6th ed.; 405 7th ed. or to prescribe a different rule of equity in this country from that which obtains in England. 24. It does not appear to mo that their decision can be considered as governing the present case, unless we can find that the decree made by their Lordships on the 25th of March, 1873, reversing the first judgment for the enhanced rent, had the legal effect per se of superseding or modifying the subsequent decrees for enhanced rent obtained between the year 1864 and the 25th of November, 1875. 25. Now, on looking at the language of their Lordships in that decree, I cannot discover that they dealt, or intended to deal, with anything also than the actual subject-matter of the suit upon which they were engaged. Their judgment involves no change in the mutual relation of the parties. Their Lordships give no directions t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overruled that judgment, and decided that he was so entitled; and suppose also, that pending the appeal to the Privy Council, the landlord had brought several suits for the enhanced rent, but in each had only recovered the original rent; if the above principle is to be carried out, the landlord would be entitled, in a fresh suit, to recover the enhanced rent which he had failed to recover in his subsequent suits here, and to which the Privy Council had declared him entitled. 29. So again, if the rule is to apply to cases of landlord and tenant, it must apply to all other cases where the relative rights of parties are determined in one suit, and claims founded on those rights are enforced in subsequent suits. The case of Shama Purshad Roy Chowdhry v. Hurro Purshad Roy Chowdhry 10 Moore's I.A. 203 S.C.: 3 W.R. P.C. 11 was not a case between landlord and tenant. 30. Thus, for instance, A sues B to recover the value of coal which he claims as having been taken out of his coal mine. The question depends upon whether 13 has a right to take the coal from a particular area; and A obtains a decree for damages upon the ground that B has no such right. B appeals to the High Court; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sif gives the plaintiff a decree. The case is appealed to the Subordinate Judge, who reverses the Munsif's judgment. Meanwhile a second decree has been obtained before the Munsif for the enhanced rent, and the tenant has paid the amount. The tenant, under these circumstances, would be enabled by force of the judgment of the Subordinate Judge, to recover from the landlord the amount which he has overpaid under the second decree. But the landlord then takes the Subordinate Judge's judgment upon special appeal to the High Court; and the High Court reverses that judgment, and affirms the Munsif Section. The consequence would be that the landlord would be entitled to recover in a third suit the sum which he had previously recovered from the tenant in the second suit. 34. If this state of the law is to prevail in this country, it is difficult to see where litigation is to stop; or when people's rights are even to be considered as finally determined. If in cases like the present it is right that the English rule should be departed from at all, it appears to me that a review of judgment would be not only the most complete, but the most appropriate and unobjectionable remedy; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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