Keshub Prasad Singh vs Harihar Prasad Singh and Another

This is an application on behalf of the appellant to England asking that the money deposited in Court to set aside a sale in execution of the respondent''s decree for costs amounting to Rs. 61, 261 should remain in Court pending the hearing of the appeal to the Privy Council. There was a further execution in respect of an additional sum for costs awarded at a later period amounting to Rs. 31,817. With regard to the first sum the appellant has withdrawn his objection. Therefore the respondent will be entitled to take that sum out of the Court, the sale being set aside. With regard to the smaller sum of Rs. 31,817 the execution proceedings have not yet terminated but the appellant contends that the respondent if he receives this money will not be able to re-pay it in the event of the appeal to the Privy Council being successful, In support of that the petition states that the appellant is informed and believes it to be true that the opposite party have not sufficient property over and above the property in dispute which will enable the petitioner to realize his just dues under the decree and costs in case the Privy Council reverses the decree of the High Court. He further says that in the event of the decree being reversed by the Privy Council the petitioner will not be able to realize anything by way of restitution from the opposite party as the petitioner is informed that he has not sufficient property to meet the obligation arising out of the decree in case the High Court''s decree is reversed. In that petition the source of the petitioner''s information is not stated. The petition, however, is supported by an affidavit signed by one Panchdeo Narayan who describes himself as the karpordaz of the petitioner and states: "I am fully aware of the facts stated in the petition. The facts stated in the petition are true to my knowledge." It is very difficult to know exactly what that affidavit is referring to. The facts stated in the petition are that the petitioner has been informed that the opposite party will not be in a position to refund the money if the appeal to the Privy Council should succeed. It may be that the person who swore the affidavit is aware that the petitioner was so informed but that is not sufficient to entitle the Court to act in a matter of this sort. The rules are clearly laid down in the High Court rules, Part 2, Ch. 3, Rule 12 which state that when in an affidavit on an interlocutory application the declarant makes a statement of his belief he shall, if the facts are ascertained from another person, give such details of such person as are required by Rule 8. if the facts are ascertained from a document or copy of a document then he must state the source from which it was procured and shall state his belief as to the truth of such facts. Here the only statement is that the petitioner ban been informed of certain things. We are not told where he gets his information from and it makes it none the better that somebody has sworn an affidavit saying that the facts alleged in the petition are true. The petition before us and the affidavit are totally inadequate in our opinion to entitle the Court to act in such a case.

But the matter does not rest there for the respondent has himself filed a petition supported by an affidavit in which he states that he has property in Bihar in addition to the property in dispute worth 20 lakhs of rupees and he refers to an admission made by the appellant in 1921 during the course of execution proceedings when the appellant had got a decree from the trial Court, in which the appellant admits that the respondent had at that time property in Bihar worth Rupees 9,85,000. It is quite clear, therefore, that the respondent is not devoid of means and even on the petitioner''s own showing he certainly is in a position to restore this sum of Rs. 31,817 if the petitioner should succeed in his appeal to the Privy Council. In our opinion this application should be dismissed with costs.

We wish to add that where a party has been successful in a Court of Appeal and has been awarded his costs it is not the practice of this Court to stay execution for costs except in cases where it is abundantly clear that there will be no chance of recovering the costs if they are allowed to go unprotected to the person entitled to them. This application is dismissed and the order of 19th May directing that the sum paid into Court should remain there pending the hearing of this application is discharged. The respondent is entitled to his costs of this application. Hearing fee five gold mohurs.