Omanath Chowdry v. Sheikh Nujeeb Chowdry BS648928

Omanath Chowdry v. Sheikh Nujeeb Chowdry BS648928 PRIVY COUNCIL

Before:-Members of the Judicial Committee - The Right Hon. the Lord Justice Knight Bruce, the Right Hon. Sir Edward Ryan and the Right Hon. the Lord Justice Turner, Assessors - The Right Hon. Sir Lawrence Peel and the Right Hon. Sir James W. Colvile.

0 D/d. 26.11.1861

Omanath Chowdry and Ors. - Appellants

Versus

Sheikh Nujeeb Chowdry and Ors. - Respondent

On appeal from the Sudder Dewanny Adawlut at Calcutta.

Appeal - Cross-appeal not filed la time - Admission of such appeal on terms - Prosecution of principal appeal and consolidation of principal and cross-appeal on one printed case.

[Para ]

A cross appeal from a decree of the Sudder Dewanny Court in India, although not interposed within the proper time, admitted, upon conditions, (1), of the principal appeal being prosecuted; and (2), that the principal and cross appeals be consolidated and heard on one printed case.

Cases Referred :-

Myna Boyee v. Ootaram, ante, p. 400.

Nana Narain Rao v. Huree Punt Bhao, 6 Moore's Ind. Cases, 464.

JUDGMENT

This was a petition by the Respondents for leave to prosecute a cross appeal from part of the decree of the Sudder Dewanny Court at Calcutta, dated the 31st of December, 1860, which affected their interests.

It appeared from the petition that Omanath Chowdry and the other Appellants being dissatisfied with the above decree, in due course appealed to the Queen in Council, and it was alleged that the effect of that decree was to deprive the Petitioners of a portion of the land sued for by them, which consisted of 2,339 Beegahs. That Omanath Chowdry and others, having by their petition appealed against the whole decree, the Petitioners, acting upon the practice of the Courts in India, regulated by the Act, No. XV., of 1853, thought that it would be open at the hearing of the appeal in England to offer objections to that portion which deprived the Petitioners of part of the land without incurring the expense of a cross appeal in respect thereof. That the Petitioners were afterwards advised that it was necessary to institute a cross appeal for that object, and that as the time for applying to the Sudder Dewanny Adawlut for leave to appeal had expired, under the circumstances, it was submitted, that a cross appeal ought to be allowed, and the Petitioners prayed for special leave to lodge a cross appeal, and that the same should be consolidated with the original, or principal appeal of Omanath Chowdry and others, and that the same should come on for hearing upon one printed case, provided that if such original or principal appeal should be dismissed for non-prosecution, then that the Petitioners should be at liberty to prosecute their cross appeal as a separate appeal.

Mr. Leith, for the Petitioners, applied ex parte for leave to prosecute a cross appeal.

Their Lordships granted the application upon the terms embodied in the following Order in Council, made thereon: - "It is hereby ordered, that the Petitioners be, and the same are hereby allowed to enter and prosecute their cross appeal from so much of the decree of the Sudder Dewanny Adawlut at Calcutta of the 31st of December, 1860, as deprives the Petitioners of a portion of the 2,339 Beeghas of land sued for by their plaint, provided the principal appeal be prosecuted by the original Defendants to the suit, and in case the appeal and cross appeal are prosecuted. the same are to be consolidated and to be heard on one printed case on each side."^(a)

(a) As to the necessity of a cross appeal, see Nana Narain Rao v. Huree Punt Bhao, 6 Moore's Ind. Cases, 464; and Myna Boyee v. Ootaram, ante, p. 400