The explanation given by the appellants for moving two separate applications is that they were given a legal advice to move two seperate applications as there were two different agreements between the appellant Nos.
1 on the ground that separate applications were number in terms of the order dated 25.2.1966 and hence numberstay should be granted.
1 and 2 and the respondent No.
The Executing Court passed the prohibitory order under Order XXI Rule 46 of the Code of Civil Procedure in respect of sums payable to the appellant on account of the privy purse.
Aggrieved against the aforesaid Order of the High Court dated 2nd February, 1973 the appellants have filed these appeals by the grant of special leave.
Usmanali Khan appellant filed an appeal before this Court.
These applications were resisted by the plaintiff respondent No.
1 , Mirilal Dharamchand Pvt.
On an objection raised by the appellant by order dated March 15, 1958, the Court recalled the decree and cancelled the certificate as prayed for, on the ground that the amount receivable by the appellant on account of his privy purse was number attachable.
The respondent preferred appeal before the High Court.
Learned Single judge upheld the objection raised by the plaintiff and refused to stay the suit.
1 and 2 who were also defendants in the suit submitted a joint application in the High Court for staying proceedings of the aforesaid suit, under Section 34 of the Arbitration Act, 1940 hereinafter referred to as the Act .
In the above case the appellant was the Ruler, or the former Indian State of Jaora.
In view of some formal defect in the application the High Court by order dated 25th February 1966 gave permission to withdraw the said application with liberty to file a fresh application.
The respondent after obtaining a decree in terms of the award started execution proceedings against the appellant.
From the Judgement and Order dated 2.2.1973 of the Calcutta High Court in Appeal No.
Thereafter, on March 21, 1966 the appellant Nos.
The Central Government gave a certificate under Section 86 3 read with Section 87B of the Code Civil Procedure, 1908 companysenting to the execution of the decree against the properties of the appellant.
Ltd. in short Appellant No.
On appeal the Division bench of the Calcutta High Court by order dated 2nd February, 1973 dismissed the appeal.
The main purpose of moving the application by the appellant was to stay the proceedings of the suit under Section 34 of the Act the intention and the purpose of moving two separate applications is also to stay the proceedings of the suit under Section 34 of the Act.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos.
Dr. Shanker Ghosh, Darshan Singh, Praveen Kumar, I.B. Gaur and Ms. Shaifali Khanna NP for the Respondents.
On or about 15th December, 1965 both the appellant Nos.
The had money dealing with the respondent.
To our mind, the term a fresh application used in singular had numbermore significance than the fact that as both the appellants had submitted one joint application as such the liberty was given to make a fresh application.
Brief facts necessary for the determination of these appeals are that Shri Gouri Sankar Sarda hereinafter referred to as Respondent No.
1 and 2 instead of making a joint application submitted two separate applications for staying the suit against the respective appellants and in the alternative for stay of the suit as a whole.
The Division Bench took the view that liberty was granted to make a fresh application and as such under the provision of Order XXIII of the Code of Civil Procedure, the appellants had numberright to move two separate applications for staying the suit.
order XXIII C.P.C. as it existed at the relevant time is reproduced as under ORDER XIII WITHDRAWAL AND ADJUSTMENT OF SUITS Withdrawal of suit or abandonment of part of claim At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
211 of 1966.
The Judgement of the Court was delivered by KASLIWAL, J. These appeals by special leave are directed against the order of the Calcutta High Court dated February 2, 1973.
Sen, Mrs. Geetanjali Mohan and Bishan Lal for the Appellant.
2012 2013 of 1974.
Though the above order does number make a mention of the formal defect, but according to the appellants the permission to withdraw was sought as numbercopy of the plaint was annexed with such application.
33 of 1958.
1783 of 1965 in the Calcutta High Court against R. McDill and Company Pvt.
1 filed a Suit No.
The said application was allowed to be withdrawn with liberty to make a fresh application.
As the entire case hinges on the above order dated 25th Feb. 1966, relevant portion of the said order is reproduced as under Application withdrawn with liberty to make a fresh application.
Cost to be paid by the applicant.
