Application to stay proceedings in a cause in which an appeal from an Order in the nature of an interlocutory Order is pending before Her Majesty in Council, ought satisfactorily to shew that a serious injury will be the result to the party applying unless the delay asked for be granted, and that the party applying has come promptly to make the application. Where, therefore, an Appellant from an Order of the High Court of Judicature, which remitted a cause, appealed to that Court from the Zillah Court, back for the trial of issues framed in accordance with the provisions of Act No. 8 of 1859, s. 139, having failed in obtaining an Order from the High Court to stay proceedings in the Zillah Court, pending the appeal, but not having appealed from that decision; presented a petition to Her Majesty in Council praying that all proceedings in the remanded suit might be stayed till the pending appeal had been heard; the Judicial Committee, without determining the question of their right to interfere in such circumstances, held that the Petitioner had not shewn any such injury, or used such expedition as entitled him to ask for a stay of proceedings. Quare, whether, where an order has been made by the Superior Court below refusing to stay proceedings, and such Order is not specially appealed from, the Judicial Committee have any authority to interfere, though an appeal is pending before them from a previous Order of the Superior Court made in the same suit, remitting the cause back to the inferior Court before which it is pending. THIS was an application to stay proceedings in a suit instituted in the Zillah Court of Midnapore, in which an appeal had been interposed from an interlocutory Order, to the Sudder Court (afterwards the High Court of Judicature) at Fort William, Bengal, and by that Court, after a hearing and rehearing, remanded back to the Zillah for trial on the merits. The circumstances as they were stated in the petition of the * Present :-LORD CHELMSFORD, LORD JUSTICE KNIGHT BRUCE, LORD JUSTICE TURNER, SIR JAMES W. COLVILE, SIR EDWARD VAUGHAN WILLIAMS, and SIR LAWRENCE PEEL (Indian Assessor). J. C. 1865 NAWAB SIDHEE NUZUR Appellant, were as follow: On the 30th of May, 1860, a plaint was filed in the Civil Court of Zillah, Midnapore, by the Respondent against the Appellant and others to recover possession as mortgagor of certain Pergunnahs therein specified, charging the Appel- ALLY KHAN lant and other Defendants with fraud and collusion in obtaining possession of the Pergunnahs, and for the sum of Rs. 2,72,000, the OOJOODHYARAM alleged mesne profits. The Defendants put in answers to the plaint, and on the 10th of November, 1860, the cause came before the Zillah Judge, who framed issues of law and fact in pursuance of the provisions of s. 139, Act No. 8, of 1859. On the 19th of November, 1860, the first hearing of the suit took place before the same Judge, who gave judgment on the issues directed, in favour of the Appellants, and dismissed the plaint. The Respondent appealed from this judgment to the Sudder Court at Calcutta, and on the 1st of June, 1863, the High Court, having been substituted for the Sudder Court, reversed the judgment of the Zillah Court of Midnapore and remanded the suit back to that Court for trial upon the merits. The Appellant applied for and obtained a re-hearing by the High Court, which, on the 12th of January, 1864, affirmed its previous judgment and decree: whereupon the Appellant petitioned for and obtained leave to appeal to Her Majesty in Council from such decree and judgment. The Appellant in his petition to the High Court for leave to appeal against the before-mentioned decree and judgment, prayed that until his appeal (for leave to present which he was then petitioning) should be heard, or decided, or until the further order of the High Court, all further proceedings in the High Court and in the Zillah Court of Midnapore should be stayed; and on the 16th of June obtained an order nisi calling on the Respondent to shew cause why the hearing of the suit under the aforesaid order of remand should not be postponed, pending the result of the appeal to Her Majesty in Council, which Order, on cause being shewn, was discharged on the 25th of August, 1865. No appeal was asked for or interposed from this Order of dismissal, but the Appellant, believing, as he stated in his petition, that he would be put to great trouble and inconvenience, and would be forced to incur great expense in and about obtaining the evidence V. RAJAH KHAN. J. C. 1865 ALLY KHAN V. RAJAH which he had been advised and believed would be necessary to give on his behalf at the trial, and being advised and believing NAWAB that the determination by the trial of the issues in fact raised SIDHEE NUZUR in the suit would be wholly immaterial as regarded the result of the suit, if he succeeded in his appeal to Her Majesty in Council, OOJOODHYARAM Which he had been advised and believed he should do, and believKHAN. ing that the trial of the remanded suit would be proceeded with in the Zillah Court, pending the hearing of his appeal, presented a petition to Her Majesty in Council, praying that an early day might be appointed for the hearing of the appeal, and that all proceedings in the remanded suit might be stayed until the pending appeal should have been heard and decided. The Attorney-General (Sir R. Palmer) (with whom was Mr. A. Stephenson) now moved to stay proceedings. It is necessary to state shortly the facts of this case. The suit is one for possession by redemption of certain mortgaged Pergunnahs which have been sold at a sale purporting to have been a revenue sale, which, as we say, by reason of collusion and fraud, was a fictitious sale. We claim to redeem these Pergunnahs, and for an account of mesne profits. The sale is alleged to have been for Government arrears of revenue, which we say were purposely allowed to fall in arrear, and the sale, instead of being a public, was, by the fraud and collusion of the parties, really a private one. It was urged against us that we were barred by the Ben. Regulation of Limitations, III. of 1793, sec. 14; but as we allege fraud and collusion, we claim exemption from that Regulation, and insist on our right to come in under cls. 1, 3, sec. 3 of Reg. II. of 1805, which allows sixty years to bring an action. The issues directed by the Zillah Judge go directly to these points, and if determined on the appeal in our favour, will dispose of the case; that, therefore, is a reason sufficient to induce this Court to stay the proceedings below. The issues of fact, moreover, if found against us at the trial would, on the points there stated, exclude us from benefit we may any derive from a decision in our favour on the appeal. We only ask that the trial may be postponed till the appeal has been heard'; we are ready to proceed with the appeal immediately. Mr. Rolt, Q.C., and Mr. Leith, opposed. J. C. 1865 NAWAB SIDHEE NUZUR v. RAJAH KHAN. This is an unprecedented application. It is quite irregular for the other side to go into the facts or merits of the case. Neither is this Court, nor are we ourselves, sufficiently informed of the ALLY KHAN facts to come to any conclusion. We know nothing of the merits, and this Court has no materials before it to enable your Lord- OOJOODHYARAM ships to say on what grounds you could order a stay of the proceedings. What claim has the Appellant to such an indulgence? The decree of foreclosure which is now sought indirectly to impeach was pronounced so long ago as on the 16th of November, 1852, there was no appeal from that judgment, and the present proceedings are long subsequent. Even admitting the dates as stated by the Appellant in his petition, the final judgment on the rehearing was pronounced on the 12th of January, 1864, and though appealed, the appeal was not prosecuted; nor was the Order nisi which is now sought to be incorporated as part of the proceedings applied for, or obtained before June in the same year; there has been no diligence, therefore, if that could be urged as a ground for granting this application. But the consequences to the Respondent, if the proceedings are stayed, may be most unjust and injurious. Evidence both oral and documentary may be lost, witnesses may die, and all the other casualties that impede a cause may intervene. There is, moreover, a fatal objection, as we apprehend, to the application. It is an appeal against an Order of the High Court which discharged the Order nisi of the 16th of June, 1864, from which no appeal was either asked for or asserted. The only appeal pending in this Court is from the decree of the 1st of June, 1863, confirmed by the judgment of the 12th of January, 1864, and we submit that, independent of the want of merits, this Court has no jurisdiction to review an order not appealed from. LORD CHELMSFORD : Their Lordships have not entered into the consideration of the merits of this case, nor will they decide any question with regard to the right or authority which they may have to interfere by ordering a stay of proceedings in the circumstances of these cases; but they decide upon this petition entirely upon these grounds: that any application for a stay of proceedings must be founded upon two J. C. points, which are essential to sustain the application; first, that a serious injury will be the result to the party applying unless the stay of proceedings is granted, and secondly, that the party SIDHEE NUZUR has come promptly to make the application for delay. 1865 NAWAB ALLY KHAN v. RAJAH KHAN Now, with regard to any suggested injury which may arise to OOJOODHYARAM the Petitioner in case the delay asked for is not granted, there is no ground whatever for supposing that any such injury will be sustained. All that he can allege is, that he may be put to costs upon the trial of these issues of fact remitted to the Zillah Court, supposing ultimately the decision of their Lordships on the appeal now pending in this Court should be in his favour, upon the questions of law which it is said are raised therein. But the answer to that objection, if it be one, is, that if the Petitioner is put to costs improperly, those costs will ultimately fall on the Respondent while, on the other hand, the situation in which the Respondent would be placed, if their Lordships were to grant this application, must be considered, because there might be very great danger of his losing evidence, parol and documentary, if the delay asked for were granted. Therefore, with respect to any supposed injury which would arise from the cause being allowed to take its course, and the issues of fact allowed to be tried in due form in the Zillah Court of Midnapore, there is no pretence for saying that any such injury will arise. Then, has the Petitioner come promptly with his application? which is another essential requisite of an application for delay, or for a stay of proceedings in any case. The appeal to the High Court of Judicature was decided finally on the 12th of January, 1864; on the 10th of February, 1864, there was a petition for leave to appeal, and no application to stay proceedings made till the month of June, 1865. The delay was endeavoured to be accounted for from the Respondent having objected to the leave to appeal, on the ground that the six months ought to be dated from the date of the original decree, and not from the order on review; but that really appears to their Lordships to be no explanation at all, at least no satisfactory explanation of the delay which has taken place, of sixteen or eighteen months before this application to stay proceedings is made. Under these circumstances, there being no proof of any serious injury which would be sustained by the Petitioner, by their Lord |