Ziaulnisa Begam And Anr. vs Motiram And Anr. on 12 January, 1888

Bombay High Court
Ziaulnisa Begam And Anr. vs Motiram And Anr. on 12 January, 1888
Equivalent citations: (1888) ILR 12 Bom 496
Bench: N Haridas, Jardine


1. The contention raised in the present case is as to the meaning of the expression “sued forth” in Section 1 of Act XVIII of 1848. That section provides that no “writ or process shall be sued forth or prosecuted * * * unless with the consent of the Governor of Bombay in Council first obtained.” The expression “sued forth”, it is contended, means “to sue for and to obtain”, and that, therefore, the institution of the suit in its inception was void, and the consent subsequently obtained did not cure the defect. The construction thus sought to be put upon the expression “sued forth “, so as to make the consent a condition precedent to filing a suit, is, in our opinion, not correct. In similar enactments where such a condition is made precedent, the Legislature has clearly expressed their intention. Act XVII of 1873 (Nawab Nazim’s Debts) bars by Section 11” suits “and” process” against the person or property of persons for whose benefit it has been made, unless with the consent of the Governor General in Council. Similarly does Act XX of 1873, Section 2, (The Prince of Arcot’s Act)(1). Had the intention of the Legislature been that such consent should be previous to filing a plaint under the Act, instead of the expression “sued forth “,” sued for “would have been used. The same interpretation on the section has been put by the Division Bench of this Court Appeal No. 68 of 1884 decided on 4th May, 1887. In the present case the consent, though it was obtained subsequently to the filing of the plaint, did not, in our view of the section, vitiate the proceedings, We must, therefore, confirm the decree with costs.

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