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last—is the subject of appeals, not the vexed subject of second appeals upon which we have had so much discussion, because the proposals of the Bengal Government to alter the structure of the Appellate Courts have not yet been determined upon. But the law with respect to appeals where the Appellate Court consists of a plurality of Judges is not in a satisfactory state. According to Section 332 of the Code, which applied to the Sadr Court, when an Appellate Court of two Judges differs upon a question of fact, and one of the Judges agrees with the Court below, the judgment of the Court below is to stand. When they differ on a point of law, the point is to be re-argued before another Judge or other Judges, and is to be decided according to the opinion of the majority of the whole of the Judges who have heard the point argued. By the charters of the High Courts, if a Division Court of two or more Judges is equally divided in opinion, the opinion of the senior Judge is to prevail. Now, in that clause of the charter, original business and appellate business were lumped together, and though the rule is a very good rule in respect to original business, it is not satisfactory as applied to appellate business. The result of it is that the plaintiff may have a great preponderance of judicial opinion in his favor, and yet a decree be given for the defendant. It may happen that a man bas obtained a decree in the Court below, or in two Courts below, and that half the Appellate Court is in favor of his retaining that decree, but because a single Judge, being the other half of the Appellate Court, thinks otherwise, then the decree goes for the defendant. to consider this question very carefully last year in connection with the Burma Courts Act, because the principal Court of appeal in Burma consists of no more than two Judges, and the principle we applied there was that which prevails in England, and which seems to me to be the most reasonable of all principles ; that if there is no majority of the Appellate Court which can agree to alter, and how to alter, the decree of the Court below, that decree shall remain unaltered. I must confess that in our Bill No. III we left that matter in a rather unsatisfactory position, for we copied too faithfully both the Code and the charters, and the result was that we had introduced two conflicting principles. However we found out our error, and we have now adopted the principle which will be found embodied in Section 575 of Bill No. IV.
I will now conclude with the pro formâ motion that the further Report of the Select Committee, together with the Bill as settled by them, be published in the Gazette of India in English, and in the local Gazettes in English and such other languages as the local Governments think tit.
21st September 1876.
The Honorable Sir ARTHUR HOBHOUSE begged leave to make a short statement with reference to the course which the Government proposed to take with the Civil Procedure Code. He said =" I said nothing on the subject yesterday, because I expected to speak so soon on the subject at large. It has however been suggested to me that that was mistake, and that it would be more satisfactory if I were to state publicly what would be the course of business. What the Government propose then is, that the list of business for Wednesday, the 28th instant, shall contain notices of motion in my name for taking the reports into consideration and for passing the Bill. If then it is found that this discussion more than exhausts the day, or if amendments are carried which necessitate a careful examination of the draft, there will be time for an adjourned debate, and His Excellency the President will doubtless appoint some convenient day for the purpose.
I am afraid that it may occasion some inconvenience and hurry to Members of Council, that so large a measure should be debated within so short a time after the last report has been presented. But it is important to pass a measure which has reached such a stage of maturity as is the case with the Civil Procedure Code; and having regard to the movements of the Government of India, it will be difficult to perform that operation during the present year if it is not performed during the present sittings in Calcutta. Moreover, it will be recollected that a large proportion of the Members of this Council, no less than eight, are also Members of the Select Committee, and they are acuaginted with at least the larger details of the Bill. Still there is hurry, but our Secretary is hard at work, preparing the new prints on the Bill, so as to get them into the hands of the Members as early as possible, and I believe that every one will have time to study such portions of the Bill as interest him.
As regards those who are outside this Council, the case stands thus. The Committee have made many alterations in the current draft, Bill No. IV, but the great bulk of those alterations relates to technical or professional matter, which is not only not interesting to the general public, but which requires a long period of study for any body to digest and to comment on. In fact there are only two subjects which have attracted anything like general interest, one being the remedies given to creditors against their debtors, and the other being the distribution of business between District Courts and Subordinate Courts.
On those two subjects some alterations were proposed by Bill No. IV, which have received a great deal of comment adverse and other. But in settling Bill No. V, the Select Committee, with an eye to the passing of the Bill during these sittings, have carefully abstained from widening the field of alteration opened by Bill No. IV. Such alterations as they have made have distinctly narrowed that field of alteration, and have travelled back again in the direction of Bill No. III. There is therefore nothing, so far as regards the two subjects I have mentioned, which is contained in Bill No. V and which was not contained in distinctly greater force in Bill No. IV.
Now Bill No. IV was published at the end of September last, so that by the time we come to debate it will have been six months before the public. Moreover, it was not published as a rude and undigested mass of details from which each man might pick what suited him if he could find it. It was accompanied by comments proceeding partly from myself and partly from my friend Mr. Cockerell, for the very purpose of calling attention at once to the material alterations, so that those who had comments to offer on them might offer them without loss of time. Surely the time which has passed is sufficient for the purpose. In point of fact we have received some very able and efficient comments on our proposals, and I can hardly think we should get much more if more time were allowed.
15th March 1877.
The Honorable SIR ARTHUR HOBHOUSE moved that the Reports of the Select Committee on the Bill to consolidate and amend the laws relating to the Procedure of the Courts of Civil Judicature be taken into consideration. He said :-
“this motion is not one to pass the Bill before the Council into law, but it is intended to lead up to that final step, and I should like to add something to the reasons which I assigned a fortnight ago why that final step should vow be taken, because, unless it is now taken, the labor of the Council in travelling into the consideration of these reports may prove to be premature, and may be to a considerable extent thrown away.”
I have seen some appeals publicly made to me of late days not to allow any desire I may feel to connect my name with the passing of this measure to influence me in trying to pass it. These appeals have not been made in any rude or disrespectful spirit; on the contrary, they have been made in terms that are only too complimentary to me; but there are one or two observations to be made upon them. In the first place, the man who built his house upon the sand would be a wise man compared to myself if I were to hope for any immortality because I happened to be the Law Member of Council at the time when this Bill was passed into law. We hope that this Code will be an improvement on the Code of 1859. But it is not nearly so great or difficult a work as the Code of 1859, because it is not nearly so original a work. Yet who connects the names of the authors of the Code of 1859 with that Code? It is true that men like Sir Barnes Peacock, Sir James Colville, or Sir Henry Harington have a lasting reputation, but that is because they have uniformly distinguished themselves throughout their lives, and not on the particular account of the Code of 1859.
But even if I were vain enough to indulge in aspirations such as
Forsitan et nostrum nomen miscebitur istis or to sing
Non omnis moriar, multaque pars mei
Vitabit Libitinam -If I were vain enough to indulge in any such sentiments as these, I am not going to be unjust enough to put myself in the place of those who have performed the solid part of this work. My Lord, the man who has done the greater part of this work from the time of the re-arrangement of the Code in 1875 up to the final correction of the proofs is
Mr. Stokes. The man who has borne the second part in the labor is our colleague, Mr. Cockerell
, who has brought to it all his great experience and ability and his untiring industry. In fact it is my belief that Mr. Cockerell knows this bundle of papers by heart; for when I want to know where anything is to be found, I do not trouble myself to hunt about the table of contents for it, but I ask him, and he immediately tells me. Moreover there is the original draft by Sir Henry Harington on which this Bill is founded, and there is the great number of able and industrious gentlemen outside this Council, to whose labors a large portion of the Bill is due-men like Sir Richard Garth, Mr. Justice Turner, Mr. Justice Ainslie, Mr. Field, and others whom time would fail me to mention. In fact if there ever was a law framed by the concurrence of a number of skilled hands, this is such a law; and if I were to appropriate it to myself because I happen to be the spokesman in Council, I should be an impostor, and some condign punishment would infallibly overtake me.
I think that in this Council I need not disclaim any personal motive, but I wish to show how in point of fact there can be no personal motive for my pressing on the passing of this Bill.
The only reason for the postponement of the Bill is, that it has been so short a time before the public. I dealt with that matter before, but I should like to read to the Council a letter which I received within the last two or three days from Mr. Justice Turner of the Allahabad High Court. He is one of the most able and uncompromising opponents of a certain portion of our Bill; and he is also one of those who have come forward and have assisted us most materially in framing that same Bill. He writes thus :
“Although as you are aware I was strongly opposed to some of the provisions of the Procedure Code Bill, No. IV, and although I fear I shall remain unconvinced of the desirability of some few of the modified provisions which remain in the Bill you propose to pass, I have no hesitation in asserting it will be a public misfortune if the passing of the Bill is delayed.'
“It cannot be said that the proposals embodied in the Bill have not been before the public for à sufficient time to enable all those who would be likely to criticise them to submit their opinions.'
“ I have no reason to expect that within any reasonable period the constitution of the Legislative Council will be so altered, or the