Skip to content


Jaisukhlal Harishankar Girnara Vs. Mahomed HusseIn Dawoodbhai Karwa - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1733 of 1938
Judge
Reported inAIR1939Bom522; (1939)41BOMLR1084
AppellantJaisukhlal Harishankar Girnara
RespondentMahomed HusseIn Dawoodbhai Karwa
Excerpt:
.....starts from date of judgment of trial court or of appeal court-'date of judgment', meaning of-decree barred according to law of limitation of foreign state-whether suit in british india maintainable-law of limitation in british india applicable to suit.;the expression 'the date of the judgment' in article 117 of the indian limitation act, 1908, means the date of the decree, and where there is an appeal, it means the date of the decree of the appeal court.;on march 18, ,1928, the plaintiff obtained a judgment and decree in a suit for money in the diwani adalat court in the junagadh state. on february 9, 1929, the defendant's appeal from the decree of the trial court was dismissed and the decree was confirmed by the sadar adalat court. on october 16, 1932, the defendant's second..........in coming to its decision, and that, even if the time permitted in appeal was excluded, the suit filed on the foreign judgment was barred by the law of limitation. on the other hand baijnath v. vallabhadas i.l.r. (1933) mad. 951 completely supports the plaintiff's contentions in this suit. after a review of all the authorities the learned judges came to the conclusion that the term 'judgment' in article 117 of the indian limitation act meant a decree, and if there is the decree of the appeal court, it is that decree which is the starting point for counting the period of limitation. i respectfully agree with the conclusion arrived at in that decision and hold that this contention of defendant no. 1 is unsound.3. it was next contended that this court is not bound to accept a foreign.....
Judgment:

Kania, J.

1. The plaintiff has filed this suit to recover from the defendants Rs. 3,699-14-6 together with interest on Rs. 2,251-5-3 at six per cent. The plaintiff had money dealings with the defendants at Junagadh, and it is alleged that the plaintiff lent Rs. 2,500 to the defendants who carried on business in the firm name of M.D. Karwa and Co. at Junagadh. The plaintiff filed suit No. 460 of Samvat Year 1981 in the Diwani Adalat at Junagadh, and obtained a decree for Rs. 2,009-13-3 on March 18, 1928. Defendant No. 1 being dissatisfied with the decision filed appeal No. 100 of S.Y. 1984-85 in the Sadar Adalat Court of the Junagadh State ; but the appeal was dismissed on February 9, 1929. Defendant No. 1 being still dissatisfied with the decision filed a second appeal in the Huzur Adalat at Junagadh ; but the same was also dismissed on October 16, 1932. The plaintiff has filed the suit on the foreign judgment seeking to enforce the decree of the Huzur Adalat of Junagadh, dated October 16, 1932. Defendant No. 1 has filed his written statement in which he raised several contentions. At the hearing Mr. Desai gave up all except that the suit was barred by the law of limitation.

2. On behalf of defendant No. 1 it is urged that Article 117 of the Indian Limitation Act applies to the suit, and that in computing the period of limitation the starting point is March 18, 1928, i.e. the date on which the judgment of the trial Court was given. In support of this contention defendant No. 1 relies on the proviso to Rule 114 in Dicey's Conflict of Laws, 5th edn., which runs in these terms:

Provided that a foreign judgment may be final and conclusive, though it is subject to an appeal and though an appeal against it is actually pending in the foreign country where it was given.

He further relies on the decision in Hari Singh v. Muhammad Said I.L.R.(1926) Lah. 54 the passage from the proviso in Dicey's Conflict of Laws is quoted with approval as applicable to India. In my opinion, this contention of defendant No. 1 is unsound. The words used in Article 117 of the Indian Limitation Act are 'the date of the judgment.' It does not say 'the judgment of the trial Court.' As pointed out in numerous cases by their Lordships of the Privy Council, it is useful to rely on the strict grammatical construction of the words used in an Act in preference to interpretations given to words under different sets of laws even by the Courts in England. I do not see any justification for holding that the words used in Article 117 should mean judgment of the trial Court alone. The proviso to Rule 114, as stated in Dicey's Conflict of Laws, in my opinion, only means that the plaintiff who had obtained judgment in a foreign Court was not bound to wait either to see that the defendant filed an appeal, or, if an appeal was filed, till it was decided. Immediately a judgment is pronounced in his favour, he has a right to bring a suit on the same in a foreign Court. The only qualification which may be stated to exist is that the judgment must not be an interlocutory judgment as pointed out in Dicey's Conflict of Laws, It should be a judgment which becomes res judicata between the parties on the matters covered by the litigation. I am unable to interpret the words used in the proviso as confining the successful plaintiff to bring a suit on the original decree, and if he did not file a suit on that, to mean that he lost his right altogether. In this connection, it is material to bear in mind that when an appeal is filed and dismissed, according to the Civil Procedure Code, 1908, the form of the decree of the appeal Court is that the appeal is dismissed and the judgment of the trial Court is confirmed. As pointed out by Sir Lawrence Jenkins in Kailash Chandra Bose v, Girija Sundari Debi I.L.R. (1912) Cal. 925 a decree on appeal supersedes the decree passed under appeal, and the decree of the Court of first instance could not in the circumstances be pleaded as res judicata. In the same way, in Sheosagar Singh v. Sitaram Singh I.L.R. (1897) Cal. 616 Lord Macnaghten, in delivering the judgment of the Privy Council, stated as follows (pp. 626-627):

If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise to the plea [of 'res judicata']. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of Appeal.

Thus, as soon as the Huzur Diwani Adalat of Junagadh passed the decree in the second appeal on October 16, 1932, the decree of the trial Court and the first appeal Court were superseded, and as between the parties the only decree which remained res judicata was the decree passed by the Huzur Diwani Adalat. The decision of the Lahore High Court, relied upon by defendant No. 1, does not discuss this aspect of the case at all. On going through the judgment, it is clear that the learned Judges considered various alternative grounds on which the suit was bound to fail. It was held by the Court that the foreign Court had no jurisdiction to try the suit, that it had not followed the principles of natural justice in coming to its decision, and that, even if the time permitted in appeal was excluded, the suit filed on the foreign judgment was barred by the law of limitation. On the other hand Baijnath v. Vallabhadas I.L.R. (1933) Mad. 951 completely supports the plaintiff's contentions in this suit. After a review of all the authorities the learned Judges came to the conclusion that the term 'judgment' in Article 117 of the Indian Limitation Act meant a decree, and if there is the decree of the appeal Court, it is that decree which is the starting point for counting the period of limitation. I respectfully agree with the conclusion arrived at in that decision and hold that this contention of defendant No. 1 is unsound.

3. It was next contended that this Court is not bound to accept a foreign judgment as a cause of action, and it has a discretion to allow a plaintiff to file a suit or to refuse to do so. In support of that contention, the following observations of Blackburn J. in Schibsby v. Westenholz (1870) L.R. 6 Q.B. 155 were relied on (p. 159):

We think that, for the reason there Godard v. Gray (1870) L.R. 6 Q.B. 139 given the true principle on which the judgments of foreign tribunals are enforced in England is that stated by Parke, B., in Russell v. Smyth (1842) 9 M. & W. 810 and again repeated by him in Williams v. Janes (1845) 13 M. & W. 628 that the judgment of a Court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the Courts in this country are bound to enforce; and consequently that anything; which negatives that duty, or forms a legal excuse for not performing it, is a defence to the action.

This particular passage is cited with approval in Nallatambi Mudaliar v. Ponnusami Pillai I.L.R. (1879) Mad. 400. Those principles therefore are urged to be applicable to British India when a suit is filed here on a foreign judgment. Accepting that as the correct view, in my opinion defendant No. 1's contention is not supported by those observations. There is nothing inherently wrong in the judgment on which this suit is filed. The only contention urged on behalf of defendant No. 1 is that execution of the decree passed by the Huzur Diwani Adalat in Junagadh is time-barred. It was contended that if the plaintiff attempted to execute the decree in Junagadh, he would be faced with the plea of limitation, and, therefore, he should not be allowed to achieve his object by filing a substantive suit in British India. The last words used in the above observations of Blackburn J. are relied upon in this connection. The law of limitation is a law of procedure and has to be strictly construed. It may bar the remedy but does not extinguish the right. There is no proof that the execution of the decree is barred in Junagadh. In considering whether a particular remedy is open to a party, the law applicable to the place where the suit is brought is applicable. The law of limitation prevailing in the place where the obligation arose has not to be considered, On that ground where decrees are capable of being transmitted from a Native State in alliance with His Majesty to British India for execution, the law prevailing in British India is considered the law governing the right of execution. It is not open to the parties to contend that the law prevailing in the Native State would have enabled them to execute the decree there, and therefore, the same should be in force in British India, although according to the law of limitation in British India execution be time barred. See Nabibhai Vazirbhai v. Dayabhai Amulakh I.L.R. (1916) 40 Bom. 504. The contention that there exists a legal excuse for not performing the obligation imposed by the judgment of the Junagadh Court is misreading the above quoted observations of Blackburn J. Legal excuse may exist in Junagadh, but it does not exist here. According to the law prevailing in British India, the period of limitation is prescribed as six years, and it is not open to this Court to go behind Article 117 of the Indian Limitation Act. A different view would give rise to complicated questions of procedure prevailing in a foreign Court, and whether a decree is kept alive or could be revived under certain circumstances. The fact that the decree is enforceable in Junagadh Court is not relevant in considering whether the suit is time-barred or not under Article 117 of the Indian Limitation Act. In the same way, whether the decree is not enforceable because it is barred by the law of limitation prevailing in Junagadh is equally not relevant to be considered in the present suit. In ray opinion, therefore, as the suit which is filed within the period of limitation prescribed in Article 117 is within time, defendant No. l's contention must fail.

4. The plaintiff filed the suit and annexed to the plaint certified copies of the decrees of the trial Court and the two Courts of Appeal in Junagadh. In the written statement of defendant No. 1 the accuracy of the copies filed has not been challenged. When the plaintiff tendered certain copies it was pointed out that proof as required by Section 79 of the Indian Evidence Act was not forthcoming to show that the certified copies were genuine. The matter has, therefore, to be adjourned to enable the plaintiff to obtain the necessary endorsement or certificate to comply with the provisions of Section 79 of the Indian Evidence Act. If the plaintiff succeeds in proving that genuine certified copies are in accordance with the copies annexed to the plaint, the suit will be decreed as the defence of limitation fails. In order to enable the plaintiff to obtain the necessary certificate, the suit is adjourned for three weeks to be on board that day as part-heard.

5. March 10. Since the last hearing I came across the decision in Jatindra Nath Basu v. Peyer Deye Debi . In that there is a sentence which states (p. 112):.the decree, as a decree capable of being executed, could not by reason of the bar of limitation be assigned.... It had become a dead decree.

I invited counsel to argue the point of limitation again having regard to this sentence. In order to make the point clear, an additional issue was permitted to be raised, and the question of fact, whether the decree of the Junagadh Court had become time-barred, is covered by that issue.

6. On behalf of the plaintiff properly certified copies of the decrees of the Junagadh Court were tendered and have been admitted in evidence. They show that the Huzur Adalat Court of Junagadh passed a decree in the plaintiff's favour on October 16, 1932, for the amount claimed in this suit. On behalf of defendant No. 1, Mr. Desai tendered the relevant portion of the Limitation Act of the Junagadh State, being Article 145 of Act I of S. 1954 (1898) and the amending Act of S. 1990 (1934). Under the first Act six years' period was prescribed for execution of a decree. Under the amending Act that period was curtailed to three years. In order to prevent hardship the proviso in the amending Act gives six months' time in respect of decrees for which the period of limitation was thus curtailed. On the proper construction of both the Acts the execution of this decree would be barred, according to the law of Junagadh, after three years. There is no evidence on record to show that a further extension of time was available to the plaintiff.

7. Assuming, therefore, that the decree of the Huzur Adalat Court of the Junagadh State was not capable of being executed in Junagadh when this suit was filed, the question re-argued was whether a suit founded; on such a decree is barred by limitation. Article 117 of the Indian Limitation Act deals' only with the period of limitation. It does not create a right to sue. It is, however, recognised in India that a foreign judgment itself forms a cause of action and a suit can therefore be based on it. In Halsbury's Laws of England, Vol. VI (2nd Ed.) Article 380, p. 324, it is stated:

.the judgment in personam of a foreign Court of competent jurisdiction condemning one of the parties to the payment of a sum of money constitutes a good cause of action in England.

Having regard to the clear terms of Article 117, the period of limitation, for a suit on such a foreign judgment, is six years. I have already discussed previously the reasons why this Court should not consider the question whether the execution of this decree is barred by the law of limitation in Junagadh. Having heard counsel again, I adhere to the view which I have previously expressed in. the interlocutary judgment.

8. In Jatindra Nath Basu v. Peyer Deye Debi, the plaintiff had brought the suit for specific performance of an agreement to sell a mortgage decree and which decree was to be duly transferred to the defendant. Before assignment the decree however became time-barred, and the defendant refused to take it. Their Lordships of the Privy Council came to the conclusion, as a question of fact, that the plaintiff had agreed to assign to the defendant a decree which was capable of execution, and that until assignment there was an obligation on the plaintiff as vendor to keep the decree alive. Therefore, when execution of the decree became barred by limitation, the plaintiff was asking for specific performance by the defendant of an agreement which he was himself unable to perform and no such relief could be granted. In considering the effect of an observation in a decision it is always necessary to bear in mind the facts in connection with which the judgment was delivered. Having regard to the facts of that case it is clear that their Lordships were not considering at all the question whether a time-barred decree could form a cause of action in a foreign Court. Giving all the weight which the observation is entitled to, in my opinion, it only means that in the particular case the defendant had agreed to buy an article which was alive, i.e. was capable of giving him money when it was transferred to him. In the interval, by reason of the plaintiff's omission, it had ceased to retain that character, and, therefore, the relief of specific performance could not be granted. I am unable to read the sentence quoted above as meaning anything beyond what I have just summarised. In my opinion that observation in the judgment does not affect the considerations which made me hold that the Court is not concerned with the question whether the execution of the decree in Junagadh is time-barred.

9. Issue No. 1 will be found in the negative, and issue No. 2 in the affirmative. There will, therefore, be a decree for the plaintiff against defendant No. 1 as prayed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //