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The Lakshmi Engineering Co. Vs. B. Venkatashamanna and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 240 of 1954
Judge
Reported inAIR1959Kant34; AIR1959Mys34; ILR1958KAR273; (1958)36MysLJ479
ActsConstitution of India - Article 261 and 261(3)
AppellantThe Lakshmi Engineering Co.
RespondentB. Venkatashamanna and anr.
Appellant AdvocateS. Ramaswamy, Adv.
Respondent AdvocateV. Krishnamurthi, Adv.
Excerpt:
.....of proof heavily lies on one who files a petition for declaring the seat vacant. impugned order passed by state election commissioner declaring that seat of petitioner has become vacant based on assumptions and surmises is liable to be quashed. -- sections 167(2) & 168 (2): member of gram panchayat power of state election commission to declare seat as vacant on report made to it held, sections 167(2) and 168(2) of the act would indicate that the state election commission, on a report made to it, shall declare the seat of a person concerned is or has become vacant after giving reasonable opportunity of being heard to the person concerned is or has become vacant after giving reasonable opportunity of being heard to the person concerned. the word report found in the aforesaid sections..........reported in : [1957]1scr488 . in that case it was laid down that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. the right of appeal is not a mere matter of procedure but is a substantive right, their lordships by a majority further held that the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. i fail to see how this case could be of any assistance to the respondents in this case. it lays down a principle of law wholly unconnected with the facts of the present case. it is true for certain purposes a decree relates back.....
Judgment:

1. In this appeal the scope of Article 261(3) of the Constitution of India comes up for consideration. The facts of the case are as follows:

2. The appellant (decree-holder) obtained a decree against the respondents in the Court of Small Causes, Ahmedabad in Civil Suit No, 1182/1949. The decree in question was passed on 2-3-1950. It was transferred for execution to the Munsiff, Chitaldrug on 29-11-1950. The present execution case No. 97/53 was filed on 8-3-1953. The judgment-debtors objected to the executability of the decree on the ground that the decree in question is a foreign decree and they had not subjected themselves to the jurisdiction of the Court of Small Causes, Ahmedabad. This contention was repelled by the executing Court. But the learned Subordinate Judge, Chitaldrug, accepted the same in R.A. No, 61/53. The correctness of the said decision is challenged before me.

3. Article 261(3) of the Constitution reads as follows:

'Final judgments or orders delivered or passed by civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law.'

It is undisputed that both Ahmedabad and Chitaldrug are within She territory of India. The only objection that was canvassed on behalf of the judgment-debtors (respondents) is that though the decree was passed after coming into force of the Constitution, the suit had been instituted prior to 26-1-1950. Hence the decree relates back to the date of the suit. Some reliance was tried to be placed on the decision of the Supreme Court in Garikapati Veeraya v. Subbiah Choudhry, reported in : [1957]1SCR488 . In that case it was laid down that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

The right of appeal is not a mere matter of procedure but is a substantive right, Their Lordships by a majority further held that the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. I fail to see how this case could be of any assistance to the respondents in this case. It lays down a principle of law wholly unconnected with the facts of the present case. It is true for certain purposes a decree relates back to the date of the suit, but there is no scope for the application of the principle in the instant case.

Article 261(3) specifically lays down that final judgments or orders delivered or passed by the Civil Courts shall be capable of execution anywhere within India. The emphasis is on the words 'final judgments or orders delivered or passed'. It is undisputed in the present case that the final judgment was passed after coming into force of the Constitution. There Is some controversy as to whether this Article is retrospective in character. Some of the High Courts have taken the view that even judgments and decrees passed prior to 26-1-1950 have now become executable in all Courts in India.

Other Courts have taken a different view. But that controversy has nothing to do with the present case. I have not been shown any authority which has taken the view that a decree passed subsequent to coming into force of the Constitution, in suits instituted prior to the date of the Constitution are not executable in Courts previously considered as foreign. The reasoning adopted by the first appellate court is wholly fallacious. It is unnecessary to examine the same in detail.

4. In the result, this appeal is allowed. The order of the first appellate court is set aside and the order of the Executing Court restored. The respondents (judgment-debtors) will pay the costs of the appellant both in this court and the first appellate court.

5. Appeal allowed.


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