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R. Viswanathan and ors. Vs. S. Abdul Wajid and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberRegular Appeal Nos. 22 and 23 of 1950-51
Judge
Reported inAIR1952Kant94; AIR1952Mys94
ActsCode of Civil Procedure (CPC), 1908 - Sections 11, 47 and 98 - Order 47, Rule 1; Mysore High Court Act, 1884 - Sections 15(3); Mysore Code of Civil Procedure (CPC) - Sections 98(3); Dominion Law; Indian Independence Act, 1947; Indian Civl Procedure Code; Government of India Act, 1935 - Sections 107, 107(1) and 107(2); Adaptation of Laws Order, 1950; Constitution of India - Article 372
AppellantR. Viswanathan and ors.
RespondentS. Abdul Wajid and ors.
Appellant AdvocateN.R. Raghavachariar and ;M.L. Venkata Narasimhiah, Advs.
Respondent AdvocateS.V. Subramanyam, Adv.
Excerpt:
.....the court held that the constitution of full bench, in accordance with section 98(3) of the mysore civil procedure code, was not invalid for not being in accordance with the indian civil procedure code - the court held that when reference was heard, the indian civil procedure code had not come into operation and hence the reference was valid. (c) the court adjudicated that in the absence of any exceptional circumstances, the executing court could not go behind the decree. (d) the case focused on the sitting of the same judge as member of full bench, who had referred the case to full bench, within the scope of section 15(3) of the mysore high court act, 1884 - the court explained that it was permitted in mysore and other high courts, for the judge referring the case to full bench, to sit..........under consideration (i. a. no. iv) in both the cases under section 151 and order 47, rule 1 of the civil procedure code. the grounds urged in the said petition may be outlined as follows. this court i.e. the executing court rejected the application (i. a. no. 1) of the judgment-debtors on 19-12-1949 without hearing the counsel and without a considered order which is an appealable one and that the question regarding the validity of the decree is a very important one depending upon the competency and the constitution of the tribunal. the judgment-debtors prayed that the court may be pleased to review the order overruling the objections and to pass a considered order alter hearing the counsel. the learned district judge held that the executing court could not review the order passed by.....
Judgment:

Balakrishnaiya, J.

1. These two appeals arise out of the order passed on I. A. No. IV in Ex. Cases Nos. 106 and 107 of 49-50 on the file of the District Judge, Civil Station, Bangalore. The amounts claimed in the execution petitions represent costs awarded to the defendants in the proceedings culminating in the regular appeals of this Court. The objections of the judgment-debtors contained in I. A. No. 1 characterise the decrees under execution as a nullity on the ground of their having been passed by a tribunal, two of the Judges of which were not competent to hear the appeals and as such the decrees are wholly void, without jurisdiction and unenforceable. The trial Court overruled the objections on 19-12-1949 and directed execution to proceed.

On 22-2-1950, the judgment-debtors filed the application, for review, under consideration (I. A. No. IV) in both the cases under Section 151 and Order 47, Rule 1 of the Civil Procedure Code. The grounds urged in the said petition may be outlined as follows. This Court i.e. the executing Court rejected the application (I. A. No. 1) of the judgment-debtors on 19-12-1949 without hearing the Counsel and without a considered order which is an appealable one and that the question regarding the validity of the decree is a very important one depending upon the competency and the constitution of the Tribunal. The judgment-debtors prayed that the Court may be pleased to review the order overruling the objections and to pass a considered order alter hearing the Counsel. The learned District Judge held that the executing Court could not review the order passed by itself on 19-12-1949, much less was it, competent to question the validity of the decree passed by the Full Bench of this Court.

2. The history of the litigation leading up to the execution petitions under consideration may briefly be outlined thus. The judgment-debtors as plaintiffs in the trial Court had obtained decrees against which R. A. No. 104 and R. A. No. 109 of 47-48 were filed in the High Court. The Division Bench that heard the appeals having differed in their opinions, the appeals were referred to a Full Bench on 2-4-1949 for disposal. One of the Judges that constituted the Division Bench was in the constitution of the Full Bench. The Full Bench allowed the appeals with costs. Thereupon the plaintiffs applied for review of the judgments of the High Court in C. Ps. Nos. 61, 62, 49 and 50 of 49-50 all of which were dismissed. The execution petitions from which the present appeals arise are for the recovery of the costs awarded to the defendants in the regular appeals of this Court.

3. Sri Raghavachariar, the learned Counsel for the appellants, raised two contentions: the first regarding the competency of the Judges composing the Full Bench and the next about validity of the constitution of the Full Bench and argued that the decrees under execution are void and unenforceable for either or both the reasons. In relation to the first contention, it was argued that the two out of the three Judges that composed the Full Bench were not competent to hear and dispose of the appeals, the incompetency consisting in this that one of them had dealt with a probate matter connected with the estate of the plaintiffs and that the other had expressed an opinion in the Division Bench. This question of incompetency had been raised during the course of arguments in the regular appeals and also in the review petitions dealt with by this Court. The learned Counsel for the appellants also admitted that this point was incidentally concerned in certain connected proceedings disposed of by the Supreme Court. The question about incompetency of the Judges was thus expressly or by implication rejected in all the proceedings before this Court as also the Supreme Court. Besides, the order dated 19-12-1949 of the learned District Judge, overruling the said objections is rendered conclusive as no appeals had been preferred therefrom. In any view of the matter, the said contention is untenable.

4. The more important is the second point which relates to the validity of the constitution of the Full Bench of this Court to deal with these regular appeals. Section 15 (3) of the Mysore High Court Act runs thus-

'When a Bench of the High Court consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question shall be disposed of in the manner prescribed in Section 98 of the Code of Civil Procedure.....or, at the direction of either of theJudges composing the Bench, it shall be referred to a Full Bench and the decision of the majority of the Judges on such Full Bench shall be the decision of the High Court.'

The Full Bench _ was constituted in pursuance of the said provision and was not disputed at the time of reference; the cases were governed by Section 15 (3) of the Mysore High Court Act and consequently the reference was in order. It is now contended that by the time the appeals were heard, the Mysore Civil Procedure Code and the High Court Act were superseded by the Instrument of Accession which requires the application of the laws then existing in the Dominion of India. The instrument of Accession was executed by His Highness in pursuance of the Indian Independence Act of 1947 on the 9th day of August 1947 and accepted on 16-8-1947 to take effect from 1st June 1949. A supplemental agreement was signed on 1st June 1949 and was accepted by the Central Government on 23-6-1949. It is agreed that Clause (1) of the Instrument of Accession declares accession of Mysore State to the Dominion of India: Clause (3) accepts matters specified in the Schedule thereto to the Government of India Act as matters in respect of which the Dominion Legislature may make laws for this State. Clause (8) of the Instrument of Accession declares as follows: --

'Nothing in this Instrument affects the continuance of my sovereignty in and over the State, or, save as provided by or under this instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in the State.' Clause (2) of the Supplementary Instrument of Accession makes a substitution for Clause (3) of the Instrument of Accession. The portion of the substituted clause as is necessary while considering the present subject-matter runs as follows: --

'I accept all matters enumerated in List I and List III of the VIIth Schedule to the Act as matters in respect of which the Dominion Legislature may make laws for the State' to which three provisos have been added, The second proviso runs as follows: 'Provided further that where a law of this State with respect to one of the matters enumerated in the said List III contains any provisions repugnant to the provisions of an earlier Dominion Law or an existing Law with respect to that matter, then if the Law of this State having been reserved for the consideration of the Governor-General of India has received the assent of the Governor-General, the law of the State shall prevail in this State; but, nevertheless, the Dominion Legislature may at any time enact further legislation with respect to the same matter.'

List III of Schedule VII to the Government of India Act contains subjects in which the Provincial and the Federal Legislatures have concurrent power to make laws. The Indian Civil Procedure Code is subject No. 4 in Part I of List III which by Clause (3) of the Instrument of Accession is accepted to be a matter in which the Dominion Legislature may make laws for the State.

It is argued that Section 98 of the Civil Procedure Code in this State is different from that of the Indian Code. The proviso to Section 98 of the Indian Code is omitted in the State Code of Civil Procedure. According to the Indian Code, the proviso to Section 98 states that if the Judges composing a Bench differ in opinion on a point of law, they must state the point of law upon which they differ and the appeal then shall be preferred upon that point only by one or more of such Judges and such point shall be decided according to the opinion of the majority (if any) of the Judges who heard the appeal including those who first heard it. In respect of the procedure fixed in this proviso. Section 15 (3) of the Mysore High Court Act prescribes that in case of difference of opinion of the Judges composing a Bench, the case shall be referred to a Full Bench for disposal. It is argued that the provisions of State Code are repugnant to those contained in the then existing law of Dominion and the law repugnant can only be put in force if it has received the assent of the Governor-General for continuance. But since the Civil Procedure Code of the State has not received such assent, the earlier Dominion law or the existing law should have been applied. The procedure thus followed in the constitution of the Full Bench is invalid and the decision of the Tribunal so constituted is a nullity for all purposes.

I am unable to accept this contention. The Ruler of the State has indeed accepted the Civil Procedure Code as one of the matters in respect of which the Dominion Legislature may make laws for the State. The proviso to the supplemental agreement of Accession only reserves power by the Union to enact laws enumerated in the concurrent list at a future date till which time the law of the State shall prevail. This proviso cannot help the appellants to support the contention that in the absence of reservation, the Indian law shall prevail over the State law. Even otherwise, the proviso could only mean that the law of the State will have been reserved for consideration having received the assent of the Governor-General for such reservation and hence the operative clause--the law of the State shall prevail in the State -- shall make the then existing law of the State to prevail till the Dominion Legislature enacts further legislation with respect to the same matter. In this connection, it may be useful to examine Section 107 of the Government of India Act, 1935, as the second proviso under consideration is substantially similar to Clause (2) of Section 107. Sub-Section (1) lays down that--'If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian Law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or as the case may be, the existing Indian law shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.' Sub-section ' (2) provides exception to Sub-section (1) and runs thus-

'Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal law or an existing Indian law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General or for the signification of His Majesty's pleasure has received the assent of the Governor-General or of His Majesty, the Provincial law in that province prevail, but nevertheless the Federal Legislature ' may at any time enact further legislation with respect to the same matter.'

Clause (1) of Section 107 of the Government of India Act does not find a place in the Instrument of Accession and viewed from that point, the existing Indian law cannot prevail over the existing State law until the Dominion Legislature further enacts with respect to the same matter. It can, therefore, be said that the law and the provisions of which are repugnant to the existing Indian law has been reserved for consideration with the assent of the Governor-General and the law of the State shall continue to prevail subject only to the Dominion Legislature enacting further laws with respect to the same matter.

This interpretation gains support by the provision of the Adaptation of Laws Order, 1950 issued on 26th January 1950 which declares that the existing State law which immediately before the appointed day was a law in force in any province or part thereof, until repealed or amended by a competent legislature or other competent authority is in force subject to the adaptations directed in this order. If the law of the State had been superseded by the Instrument of Accession, there was no necessity either to refer or declare in respect of an existing State law to prevail in the Adaptation Order or in Article 372 of the Constitution, Article 372 of the Constitution also provides that all the laws in force in the territory of India immediately before the commencement of the constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. The subsequent amended Code of Civil Procedure passed by the Do-minion Legislature Act II of 1951 is made applicable to the whole of India and was brought into effect in this State on and from 1st of April 1951. I have little or no hesitation in holding that till the amended Civil Procedure Code was brought into operation in this State, the then existing Civil Procedure Code of the State was the law which was applicable and the constitution of a Full Bench in pursuance of Section 15 (3) of the Mysore High Court Act read with Section 98(3) of the Civil Procedure Code was perfectly valid, and the contention of the learned Advocate should therefore fail.

5. What then remains to see is whether the objections put forward by the judgment-debtors in relation to the execution proceedings and the orders passed thereon are tenable on other grounds. The order on I. A. No. 1 dated 19-12-1949 has become conclusive as no appeal was preferred therefrom. The order passed on the review petition I. A. No. IV is not appealable. As stated above, the objections merely relate to the competency of the Judges and the validity of the constitution of the Full Bench. The executing Court cannot go behind the decree save in exceptional circumstances. We find no such exceptional circumstances touching the jurisdiction of the Court or otherwise.

6. The appeals therefore fail and are dismissed, parties bearing their own costs.

Mallappa, J.

7. These two appeals have been filed against orders in execution cases, 106 and 107 of 1949-50 on the file of the District Judge, Civil Station, Bangalore, dismissing applications (I. A. 4 in both the Execution cases) filed to review orders previously passed and to stay the execution cases.

8. The order in each of the two execution cases dismissing the applications filed for reviewing a previous order and to stay execution cannot, in appeal, be disturbed by this court and it is as such unnecessary to consider other points raised before this court.

9. As however, some points were argued before this court it may be desirable to refer to them. To understand the scope of the objections raised in this court and me lower court it is necessary to state a few facts. The petitioners contested the genuineness of a will executed by their father in probate proceedings but it was held that the will was genuine. They then filed a suit not challenging the genuineness of the will but contending that the properties in respect of which their lather had executed the will were joint family properties and he had no right to execute a will in respect of them. They succeeded in their suits but on appeal there was difference of opinion between Sri Balakrishnaiya and Sri Kandasami Filial JJ. who heard the appeal. As at that time (2-4-49) the Civil Procedure Code in Mysore, was applicable, the case was referred to a Full Bench by Balakrishnaiya J., as it could be done under that Code. The petitioners then filed applications after applications for the postponement of the case pending decision of an application before Government for constituting a special Ad hoc Bench. The Government did not grant their prayer nor was there any good ground made out by the petitioners for constituting a special Ad hoc Bench. Venkataramaiya, J. had appeared for one of the parties when he was an advocate and Puttaraj Urs J. had dealt with the case as a District Judge. A Full Bench consisting of the other three Judges was constituted and the case came up for consideration before it. The petitioners who were respondents in that case filed an application I. A. 16, saying that one of the three Judges was the Judge who had referred their case to the Full Bench and that another had passed orders in the connected probate proceedings. As it was usual in this court and other High Courts for the Judge referring a case to the Full Bench to sit in the Full Bench, the objection had no meaning.

The only point for consideration in the probate proceedings was whether the will was genuine or not, but that the genuineness of the will was not questioned in the Full Bench case by the petitioners. The only point before the Full Bench was whether the properties in respect of which the will had been executed were joint family properties or not. On this point there was no decision by any of the Judges constituting the Full Bench and there was nothing that was against their hearing the appeal. I. A. No. 16 was dismissed. After the Full Bench decision a review petition was filed. The only point urged at the time of argument in connection with the review petition was that the Full Bench had no jurisdiction to hear or decide the case under the Civil Procedure Code in Mysore. The Full Bench held that it was competent to decide the case and dismissed the review petition. It may be added that an application for a writ was filed before the Supreme Court questioning the competency of this court, but the petitioner did not succeed even in this.

10. It is when these proceedings were going on that an application was filed before the executing court for stay of the execution. The only objection filed in the execution cases is that 'The decree is a nullity having been passed by a tribunal, two of the judges of which were not competent to hear the appeal and as such it is wholly void, without jurisdiction and unenforceable'.

It will be noticed that the objection of the petitioners about the competency of the two Judges had been overruled before the case was decided and it is no wonder that the learned District Judge summarily overruled the objection and refused to stay the proceedings, as he cannot be said to be competent to decide again about the competency of the Full Bench, after that point had already been decided against the petitioners by this court and even otherwise the competency of the two Judges on the grounds already referred to cannot be questioned in execution proceedings. It must be pointed out however, that it is not against the orders overruling these objections on 19-12-1949 that the appeals have been filed and it may be added that the above objection about the competency of the two Judges was not also pressed before us at the time of the arguments in this case. What was however pressed was the competency of the Full Bench to decide the appeal. As the present appeals arise out of orders dismissing the applications for reviewing the previous orders and staying further proceedings, the point for consideration is whether the competency of the Full Bench which could have been urged in the objection statement filed in the execution cases but not urged, could be urged in review applications as a good ground for reviewing the previous orders. No attempt was made to show that there was any reason for the petitioners' failure to urge this point also in their objection statements. It cannot be said that the learned District Judge had any good reason to review his previous order merely because an objection not taken in the objection statements of the petitioners was later on taken in the review petitions. Then again the competency of the Full Bench to hear the appeal has been questioned and an order has been passed by the Full Bench holding that the Full Bench-was competent to decide the appeals. In view of this also, it cannot be said that the learned District Judge had power to review his previous order merely because the learned Advocate for the petitioners was subsequently able to discover another ground to question the competency of the Full Bench to decide the case. When the competency of the Full Bench was questioned on one ground, it was open for the petitioners to have questioned the same on the ground now urged and it is not correct to say that the learned District Judge was in the circumstances wrong in refusing to review the order previously passed by him or to stay further proceedings. The appeals against his order dismissing the applications for review and stay have therefore to fail.

10a. The new ground on which the competency of the Full Bench is questioned in the application for review filed before the District Judge is based on the fact that the second Instrument of Accession was signed by His Highness the Maharaja of Mysore in June 1949, that is before the Full Bench decision. It is contended that by this it wag the Civil Procedure Code of India that was applicable and not the Civil Procedure Code of Mysore. It will be noticed that such a contention was not raised at the time the Full Bench heard the appeal or at the time the review petition was argued before the Full Bench when the question of competency of the Full Bench to hear the appeal on another ground was pressed. Numerous orders have been passed under the Civil Procedure Code of Mysore till it was superseded by extension of the Civil Procedure Code, India, under Act II of 1951. The point however now urged has reference to para 3 of the Second Instrument of Accession. The first part of para 3 of the Second Instrument of Accession merely states that His Highness the Maharaja of Mysore has accepted all matters enumerated in List I and List III of the Seventh Schedule to the Act as matters in respect of which the Dominion Legislature may make laws for this State. The Civil Procedure Code is included in List III. Para 3 merely says with respect to what, the Dominion legislature could, on and alter that date, legislate and it does not refer to any change in laws existing at the time, without further legislation. The first proviso to it has admittedly no application. It Js however the second proviso that is said to replace the Civil Procedure Code of Mysore by the Civil Procedure Code of India. According to that proviso:

'Where a law of this State with respect to one of the matters enumerated in the said List III contains any provisions repugnant to the provisions of an earlier Dominion law or an existing law with respect to that matter, then, if the law of this State having been reserved for the consideration of the Governor-General of India hag received the assent of the Governor-General, the law of this State shall prevail in this State, but nevertheless the Dominion Legislature may at any time enact further legislation with respect to the same matter'.

It will be seen that the principal clause states that 'the law of the State shall prevail in this State', though it adds that in certain circumstances 'the Dominion Legislature may at any time enact further legislation with respect to the same matter'. There is nothing therefore in this proviso which states that 'Where a law of this State with respect to one of the matters enumerated in the said List III contains any provisions repugnant to the provisions of an earlier Dominion law or an existing law with respect to the matter then,'

the existing law shall be void and that the Dominion law shall prevail. It is evidently in view of this that Act II of 1951 had to be thought of, with the result that from 1st April 1951 the Civil Procedure Code of India has become applicable to Mysore. It was urged that Section 107 of the Government of India Act, 1935, a portion of which has been adopted in drafting the second Instrument, of Accession, may be read to understand the full scope of what is meant. Section 107 of the Government of India Act, 1935 is as follows:

'1. If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian Law with respect to one of the matters enumerated in the concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or, as the case may be, the existing Indian Law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.

2. Where a Provincial law with respect to one of the matters enumerated in the concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal law or an existing Indian law with respect to that matter, then, it the Provincial law, having been reserved for the consideration of the Governor-General or for the signification of His . Majesty's pleasure has received the assent of the Governor-General or of His Majesty, the Provincial law shall in that Province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter.'

It will be noticed that Clause (1) of Section 107 clearly states that when there is inconsistency between the Federal laws and State laws the existing Indian law shall prevail and the provincial law to the extent of the repugnancy be void. This has not been introduced in the second Instrument of Accession. This omission' evidently is to prevent any sudden change in law. The omission is very significant. Clause (2) of Section 107 of the Government of India Act, 1935 is similar to Second proviso to para 3 of the Second Instrument of Accession. That says where there is difference between the Provincial law and the Federal law, the Provincial law shall prevail in certain circumstances though the Federal Legislature has power to legislate with respect to the same matter. There is nothing in Clause (2) of the Government of India Act, 1935 which says that the Federal law shall prevail without further legislation by Federal Legislature. It is Clause (1) of Section 107 that states that when there is inconsistency between the Federal law and the State law. Indian Law shall prevail. But a similar provision has been very significantly omitted in the second Instrument of Accession relied on by the petitioners. There is thus no substance in the contentions raised on the application filed by the petitioners for review before the learned District Judge.

11. These points have been discussed as they were raised in the course of arguments, but it is necessary to state once again that this court cannot in appeal interfere with the orders of the lower court dismissing the applications filed in the execution case for the review of the orders passed previously and for stay of the proceedings.

12. Appeals dismissed.


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