Skip to content


Mithalal and anr. Vs. Kapoorchand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberExecution Second Appeal No. 7 of 1954
Judge
Reported inAIR1959Raj47
ActsCode of Civil Procedure (CPC) , 1908 - Sections 13 and 14 - Order 21, Rule 22
AppellantMithalal and anr.
RespondentKapoorchand and anr.
Appellant Advocate Shrikishenmal, Adv.
Respondent Advocate Mangimal, Adv.
DispositionAppeal dismissed
Cases ReferredBandu Hari v. Bhagya Laxman
Excerpt:
.....the decree. thus, it would be open to the judgment-debtor, among other matters, to show that a foreign decree is not binding on him on the ground that it was not pronounced by a court of competent jurisdiction but until any such ground is properly established, the decree must be held to be binding and conclusive between the parties and cannot be condemned as a nullity. that is clearly not a matter of assumption but of proof, and unless such proof is forthcoming upon proper investigation, it would be wrong for the executing court to rush to the conclusion that the decree is not executable. in this connection z should also like to refer to the observations of the learned chief justice in laxmi chand's case, (s) air 1956 raj 81. at page 255 of the report, the learned chief justice..........with law. as for the contention relating to want of notice under order 21, rule 22, c. p. c., the learned judge held that it was immaterial. the judgment-debtors have now come up in appeal against the aforesaid judgment. 3. the contentions of the appellants in this court are the same as in the courts below. the first point to decide, therefore, is whether the learned district judge has fallen into error in remanding the case for an issue to be framed as to the non-executability of the decree in question and for deciding it after giving opportunity to both parties to lead their evidence on this aspect of the case. i have no hesitation in saying that the order of the learned district judge on this point is on the whole correct. it is true that the decree-holders in this case are seeking.....
Judgment:

I.N. Modi, J.

1. This is an appeal by the judgment-debtors Mithalal and another in an execution matter.

2. The facts leading to this appeal may be shortly stated as follows. The respondents decree-holders Kapoorchand and another obtained an ex parte decree against the judgment-debtors appellants for money from the City Civil Court, Bombay, on 18-10-1949. The respondents got this decree transferred to the court of Civil Judge, Balotra, and they filed an execution application on 10-5-1952,

It appears that no notice under Order 21, Rule 22, C. P. C., was issued against the judgment-debtor. appellants and some immovable property of theirs was attached and a notice under Order 21, Rule 66 was issued against them. It was in response to this notice that the appellants appeared in the execution court and objected to the execution of the decree in November, 1952.

They raised a number of objections but only two of them are material for the purposes of the present appeal. The first objection was that the decree was of a foreign court as the courts in the Bombay State were in 1949, and, therefore, it was inexecutable in the courts of this State. In the second place, it was contended that a notice under Order 21, Rule 22, had not been issued against the judgment-debtors, 'and, therefore,' the executing court had no jurisdiction to take any step in execution of the decree.

The Civil Judge Balotra who was the executing court by his judgment dated 5-11-1952, treated both these questions as of pure law and without framing any issue or recording any evidence, upheld the objections and dismissed the execution application. The decree-holders went in appeal to the learned District Judge, Balotra, who set aside the judgment of the executing court and remanded the case with a direction that an issue as to the non-executability of the decree be framed and the parties given an opportunity to produce evidence in support of their respective contentions and to decide the case afresh on the merits in accordance with law. As for the contention relating to want of notice under Order 21, Rule 22, C. P. C., the learned Judge held that it was immaterial. The judgment-debtors have now come up in appeal against the aforesaid judgment.

3. The contentions of the appellants in this Court are the same as in the courts below. The first point to decide, therefore, is whether the learned District Judge has fallen into error in remanding the case for an issue to be framed as to the non-executability of the decree in question and for deciding it after giving opportunity to both parties to lead their evidence on this aspect of the case. I have no hesitation in saying that the order of the learned District Judge on this point is on the whole correct.

It is true that the decree-holders in this case are seeking to execute a decree of a foreign court. It is also true that the appellants objected to the executability of this decree on the ground that it was a nullity in the courts of this State. I cannot help stating, however, that this was a very unsatisfactory way of raising the objection which was sought to be raised by the judgment-debtors.

The judgment-debtors should have really stated the various facts on which they relied to induce the court to come to the conclusion that the decree was a nullity according to international law having not been passed by a court of competent jurisdiction, these facts being that the defendants judgment-debtors were non-resident foreigners, that the decree had been passed against them in absentum and that they had not submitted to the jurisdiction of the court which had passed the decree.

Apart from that I should further like to make it clear that the learned executing Judge was not right in rushing to the conclusion that the decree in this case was a nullity, merely because he thought that it was an ex parte decree of a foreign court. In this connection I should like to draw attention to Section 14 of the Code of Civil Procedure which lays down that when a certified copy of a foreign judgment is produced before a court, it must be presumed that the judgment was pronounced by a court of competent jurisdiction unless the contrary appears in the record, though such a presumption can always be rebutted by showing that the court had no jurisdiction to pass the decree.

Reference may further be made to Section 13 of the Civil Procedure Code which enacts that a foreign judgment is conclusive on the matter directly decided by it between the same parties or their legal representatives or successors-in-interest except in those cases mentioned in the section itself. Thus, it would be open to the judgment-debtor, among other matters, to show that a foreign decree is not binding on him on the ground that it was not pronounced by a court of competent jurisdiction but until any such ground is properly established, the decree must be held to be binding and conclusive between the parties and cannot be condemned as a nullity.

4. Now this question of the competency of jurisdiction came up for consideration before a bench of this Court in Prem Chand v. Danmal, ILR (1953) 3 Raj 505: (AIR 1954 Raj 4), to which I was a party. As the ratio of this case was found to be conflicting with the decision of a Full Bench of this Court in Radheshyam v. Firm Sawai Modi Basdeo Prasad, ILR (1953) 3 Raj 449: (AIR 1953 Raj 204), the whole matter came up for consideration before a Special Bench of five Judges in Laxmichand v. Mst. Tipuri, ILR (1956) 6 Raj 236: ((S) AIR 1956 Raj 81). The effect of this last mentioned case is that it upheld the principle laid down in Prem Chand's case, (AIR 1954 Raj 4).

It may, therefore, be taken as settled law for the Courts in this State that a Court to be one of competent jurisdiction must have been competent in the international sense; that is, the defendant must have been a subject of the foreign country wherein the judgment had been obtained, or he must have been a resident in the foreign country when the action began against him, or he must have contracted to submit himself to the forum wherein the decree was obtained, or he voluntarily appeared in the foreign Court.

The position, in a nutshell, is that in a personal action a decree pronounced in absentum by a foreign court against a non-resident foreigner who has not submitted to the jurisdiction of the court passing the decree is by international law an absolute nullity except in the country of the forum by which it was pronounced. It was further held by the majority of the judges in ILR (1956) 6 Raj 236: ((S) AIR 1956 Raj 81) (with which view with all respect I did not find myself in agreement) that the decrees passed by erstwhile foreign courts which now form part and parcel of Rajasthan, though nullities when passed, were now valid and executable by virtue of certain enactments which were passed by the legislature of the integrated State of Rajasthan.

The latter aspect of the matter is, however, of no relevance for the purposes of the present appeal because the decree sought to be executed here is the decree of a court of the State of Bombay, as it then was, and not one of the covenanting States of the integrated State of Rajasthan. That being the state of law as laid down by this Court and having regard to Sections 13 and 14, C. P. C., already referred to above, the conclusion is inescapable that the burden would always be upon the judgment-debtor to prove in a given case that the ex parte decree sought to be executed against him was pronounced by a foreign court which was not competent to pass the decree in the international sense as explained above.

That is clearly not a matter of assumption but of proof, and unless such proof is forthcoming upon proper investigation, it would be wrong for the executing court to rush to the conclusion that the decree is not executable. In this connection Z should also like to refer to the observations of the learned Chief Justice in Laxmi Chand's case, (S) AIR 1956 Raj 81. At page 255 of the report, the learned Chief Justice observed that the judgment in Prem Chand's case, (AIR 1954 Raj 4), had been misunderstood by the subordinate courts as laying down that as soon as it was brought to the notice of the subordinate courts that a certain decree was an ex parte decree of a court which was a foreign court when the decree was passed, the decree became inexecutable in Rajasthan, but that was not the true effect of the decision in Prem Chand's case, (AIR 1954 Raj 4).

It was further explained that the circumstance that the decree was passed ex parte by a foreign court was by itself not sufficient for the court to refuse execution of the decree because the foreign court might have passed such a decree after the defendant had submitted to the jurisdiction of that court. In other words, what was laid down was that a decree of this kind would be inexecutable only, if an objection is raised by the judgment-debtor under Section 13, C. P. C., and that objection is sustained after due enquiry. It is here that the learned executing Judge went completely wrong and in so far as the learned District Judge has remanded the case for a proper enquiry and fresh decision, he has only corrected the error committed by the former;

5. What learned counsel for the appellants objects to, however, is that the learned District Judge has in his judgment made certain observations which are likely to prejudice the case of the appellants. In support of this grievance, learned counsel has drawn my attention to the following extract from the judgment of the learned District Judge.

'The counsel for the appellants has produced certain certified copies which give an impression that in fact the judgment-debtors had tried to get the ex parte decree set aside by the Bombay City Civil Court. 'So the inference is that they have submitted to the jurisdiction of that court. In such circumstances, it is very difficult to hold that this ex parte decree was a nullity'.'

(The underlining (here in ' ') is mine).

Now all I need say about this aspect of the matter is this. The language of the judgment of the learned District Judge is doubtless not as happy as one might have wished.

At the same time, reading his entire judgment, I have no doubt that it was not within his contemplation to have expressed any opinion on the merits of the objections which in accordance with his own order were required to be investigated and adjudicated upon. In any case, I do wish to make it quite clear that the executing Judge will arrive at his own conclusions on the merits of the objection under consideration uninfluenced by the observations made by the learned District Judge cited above or any other similar observations to be found in that judgment.

6. Turning next to the second objection raised by learned counsel, the contention pressed before me is that the learned District Judge was in error when he came to the conclusion that the failure to give notice under Order 21, Rule 22, C. P. C., could not have the effect of vitiating the execution proceedings in this case. Learned counsel for the appellants placed strong reliance on Raghunath Das v. Sunder Das Khetri, AIR 1914 PC 129, in support of his submission.

My attention was particularly drawn to that portion of the judgment wherein their Lordships stated that a notice under Section 248 of the Code (which corresponds to Order 21, Rule 22 of the present Code) is necessary in order that the court should obtain jurisdiction to sell property by way of execution as against the legal representative of a deceased judgment-debtor. The legal position, it is contended, must be the same where a decree is sought to be executed against a judgment-debtor after one year of the passing of the decree in accordance with the plain language of Rule 22,

It is then contended that where such a notice has not been issued, there is a complete lack of jurisdiction on the part of the executing court to proceed in execution against the judgment-debtor in such cases. It does seem to me that there was at one time a good deal of conflict in the High Courts in India as to the true effect and force of this rule. It is unnecessary to cite a long list of cases bearing on this controversy, and I consider it sufficient to say that in some cases the view was taken that the failure to give notice was only an irregularity, whereas, in other cases, it was held that that was an illegality vitiating the entire execution proceedings.

The matter then came up before their Lordships of the Privy Council in Raghunath Das' case (AIR 1914 PC 129), and I have already cited above the relevant observations from their Lordships' judgment upon which learned counsel lays tremendous stress. I must, however, point out with all respect that even after the aforesaid decision, the matter is not absolutely free from doubt or difficulty, and the trend of the judgments subsequent to the aforesaid decision has not been in line with it.

7. Thus in Chandra Nath v. Nabadwip Chandra, AIR 1931 Cal 476, Rankin C. J., observed that it was quite unnecessary to push the abstract logic of the case of AIR 1914 PC 129, to a ridiculous extreme, and that it seemed to him to be merely piling unreason upon technicality to hold that it was open to the judgment-debtors to object to the jurisdiction of the court because they had not got a formal notice to do something, namely, to dispute the execution of the decree when in point of fact they were busy disputing about it in all the courts for the best part of the last two years.

It was further stated that all that Order 21, Rule 22 required was that an opportunity should be given to the judgment-debtors against whom execution was taken out more than a year after the decree to show cause why execution should not proceed, and that where a notice under Order 21, Rule 66 having been given, the parties were disputing about the execution of the decree, the failure to give notice under Order 21, Rule 22 was not an illegality.

8. The aforesaid case was followed in Sunder Ram v. Harangi Ram, AIR 1938 Pat 289, and it was held that where the applicant had notice of the execution proceedings by reason of the notice under Order 21, Rule 66, the absence of a separate notice under Order 21, Rule 22 was not fatal.

9. A similar view appears to have been upheld in Vengu Chetti v. Valjee Kanjee and Co., AIR .1936 Mad 99, where the guardian-ad-litem of a minor judgment-debtor had appeared before the executing court and had asked for time to file his objections.

10. In Ladli Parshad v. Chaman Lal, AIR 1939 Lah 473, again it was held that where notice of execution proceedings and sale thereunder was issued under Order 21, Rule 66, and the judgment-debtor appeared and contested the proceedings, the failure to give notice under Order 21, Rule 22 and the emission to record reasons for dispensing with this notice was no more than an irregularity which did not take away the jurisdiction of the Court.

11. The same view appears to have been taken in Bandu Hari v. Bhagya Laxman, AIR 1954 Bom 114.

12. I do not wish to multiply authorities.

13. From a review of the case law made above, the following propositions may well be deduced.

(1) In cases falling within the scope of Rule 22, Order 21, a notice must, broadly speaking, be given to the judgment-debtor to show cause why the decree should not be executed against him. It is highly desirable that such a notice should be given to avoid unnecessary complications and delay in execution proceedings.

(2) The object of the rule requiring the giving of notice is to give the judgment-debtor an opportunity to show cause against execution. Where, therefore, the judgment-debtor has been served with a notice under Rule 66 of Order 21 and has thus been made aware of the application pending against him, as in this case, or where he otherwise appears and contests the application on the merits, it would be going too far to hold that the proceedings are illegal, unless the judgment-debtor is able to show that prejudice has been caused to him by the omission to give notice under Order 21, Rule 22, C. P. C. In the type of cases, although the failure to give the notice may be an irregularity, it does not and should not amount to an illegality vitiating the execution proceedings, because the execution occasions no surprise to the judgment-debtor, and the object of the rule to give him notice of execution has otherwise been achieved.

14. Now applying the aforesaid principles to the present case, I have no hesitation in coming to the conclusion that the failure to give notice under Rule 22, Order 21, in the present case to the judgment-debtors appellants when they had been given a notice under Rule 66 will be a needless formality and need not be insisted upon. I, therefore, hold that the failure to give the notice in this case cannot have the effect of vitiating the execution proceedings or the steps taken thereunder.

15. I should also like to add that the case before their Lordships of the Privy Council in AIR 1914 PC 129, was not a case where a notice under Order 21, Rule 66 had been given to the official liquidator, and, therefore, that case is, in any case, distinguishable from the instant case.

16. For the reasons mentioned, this appealfails and is hereby dismissed but without any orderas to costs.


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