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Gena and ors. Vs. Birdhichand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Ex. First Appeal No. 18 of 1954
Judge
Reported inAIR1958Raj189
ActsCode of Civil Procedure (CPC) , 1908 - Sections 13; Rajasthan Code of Civil Procedure (CPC) Adaption Ordinance (Amendment) Act, 1950 - Sections 43; Limitation Act, 1908 - Schedule - Article 183
AppellantGena and ors.
RespondentBirdhichand
Appellant Advocate M.M. Vyas, Adv.
Respondent Advocate Chandmal, Adv.
DispositionAppeal allowed
Cases ReferredDarbar Patiala v. Firm Narain Das Gulab Singh
Excerpt:
- - the next contention is about limitation and the third is to the effect that the plaintiff bad filed a suit in a civil coutt at pali on the basis of this decree and judgment on 12-11-41, that it was, dismissed in 1954 and thus, there being another decree relating to the dismissal of the respondent's suit, the previous decree was not executable in this state. in the first place, i should like to point out in conformity with what was said in i l r (1953) 3 raj 505 :(air 1954 raj 4) (b), that by virtue of section 43 of the rajasthan code of civil procedure adaptation ordinance (amendment) act (no......relating to the dismissal of the respondent's suit, the previous decree was not executable in this state. learned counsel for the respondent has, on the other hand, tried to support the lower court's decision. it would be proper to take up the objections in seriatim.4. to begin with the first contention, it is pointed out by the appellants' learned counsel that the copy of the decree itself shows that the defendants were residing in rajasthan, that they were non-resident foreigners and hence the foreign decree could not be executed in this state. it has been further pointed out that the executing court had relied on radhey shiam v. firm sawai modi basdeo prasad, i l r (1953) 3 raj 449 : (a i r 1953 raj 204) (fb) (a) in preference to prem chand v. dan mal, i l r (1953) 3 raj 505 : (air.....
Judgment:

D.S. Dave, J.

1. This is the judgment-debtors' appeal in execution proceedings and arises in the following circumstances :

2. On 13-11-35, respondent, Birdhichand, obtained a money decree from the High Court ofJudicature at Bombay in its ordinary Original Civil Jurisdiction against 5 persons, namely Narsilal, Hansa, Umaid Mal, Khuma and Ghena, on 27th November 1958, he got the said decree transferred from Bombay High Court under Section 39 and Order 21, Rules 5 and 6 of the Civil Procedure Code to be executed against defendants Nos. 1, 4 and 5. On 13-1-54, he presented an application for execution of the same decree in the Court of the Civil Judge, Pali. It was mentioned in that application that the total decretal amount including interest realisable upto the date of the application was Rs. 19,776-8-0, that Rs. 191-9-0 were received from the judgment-debtors on 23-9-41, and therefore, a prayer was made for realising Rs. 19,585 from the judgment-debtors. The judgment-debtors, in their turn raised several objections against the executability of the decree. Those objections were dismissed by the learned Civil Judge, Pali on 6-11-54, and the present appeal is directed against that decision.

3. Learned counsel for the appellants had raised many objections in the memorandum of appeal, but only three contentions have been pressed before us at the time of arguments. The first contention of the appellants' learned counsel is that the decree which is sought to be executed is a foreign decree which was passed against non-resident foreigners and therefore it is not executable in Rajasthan. The next contention is about limitation and the third is to the effect that the plaintiff bad filed a suit in a civil Coutt at Pali on the basis of this decree and judgment on 12-11-41, that it was, dismissed in 1954 and thus, there being another decree relating to the dismissal of the respondent's suit, the previous decree was not executable in this State. Learned counsel for the respondent has, on the other hand, tried to support the lower Court's decision. It would be proper to take up the objections in seriatim.

4. To begin with the first contention, it is pointed out by the appellants' learned counsel that the copy of the decree itself shows that the defendants were residing in Rajasthan, that they were non-resident foreigners and hence the foreign decree could not be executed in this State. It has been further pointed out that the executing Court had relied on Radhey Shiam v. Firm Sawai Modi Basdeo Prasad, I L R (1953) 3 Raj 449 : (A I R 1953 Raj 204) (FB) (A) in preference to Prem Chand v. Dan Mal, I L R (1953) 3 Raj 505 : (AIR 1954 Raj 4) (B), but the view taken in the second case was approved by a Full Bench of this Court in Laxmi Chand v. Mst. Tipuri, I L R (1956) 6 Raj 236 : ((S) AIR 1956 Raj 81) (C) and therefore, the executing Court has committed an error in.following the view taken in Radhey Shiam's case (A).

5. Learned counsel for the respondent has urged in reply that from the copy of the decree it is clear that defendant judgment-debtor No. 1, Narsilal Ramchand, had submitted to the jurisdiction of the Court at Bombay, that judgment-debtors Nos. 4 and 5, i. e., Khuma Ramchand and Ghena Ramchand, were shown in the decree as residents of Beawer, that they were not thus non-resident foreigners in British India in the year 1935, and therefore, the decree was executable in Rajasthan.

6. We have given our careful consideration to these arguments and it may be observed that in I L R (1956) 6 Raj 236 : ((S) AIR 1956 Raj 81) (C) the view taken in I L R (1953) 3 Raj 505 : (AIR 1954 Raj 4) (B) was preferred to the one which was expressed in I L R (1953) 3 Raj 449 : (AIR 1953 Raj 204) (A) and it was held that an ex parte decree of a foreign Court against a non-resident foreigner who had not submitted to its jurisdiction was an absolute nullityby International Law and that it must be regarded as a mere nullity by the Courts of every State except those authorised by special legislation in the country of the forum by which it was pronounced. It was also held that if a decree was a nullity when it was passed except in the State which passed it, it cannot become a living and executable decree in the areas of other States which happened to be merged with the State which passed the decree on account of political changes. Thus, according to the view taken in the above case, a foreign decree of the type, referred above, remained a nullity in this State in spite of the changes which had come about in 1947 or on the 26th of January, 1950, by the Constitution. Therefore, if the present decree were passed by the Bombay High Court against nonresident foreigners without their having submitted to its jurisdiction, it would certainly have been a nullity. The view of the executing Court which is based on Radhey Shiam's case (A) is not correct. It may however be pointed out that in Laxmichand's case (C) it was observed that the judgment in Premchand's case (B) was not correctly understood by certain Courts and they were under a mistaken impression that as soon as it was brought to their notice that a certain decree was an ex parte decree of a foreign Court, it became inexecutable in Rajasthan. It was clarified that this was not the effect of the decision in Premchand's case (B). It was observed by learned Chief Justice, with whom majority of other Judges agreed, as follows:

'In the first place, I should like to point out in conformity with what was said in I L R (1953) 3 Raj 505 : (AIR 1954 Raj 4) (B), that by virtue of Section 43 of the Rajasthan Code of Civil Procedure Adaptation Ordinance (Amendment) Act (No. XIV) of 1950 any decree passed by any civil Court in India or by a Court established or continued by the authority of the Central or any State Government was executable according to law within Rajasthan. Therefore, even though the decree might have been the decree of a foreign Court, it is executable within Rajasthan, though if it is a decree of a foreign Court as explained by me above, it will be open to the judgment-debtor to raise the objections under Section 13 of the Code of Civil Procedure. The subordinate-Courts, therefore, would have the right to refuse to execute the decree only if an objection is raised by the judgment-debtor under Section 13 of the Code of Civil Procedure and if they sustain the particular objection raised. Another misconception of the effect of I L R (1953) 3 Raj 505 : (AIR 1954 Raj 4) (B) which I find prevalent is that as soon as it is shown to the executing Court that the decree was passed ex parte by a foreign Court, the Courts refused to execute it. This again is not quite correct. The fact whether the decree was passed ex parte is not by itself sufficient for the Court to refuse execution of the decree, for a decree might have been, passed ex parte by foreign Court after the non-resident foreigner and submitted to its jurisdiction. The judgment-debtors, therefore, have to establish that they were non-resident foreigners and that the Court, which passed the decree, was a foreign Court at the time when it passed it, and they had not submitted to its jurisdiction. It is only when they prove all these things that they can ask for the executing. Court in this State to refuse to execute the decree.'

Therefore, though we do not agree with the trial Court's reasons for its decision on the first point, the decree remains executable against appellant No. 3 Narsilal, since it appears from the copy of the decree that he had submitted to the jurisdiction of the High Court at Bombay. We will consider at a later stage if the decree is not executable against him for the other two reasons. As regards appellants Nos. 1& 2, it appears from the decree that they have been shown as residing at Beawer at the time when it was passed. Learned counsel for the appellants has urged that this is not correct and that appellants Nos. 1 and 2 were always living at Khiwandi, tehsil Bali, district Pali. If other reasons do not come in the way, it would be necessary to send the case back to the executing Court to allow the parties to lead their evidence and then to decide whether appellants Nos. 1 and 2 were non-resident foreigners at the time the decree was passed and whether the decree was not executable against them for reasons mentioned in the observations quoted above.

7. Now, coming to the question of limitation, it is urged by appellants' learned counsel that the decree was passed on 13-11-55, that the application for executing the same was presented on 13-1-54, and that it was, therefore, beyond the period of 12 years' limitation under Article 183 of the Indian Limitation Act. Learned counsel for the respondent has urged, on the other hand, that since the appellants had made a payment of Rs. 191/8/- on 23-9-41, there was a revivor and if the period of 12 years' limitation is computed from that day the execution application is within limitation. It may be observed that there can be no two opinions on the point that unless the respondent is able to prove revivor as urged by him, the execution application would be beyond 12 years' period of limitation from the date of the decree. Learned counsel for the respondent has, however, pointed out to us in the file of the executing Court a certificate of the Prothonotary and Senior Master, dated the 18th November 1953, saying that it appeared from the register of suits kept in his office that a sum of Rs. 191/8/- had been paid by the defendants and received by the plaintiff in part satisfaction of the decree dated the 13th November 1935. If it is true that the appellants had made this payment, then the decree was certainly revived against them and the period of limitation would be computed from the alleged date of payment, i. e., 23rd September 1941. Learned counsel for the appellants, has, however, urged that his clients challenge the correctness of this certificate, that they had never paid such an amount and that if the decree-holder had managed to get the payment made by somebody representing to the Court that it was done on behalf of the judgment-debtors, he cannot get extension of limitation by such a trick. In the absence of any other evidence on the record, we cannot hold that the certificate given by the Prothonotary and Senior Master is incorrect, but if the case goes back to the executing Court, it would be proper for that Court to give a chance to the appellants to show that the said payment was not made by them and that the decree-holder had played a fraud upon the Court at Bombay by paying the amount himself and making a false representation that it was made by the defendants just to get extension in the period of limitation.

8. Before remanding the case, however, it is necessary to decide the last point which is equally important and which is of a unique type. The appellants have urged that the respondent brought a civil suit against them on the basis of the decree which is sought to be executed in the civil Court at Pali, that in that suit he had abandoned his claim for Rs. 5268/ 5/-, that the said suit was dismissed in 1954, and so long as that decree stands in this State, the decree of the Bombay High Court cannot be executed. These facts were not denied by the respondent in his written reply in the executing Court, but it was urged that the decree of the Bombay High Court did not merge in the suit; nor was it superseded and that it still remains executable. The question, therefore, for determination is whether in the presence of a decreeof a Court of this State dismissing the respondent's claim, the decree of the Bombay High Court on whose basis the claim was founded, can be executed in this State. In this connection we have been referred to Darbar Patiala v. Firm Narain Das Gulab Singh, AIR 1944 Lah 302 (D), in which it was held that :

'When a decree is obtained from a British Indian Court on a judgment of a foreign Court, the judgment and decree of the foreign Court cannot be said to have merged in the decree passed by the British Indian Court. The decree of the foreign Court remains, in spite of the decree passed in the British Indian Court, executable in the foreign country where it was passed'.

It may be remarked that this case is of little help to us in deciding the point before us. On this reasoning, all that can be said is that the decree of the Bombay High Court still remains executable in that State in spite of the respondent's suit having been dismissed in this State on the ground of limitation, but this is of little help in determining the question whether the decree of the Bombay High Court is executable in Rajasthan in spite of there being another decree of the Court of this State dismissing the respondent's claim. The question is not free from difficulty, but after giving our careful consideration, we are of opinion that in the presence of another decree of a Court of this State dismissing the respondent's claim based on the decree, which is sought to be executed, the decree of the Bombay High Court does not remain executable within this State. In the first place, the respondent abandoned his claim for Rs. 5268/5/0 when he filed a fresh suit in the Civil Court of this State. This means that he had forgone the decretal amount to this extent when he filed the suit. We think that both legally and morally he cannot claim this amount now from the appellants in a Court of this State. In our opinion, he cannot claim even the remaining amount when his total claim was once dismissed on ground of limitation. We may refer to Halbury's Laws of England, Third Edition, Vol. VII, page 140, where it is mentioned that apart from special statutory provision the English Court will not directly enforce a foreign judgment by execution or any other process, but they will regard the judgment as creating a debt between the parties to it. The debt and not a specially debt, the liability of the defendant arising on an implied contract to pay the amount of the foreign judgment.' It would, thus, appear that a foreign judgment has been treated as nothing more than a simple contract debt between the parties super-imposed by the judgment of the foreign Court. Once a suit is brought on the basis of such a contract in another State and that suit is dismissed, then the contract also comes to an end, so far as that suit is concerned. In our opinion, the decree-holder cannot in that case ask for the enforcement of the decree again. In view of these circumstances, the decree of the Bombay High Court does not remain executable, and since the appeal is fit to be allowed on this ground, the case need not be remanded to the executing Court for decision on other points referred above.

9. The appeal is, therefore, allowed, the decision of the Court below is set aside, and the execution application is dismissed with costs.


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