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Peirce Leslie and Co. Ltd., Through their Authorised Agent, James Dell Vs. E.J. Perumal Alias Kochu Papi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1918Mad580; 42Ind.Cas.294; (1917)33MLJ130
AppellantPeirce Leslie and Co. Ltd., Through their Authorised Agent, James Dell
RespondentE.J. Perumal Alias Kochu Papi
Cases ReferredRuckmaboye v. Lulloobhoy Motichund
Excerpt:
.....clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. - 400, that section 42 and the following sections of the code of civil procedure do not authorise us to send or transfer our decrees for execution to the courts of native states, but has also satisfied me that this consideration by no means disposes of the question. and i do not think that this requirement is satisfied by the fact relied on before us, that it will be in accordance with the foreign law administered by the court, where proceedings are to be taken......and importance as to the execution by the courts of native states of decrees passed by courts in british india. the further investigation which the subject has now received has confirmed me in the opinion expressed in the recent case in chidambaram chetty v. ramanatham chetty (1917) 32 m.l.j. 187 in accordance with the decisions of the bombay and calcutta courts in kasturchand gujar v. parsha mahar i.l.r. (1887) b. 23 and batan mahanti v. khatoo sahoo i.l.r. (1902) c. 400, that section 42 and the following sections of the code of civil procedure do not authorise us to send or transfer our decrees for execution to the courts of native states, but has also satisfied me that this consideration by no means disposes of the question. those sections have a two fold effect. in the first place.....
Judgment:

Wallis, C.J.

1. This reference raises questions of novelty and importance as to the execution by the Courts of Native States of decrees passed by Courts in British India. The further investigation which the subject has now received has confirmed me in the opinion expressed in the recent case in Chidambaram Chetty v. Ramanatham Chetty (1917) 32 M.L.J. 187 in accordance with the decisions of the Bombay and Calcutta Courts in Kasturchand Gujar v. Parsha Mahar I.L.R. (1887) B. 23 and Batan Mahanti v. Khatoo Sahoo I.L.R. (1902) C. 400, that Section 42 and the following sections of the Code of Civil Procedure do not authorise us to send or transfer our decrees for execution to the Courts of Native States, but has also satisfied me that this consideration by no means disposes of the question. Those sections have a two fold effect. In the first place they empower the Courts to which a decree is sent for execution to execute it when the Court to which it is sent is subject to the authority of the Indian. Legislature, an effect they cannot have as regards a Court in a Native State which is not subject to this legislative authority. In the second place they have the effect of depriving the Court sending the decree of authority to execute it itself and of making the Court to which the decree is sent the executing Court to all intents and purposes. They in fact effect a transfer of the decree for purposes of execution. Maharajah of Bobbili v. Narasaraju Bahadur I.L.R. (1916) M. 640 and Chutterpat Singh v. Bai Bahadur Saita Soomarimull I.L.R. (1915) C. 903.

2. Where the Courts of Native States have been empowered by the legislative authority to which they are subject to execute the decrees of British Courts, there is nothing to prevent the Indian Legislature from providing that the decrees of British Courts may be sent to them for execution and that such sending should have the same effect as if the decrees had been sent for execution to Courts in British India. This is exactly what the Indian Legislature has done as regards certain courts in Native States by Act VII of 1888 whereby it inserted in the Code of 1882 a new Section 229 A, now Section 45 of the present Code. With regard to Courts which have been established or continued in Native States by the authority of the Governor General in Council (in the exercise of foreign jurisdiction) and to which Section 45 has been declared to apply by notification issued by the same authority, that section provides that so much of the foregoing Sections (38 to 44) as empowers a Court to send a decree for execution to another Court shall be construed as empowering a Court in British India to send decrees for execution to such Courts. Its effect is to authorize our Courts to transfer their decrees for execution to those Courts, when the legislative authority to which they are subject, the Governor General in Council, has empowered them to execute them. It is important to observe that neither in 1888 nor when the present Code was enacted was any such provision introduced as regards other Courts in Native States, and the inference seems irresistible that Courts in British India are not authorised to send or transfer their decrees for execution to Courts in Native States in the same way as to Courts to which they are authorized to send them by the Code, The omission is the more remarkable with regard to Courts in Native States not established or continued by the authority of the Governor General in Council, because Section 44 provides for the issue of notifications declaring that the decrees of these very Courts may be executed in British India as if they had been passed by the Courts of British India. Such a notification was issued with regard to the Travancore Courts and also the Cochin Courts in 1887 as part of a reciprocal arrangement by which those Courts were to execute the decrees of our Courts, and a Government Order, dated 29th March 1887 No. 671 (Judicial) directed the Regulations made by the Travancore and Cochin Governments to be communicated to this Court and to be published in the Port St Gecrge Gazette. Similar notifications have been issued with regard to the Courts of numerous other Native States based, on similar undertakings as to execution of our decrees in their Courts; and a Notification 2053 I.B., dated the 22nd September 1911, and printed in British Enactments in force in Native States, Vol. 8, p. 158, notifies for general information the Native States which have consented that the decrees passed by Civil Courts in British India may be executed in their territories by the Courts therein mentioned. It also appears that the decrees of our Courts have been executed by the Travancore Courts and the Courts of other Native States for many years, and it would be very unfortunate if we were obliged to hold that there was any legal impediment in the way of the satisfactory working of the system. There is no such necessity. It is I think clear from an examination of the provisions of the Code of Civil Procedure to which I have referred that the policy of the Indian Legislature has been to leave such decrees to be executed in the Courts of Native States pursuant to the legislative authority of such states, but not to provide, as they have in Section 45 as regards certain other Courts in Native States, for the transfer to them of the decrees of our Courts for execution so as to make them the executing Court as regards such decrees for all purposes with authority to decide all questions arising in the course of execution. The Indian Legislature has so far refrained from making provision for the transfer of these important powers with regard to the decrees of Courts in British India to Courts in Native States other than those specified in Section 45 of the Code.

3. Coming now to the powers conferred on the Travancore Courts and other Courts in Native States by their own legislative authorities to execute the decrees of Courts in British India, such execution might be authorised upon production by the decree-holder of a certified copy of the decree and an affidavit of non-satisfaction without any communication with the Court in British India which passed the decree. This would appear to be the system at home under the Judgments Extension Atcs of 1868 and 1882 where the procedure is for the decree-holder to get a certificate of the judgment from the officer of the Court which passed it and to register that certificate in the other Court upon which it becomes executable there as a decree. The regulations made by the Travancore State, and set out in the Government Order already referred to, provide for the execution of the decree upon receipt of a copy of the decree, a certificate of non-satisfaction, and a copy of any orders for execution or a certificate that no such order has been made, and appear to contemplate that those documents should be received from the British Court direct. If this be so, I can see no reason why a British Court should not act in aid of the Travancore Court and furnish them as matter of comity, and T think it its duty to furnish them and that it has inherent powers to do so. But an order that these documents should be sent to the Travancore Court is not an order sending the decree for execution to the Travancore Court, and should no longer be described as in the petition in the present case, as a transfer of the decree to the Travancore Court for execution.

4. My answer to the first question in the reference is that Courts in British India have no power to send the decrees for execution to the Travancore Courts, but may and should send to these Courts the documents they require to enable them to execute these decrees under the powers conferred upon them by the legislative authority in Travancore.

5. On this view the words 'proceedings thereunder' in the second part of the reference must be read as referring to an application to one of our Courts to send to the Travancore Court the documents required by it to enable it to execute our decree under the authority of the Travancore Legislature, and the question then is whether such an application affords a fresh starting point as regards execution of the decree by our own Courts under Article 182 of the Limitation Act. First with regard to the fifth clause in the third column, an application to the Travancore Court to execute the decree of a British Court under powers conferred upon it by the legislative authority in Travancore would not in my opinion be an application ' in accordance with law to the proper Court for execution' within the meaning of the article so as to create a fresh starting point for the execution of the decree by the executing Court in British India. The proper Court in my opinion for such an application is the executing Court under the law of British India which, as already shown is not the Travancore Court. The Indian Limitation Act extends only to British India and has no operation proprio vigore in Travancore. It prescribes periods of limitation as to the filing of suits and the execution of decrees in British India, and when it makes an application in accordance with law to a proper Court a fresh starting point, it must be taken to mean an application in accordance with the provisions of the law in British India to be found in the Code of Civil Procedure to which the article refers or elsewhere. It cannot have been the intention of the legislature to make an application for execution to a Court in a Foreign State under the law of that State and governed by the law of limitation there in force a fresh starting point under our Limitation Act for the execution of our own decrees in our own Courts. If this be so, I am equally of opinion that an application to a British Court to take a step in aid of the execution by a Travancore Court of the decree of a Court in British India would not be an application to take some step in aid of the execution of the decree within the meaning of the fifth clause of the article-Treating the application to the Court in this case as an application to send the necessary documents to the Travancore Court. I think it did not make a fresh starting point under the article.

6. With regard to the sixth clause, notice to show cause why the decree should not be executed was no doubt issued in the present case by the Court in British India prior to the so called transmission of the decree to the Travancore Court. That however was not in my opinion a notice required by the Code of Civil Procedure, 1908 so as to bring the case within the article. In the first place the Civil Procedure Code only extends to British India, and does not require any notice to be sent as a preliminary to the execution of a decree by a Court in Travancore. Secondly, it has recently been held by a Full Bench of the Calcutta Court in Chutterpat Singh v. Bai Bahadur Satia Soomarimall I.L.R. (1915) C. 903 that where the transfer of the decree for execution is authorized by the Code, the Code requires the notice to be sent by the Court to which the decree has been transferred for execution. My answer to the second question is in the negative.

Oldfield, J.

7. I respectfully agree with the conclusion that our Courts are entitled in the exercise of the inherent powers recognized in Section 151 of the Code of Civil Procedure to send the requisite documents to Courts in foreign states, with which the necessary arrangements have been made, and therefore to entertain applications asking them to do so.

8. But, as the powers invoked are inherent, it follows that they cannot be identified with any specifically conferred by the Code to do what it authorizes or to produce any result, for which it provides. There can therefore be no question of the issue of any notice being required by the Code in connection with their exercise or of such issue as the starting point for a fresh period of limitation under article No. 182 (6) Schedule I of the Limitation Act; and this is not affected by the fact that the Court executing the decree may properly exercise its discretion with regard to the issue of notice to the judgment debtor before deciding to use the powers in question.

9. The remaining contention is that the decree-holder's application for the sending of the necessary documents to the foreign Court affords a fresh starting point for limitation under article No. 182 (5), because it is for the taking of a step in aid of execution. It may be conceded that the application is, as the article requires, made in accordance with law to the proper Court. But, as was decided in Bhagwan Jethiram v. Dhondi I.L.R. (1896) B. 83 the execution, which is contemplated, must also be in accordance with law; and I do not think that this requirement is satisfied by the fact relied on before us, that it will be in accordance with the foreign law administered by the Court, where proceedings are to be taken. The point is not, so far as we have been shown, covered by direct authority. But a ground of decision can be found in the principle that ' the law of limitation is a law relating to procedure having reference only to the lox fore ' and that ' no Court is obliged to depart from its own notions of judicial order from mere comity to any foreign nation. 'Ruckmaboye v. Lulloobhoy Motichund (1851) 5 M.I.A. 234 and Story's Conflict of Laws 576, 580. It is the British Court, which has to decide whether the conditions postulated by the article are fulfilled and on this principle it will do so in accordance with its own law and without reference to other codes, which may include provisions regarding the executability and methods of execution of decrees different from those in our own. It may be argued that the existence of such provisions in the foreign code in question does not entail that they will in fact be employed or that any execution will take place, which the British Court could not approve and adopt. But that is beside the point, which is that the validity of a step in aid need not be tested, when or if any execution has taken place, but must be determinate, whether any takes place or not, with reference to the legality of the execution, which the step taken is contemplated as aiding. In the case of transmission by one British Court to another, that legality could not be doubtful, since the recipient Court could execute only in accordance with British law. It will be otherwise, when (as in the present case) the recipient Court is foreign and it is uncertain whether its proceedings in execution will conform to that law, the only one which our Courts dealing with the question of limitation can consider. In the absence of ground for any presumption that the foreign Court's proceedings in execution will be in accordance with the law applicable, an application to take a step in aid of them will not be one contemplated in article No. 182 (5).

10. For these reasons I would respectfully concur in the answers to the questions referred, which his Lordship the Chief Justice proposes.

Kumaraswami Sastri, J.

11. I have had the advantage of reading the judgments of the Chief Justice and Mr. Justice Oldfield who agrees with the conclusion arrived at by my Lord. I entirely agree with the judgments and as they deal fully with all the points raised I have nothing useful to add.


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