Skip to content


Akarappu Venkanna and ors. Vs. Akarappu Chennayya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad900; (1929)57MLJ393
AppellantAkarappu Venkanna and ors.
RespondentAkarappu Chennayya and ors.
Cases Referred and Galbraith v. Grimshaw
Excerpt:
- .....the imperial legislature has any power to legislate with regard to territories outside british india. british india is defined both in the general clauses act of 1868 and the general clauses act of 1897. it seems to me that the very notifications which constituted the district court of secunderabad negative the idea that it is a court in british india. these are courts established outside british india in pursuance of powers conferred by the foreign jurisdiction act, but these courts, though constituted by the governor-general in council, are really courts in native states. imay refer in this connection to the secretary of state for foreign affairs v. charlesworth, pilling & co (1901) a.c. 37. and carew, ex parted (1897) a.c. 719. i am of opinion that the district court of.....
Judgment:

Kumaraswami Sastri, J.

1. These applications arise out of a preliminary decree passed in C.S. No. 420 of 1922, a compromise subsequent to the preliminary decree between the parties to the suit, and an order by me on an application to confirm the compromise.

2. The facts are shortly these: C.S. No. 420 of 1922 was filed in this Court for partition of the joint family properties belonging to the Akarappu family. A preliminary decree was passed on the 5th December, 1922. On the 25th February, 1926, the decree-holder in C.S. No. 510 of 1926 on the file of the Bombay High Court, who had got a decree against the plaintiffs in C.S. No. 420 of 1922, applied for an attachment of the preliminary decree. The decree of the Bombay High Court is dated 15th June, 1926, and is for Rs. 53,230-9-0. The execution application was transferred to this Court by an order, dated 22nd November, 1926. On the 20th December, 1926, execution was applied for in this Court by the decree-holder in the Bombay suit and the preliminary decree of this Court was attached. On the 5th July, 1928, a compromise was entered into between the plaintiffs and the defendants in C.S. No. 420 of 1922, which is embodied in a stamped document, dated 10th August, 1928. An application was made in C.S. No. 420 of 1922 for a decree in terms of the compromise, and it came on before me on the 21st September, 1928. The attaching creditor in C.S. No. 510 of 1926 (Bombay High Court) appeared before me and objected to the compromise being made a decree as he had attached the preliminary decree. I went through the whole matter in my order, dated 21st September, 1928, and stated that a final decree would not be passed unless the amount payable to the attaching creditor was paid into it and dealt with in the manner which I directed. As there is some question as to the nature of my order, I may state at once that what I have done and what the order says is that, if the parties want me to pass a final decree in terms of the compromise, that can only be done on the condition that the attaching creditor who opposes the application is paid, and in the last portion of my order this is what I say: 'That the further hearing of this application for passing a final decree herein in terms of the said compromise do stand adjourned until after the defendants 1 and 2 herein pay the said amount into Court as directed in paragraph 1 above.' This amount was not paid as directed. There was an appeal filed against the order and stay obtained, which stay was subsequently discharged, but the appeal is still pending. The contention for the appellants there seems to be that I should have passed an unconditional order irrespective of the attachment and any rights of the Bombay creditor thereon. That is a matter which the Appellate Court has to dispose of. After the order which I passed the plaintiff in C.S. No. 420 of 1922 was adjudicated an insolvent on the 15th October, 1928, by the District Judge of Secunderabad. On the 28th of August, 1928, the Master made an order continuing the attachment, and the attachment is still pending.

3. There are three applications filed by the Bombay attach-ing-creditor. The first application contains a number of alternative prayers. Prayer (a) is to direct the defendants in C.S. No. 420 of 1922 to pay into Court a sum of Rs. 63,407-4-0; prayer (b) in the alternative, why leave should not be granted to the applicant to execute the order, dated the 21st of September, 1928, passed on the application of the defendants in C.S. No. 420 of 1922; prayer (c) in the alternative, why the compromise entered into between the plaintiffs and the defendants in C.S. No. 420 of 1922 should not be made a decree of Court and why liberty should not be granted to the applicant to execute the said decree; prayer (d) in the alternative, why leave should not be given to the applicant to execute the terms contained in paragraph 8 of the preliminary decree. There are two other applications for continuing the attachment.

4. I shall deal with the first application and the alternative clauses therein contained. It seems to me to be clear from the order which I passed on the application to pass a final decree on the 21st September, 1928, which I have already set out, that no decree has been passed in terms of the compromise. All that I said was that, if certain payments were made as directed by me which would remove the obstacle raised by the attachment, 1. would then pass a final decree in terms of the compromise because, if the attaching-creditor is paid, there will be no question of objection to the passing of the final decree. That sum has not been paid and, therefore, matters 'stand thus: There has been a preliminary decree passed by the Court; there is no final decree; an application to pass a final decree was made and granted on certain terms which terms have not been complied with and there is an appeal from my order which is pending in the Appellate Court. Under these circumstances, it seems to me difficult to see how I can pass orders on the first three alternative reliefs claimed. They can only arise on the footing that there has been a final decree passed on the compromise.

5. So far as the attachment is concerned, the question is whether I should continue the attachment, and here I have to deal with the contention of the Official Receiver of Secunderabad, who appears by Mr. Ramachandra Rao. He has asked to be made a party to these proceedings and I directed him to be made a party as I found it difficult to see how I could dispose of this matter without hearing the objections which the Official Receiver had. His contention shortly is that under the terms of the Provincial Insolvency Act which is extended to Secunderabad and governs the District Court of Secunderabad, the plaintiff in C.S. No. 420 of 1922 having been adjudicated an insolvent, the attachment by the plaintiff in the Bombay Court of the decree of this Court fails. For the plaintiff in the Bombay Court it is contended that the Secunderabad Court is a foreign Court and that the effect of an adjudication in Secunderabad does not affect the attachment of any rights in British India. So far as the Secunderabad District Court is concerned, there can be little doubt that the territories within the jurisdiction of the Secunderabad District Court are not British India; these are territories which have been ceded by the Nizam to the British Government under treaty. I may in this connection refer to Lee Warner's 'Protected Princes of India,' Chap. XII, pages 331 to 342 as to the way in which Secunderabad came to be under British control. The District Court has been established in Secunderabad under the Foreign Jurisdiction Act, 1890, of the Imperial Parliament. Under this Act, notifications have been issued by the Order of Council, dated 11th June, 1902, and 4th February, 1904, which are to be found in Macpherson's 'British Knactments in Force in Native States,' Vol. VI, page 23, and Vol. I, page 252 respectively, and the District Court of Secunderabad constituted. That Secunderabad is foreign territory is clear. I may in this connection refer to Hossain Ali Mirza v. Abid Ali Mirza I.L.R.(1803) C. 177. Reference has been made to Section 2, Clause (5), Section 10 and Sections 43 to 45 of the Code of Civil Procedure, and then it is argued from those Sections that the Secunderabad Court is not a foreign Court. But, as pointed out in Vulcan Iron Works v. Bishumbhur Prosad I.L.R.(1803) C. 177 the fact that the Code for certain purposes defines a 'Foreign Court' would not make that definition applicable in the case of all enactments. There is nothing in the Provincial Insolvency Act as regards the definition of a 'Foreign Court.' No doubt, for purposes of execution or sending processes, the Governor-General in Council has made provision in the Civil Procedure Code, but it is only for those purposes. So far as insolvency is concerned, there is nothing in the Pro-vincial Insolvency Act which says that the Court in Secunderabad which is out of British India is a Court in British India. I do not think the Imperial Legislature has any power to legislate with regard to territories outside British India. British India is defined both in the General Clauses Act of 1868 and the General Clauses Act of 1897. It seems to me that the very notifications which constituted the District Court of Secunderabad negative the idea that it is a Court in British India. These are Courts established outside British India in pursuance of powers conferred by the Foreign Jurisdiction Act, but these Courts, though constituted by the Governor-General in Council, are really Courts in Native States. Imay refer in this connection to The Secretary of State for Foreign Affairs v. Charlesworth, Pilling & Co (1901) A.C. 37. and Carew, Ex parted (1897) A.C. 719. I am of opinion that the District Court of Secunderabad is a foreign Court.

6. The position, therefore, is that the plaintiff in C.S. No. 420 of 1922 was adjudicated a bankrupt in a foreign Court. I do not think that such adjudication will put an end to all execution proceedings against the person adjudicated there, in British India. So far as British India is concerned, the Official Assignee takes the properties subject to all the equities. I may in this connection refer to Ex parte Holthausen. In re Scheibler (1874) 9 Ch. App. 722 and Galbraith v. Grimshaw (1910) A.C 508. It is stated that there is some difference as regards the effect of attachments in British India and English Courts, but I do not think that that makes much difference, the principle on which the cases are decided being that the trustee in bankruptcy or Official Receiver in a foreign Court cannot take advantage of the provisions of law applicable to Courts in British India as regards the ante-dating. I am, therefore, unable to agree with the contention of the Official Receiver of Secunderabad that, because of the insolvency in Secunderabad, I ought not to continue the attachment and grant the prayers in the two applications continuing the attachment.

7. I may state that, as regards the execution of the preliminary decree, Mr. Doraiswami Aiyar for the plaintiff wants only general leave to execute the preliminary decree and says that he does not press for execution of Clause (8), which is specifically stated in the summons. The order, therefore, on these applications is that the attachment of the preliminary decree will continue until further orders of this Court and that leave is given to the Bombay decree-holder to execute the preliminary decree. I decide nothing further as to the reliefs he may claim in that execution or the form which the application may take.

8. As regards the costs of these applications, I direct the taxed costs of all parties to come out of the moneys which are paid into Court under the preliminary decree; the Official Receiver of Secunderabad will be at liberty to take his costs out of any estate which may be in Secunderabad.


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