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A.S. Subramaniam Chettiar Vs. M.K. Srinivasa Ayyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 105 of 1947
Judge
Reported inAIR1951Mad289; (1950)2MLJ472b
ActsCode of Civil Procedure (CPC) , 1908 - Sections 8, 13 and 44
AppellantA.S. Subramaniam Chettiar
RespondentM.K. Srinivasa Ayyar
Appellant AdvocateN. Sivaramakrishna Iyer and ;V.S. Mayilenumperumal, Advs.
Respondent AdvocateM.S. Varadachariar, Adv.
DispositionRevision dismissed
Cases ReferredVithal Bhai v. Lalbhai
Excerpt:
- - dealing with this objection what the court below has said is this :the first contention appears to me to be well founded as i see that section 44, civil p......of british india. under order 21, rule 4, if a decree is passed outside the ordinary original civil jurisdiction of the high court, the execution of that decree within the city of madras must be-by the presidency court of small causes. it was argued before me that that provision applies only to the decrees of british courts. but the language of section 44 makes it clear that no distinction is drawn in this respect between the decrees of british courts and the decrees of foreign courts. my attention was drawn to s. 8, civil p. c., and it was contended that section 44 of the code is not included among the provisions made applicable to the presidency small cause court, that court has no jurisdiction to receive applications for execution from foreign courts. section 8 is intended to be.....
Judgment:
ORDER

Raghava Rao, J.

1. The plaintiff in a certain suit on the file of the District Munsiff's Court of Padmanabhapuram, Travanoore State, is the petitioner here. After obtaining decree in the suit he got it transferred to the Court of Small Causes here, and sought a warrant of attachment for moveables belonging to defendant 2 in the suit. Defendant 2 thereupon filed the petition out of which this civil revision petition arises asking for stay of execution of the warrant of attachment issued on three grounds : (1) that the Court of Small Causes had no jurisdiction to execute the decree of a foreign Court; (2) that the Travancore Court had no jurisdiction to pass any decree against him ex parte because he was not a resident of the Stats at the date of suit and he never submitted to the jurisdiction of that Court; and (3) that the suit and the application on their face were barred by limitation. The three objections were upheld by the Court below which consequently dismissed the execution petition. The decree holder seeks to have the order revised.

2. Learned counsel for the petitioner urges before me in regard to the first of the objections taken by defendant 2 that there are observations in Srinivasa Aiyangar v. Narayana Aiyangar, 93 M. L. J. 539: A. I. R. 1918 Mad. 645, in favour of the petitioner which the Court below has disregarded. Dealing with this objection what the Court below has said is this :

'The first contention appears to me to be well founded as I see that Section 44, Civil P. C., which empowers the British Indian Courts to execute the decrees of notified Indian States has not been made applicable to this Court. It is no doubt true that in Srinivasa Aiyangar v. Narayana Aiyangar, 33 M. L. J. 539 : A. I. R. 1918 Mad. 645 , his Lordship Seahagiri Aiyar J. observes thus : 'Section 8, Civil P. C., does not prescribe by implication the entertainment of applications for executions in respect of the decrees of foreign Courts by the Small Cause Court. I am, therefore, of the opinion that if the decree had been put in motion by a Judge of the Small Cause Court, there would have been no objection to its execution.' These observations are obiter dicta.'

The case in Srinivasa Aiyangar v. Narayana Aiyangar, 33 M. L. J. 539 : A. I. R. 1918 Mad. 645, was one in which the Registrar of the Presidency Court of Small Causes was moved to execute the decree of a foreign Court but was held not to have the power so to execute. Whether the Judge of the Small Cause Court would or would not have the power to put in motion such a decree by way of execution is not a matter which directly arose for decision in that case. The Court below in the present case is, therefore, right in its view that the observations of the learned Judge in that case with regard to this question are only obiter. Those observations are to this effect:

'Under Section 44, Civil P. C., the decrees passed by the Courts of a Native Prince or State in alliance with His Mojesty may be executed in British India as if they had been passed by the Courts of British India. Under Order 21, Rule 4, if a decree is passed outside the ordinary original civil jurisdiction of the High Court, the execution of that decree within the city of Madras must be-by the Presidency Court of Small Causes. It was argued before me that that provision applies only to the decrees of British Courts. But the language of Section 44 makes it clear that no distinction is drawn in this respect between the decrees of British Courts and the decrees of foreign Courts. My attention was drawn to S. 8, Civil P. C., and it was contended that Section 44 of the Code is not included among the provisions made applicable to the Presidency Small Cause Court, that Court has no jurisdiction to receive applications for execution from foreign Courts. Section 8 is intended to be supplementary to the rules of procedure provided by the Small Cause Courts Act and the rules framed thereunder. Section 8 does not prescribe by implication the entertainment of applications for execution in respect of the decrees of Foreign Courts by the Small Cause Court.'

The learned Judge, in my opinion, is in error in making these observations. Section 44, Civil P. C., is not one of the sections included in Section 8, Civil P. C., nor has Section 44, Civil P. C., been made applicable to the Court of Small Causes; I agree with the Court below with regard to this point and overrule the argument for the petitioner.

3. On the second objection upheld by the Court below this is what it says :

'It is apparent from the very judgment of the Travancore Court that the decision was given ex parte-against a person who was not resident in the State. There is ample authority for the proposition that in a personal action a decree pronounced by a Court of foreign State in absentem, the defendant not having submitted himself to its authority, is by International law, a nullity. See Gurdayal Singh v. Raja of Farid-kot, 22 Cal. 222 : 21 I A. 171 , Thirunavahkaru v. Parsurama Aiyar, 71 M. L. J. 838 : A. I. R.1937 Mad. 97, Vithal Bhai v. Lalbhai, I. L. E, (1942). Bom. 688 : A. I. R. 1942 Bom. 199.'

Mr. Sivaramakrishna Aiyar urges that even though there might have been no submission to the jurisdiction of the foreign Court on the pari of defendant 2 the fact was that he actually carried on business in the Travanoore State at the time the suit there was laid. That would give sufficient jurisdiction, according to learned counsel, to that Court to pass a decree against him. There is no evidence here, however, that defendant 2 was at the time of suit actually carrying on business or residing within the territorial jurisdiction of the Travancore Court. There is no error about the law applied by the Court below on this point, and its view must accordingly be accepted.

4. Argument has not been seriously advanced against the view taken by the Court below on the third of the objections raised by defendant 2, and it is unnecessary for me to deal with that aspect of the matter.

5. The civil revision petition must, therefore., be dismissed with costs.

6. Mr. Sivaramakrishna Aiyar desires me to say in dismissing this petition that this shall notprejudice any proceedings that may hereafter be taken by the plaintiff in execution of his decree on the basis that the Travancore State is not a foreign State, and that the decree in question is not a foreign judgment under the present Constitution of India. It is hardly necessary for me to say so, because it is always open to the petitioner to pursue whatever remediea he may have in law.

7. No question of interpretation of the Constitution arises at present and I refuse leave for appeal to the Supreme Court.


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