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P.R. Srinivasa Aiyangar Vs. S.L. Narayana Rao - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1922)43MLJ700
AppellantP.R. Srinivasa Aiyangar
RespondentS.L. Narayana Rao
Cases ReferredPeirce Leslie v. Perumal I.L.R.
Excerpt:
.....section 13, civil procedure code, will then apply to the judgment of the chief court which was clearly an adjudication that, according to mysore law, the application was a step in aid and therefore the execution in mysore was not time-barred. when the foreign courts has laid down that an application such as the present to transmit the documents to british india was at the time it was made, a proper step in aid of execution i think it would be wrong for the british india court to hold, when called on to execute that foreign decree, that that application was not, at the time it was made, a perfectly legal step in aid within the meaning of article 182 of the indian limitation act. the present case is clearly distinguishable from nabibhai vazirbhai v......in a foreign state can be an application under article 182 for the purposes of executing a british india decree, i.e., a british india court must in fact in executing a british india decree rule these out of court altogether. oldfield, j. decides the case on another footing, viz., that there is a general uncertainty as to whether a foreign court will, in carrying out execution of a british india decree, conform to the law under which the transmitting british india court does the act of transmitting the papers. but the full bench judgment does not deal with the converse case or lay down that an application to a foreign court to transmit papers to assist execution of a foreign decree in british india is not a step in aid of execution under article 182, and i conceive that it is open to us.....
Judgment:

Walter Salis Schwabe, K.C., C.J.

1. This appeal is from an order of Kumaraswami Sastry, J. granting an application to execute a decree for costs of the District Court of Mysore. The judgment debtor objected on the ground that it was barred by limitation. J he facts so far as they are relevant are that the original decree was dated June 19th, 1911, and that in 1912 and 1914 attempts were made to execute the decree through the Small Cause Court, Madras, which failed through want of jurisdiction of that court and ended in about April 1914 by the sending back of the papers in the case by the Small Cause Court to the District Court of Mysore. In December 1916 an application was made to the District Court of Mysore to transmit the decree to the Madras High Court which failed owing to there being an attachment on the decree. A further application of the same nature was made on March 15, 1918 which application was dismissed by the Mysore District Court on January 30, 1919 but granted on appeal by the Chief Court of Mysore on July 21, 1920.

2. In pursuance of that order, a certified copy of the decree has been transmitted to this Court, and the application in this case is for leave to execute that decree. The period of limitation in such cases is provided by Article 182 Clause 5 of the Limitation Act of 1908 under which the time from which the period of limitation begins to run is the date of applying in accordance with law to the proper court for execution to take some steps in aid of the execution of the decree. It is common ground in this case that if the applications to the Mysore Court of 1916 and 1915 are steps in aid of execution, this application is in time, whereas, if they are not steps in aid of execution, this application is barred by limitation. The application of the 15th March, 1918 to the District Court and the subsequent appeal were attended and argued by both the parties and the point was then raised and fully argued that the application to transmit the papers with a view to obtaining execution by this Court is not a step in aid of the execution of the decree, and the Full Bench of the Chief Court of Mysore (vide Mysore Chief Court Reports Vol. 25, page 298) decided that it was according to the law of Mysore a step in aid of execution. The law of limitation contained in Clause 5, Article 182 of the Mysore Act is identical with Clause 5, Article 182 of the Indian Limitation Act. The difficulty arises owing to the fact that a converse case of the transmission of papers from this Court to a Native State for the purpose of obtaining the assistance of the Court of that Native State in executing a decree of a Court in this Presidency came before a Full Bench of this Court in Peirce Lesli v. Perumal I.L.R. (1917) Mad. 1069 and it was there held that such a step was not a step in aid of execution. We therefore have the anomalous position that in interpreting statutes in identical terms, the Chief Court of Mysore has held that an application to transmit the papers in a Mysore case to this Court is a step in aid of execution, while this Court has held that the application to transmit the papers in a Madras case to Travancore is not a step in aid of execution. The question to be considered is according to that system of law, whether the step taken is or is not a step in aid of execution, and in my judgment of the law to be considered is that of the place where the application is made which will generally also be the place of origin of the decree and I think that Clause 5 of the Article 182 of the Indian Limitation Act must be read to mean 'to take some step which, according to the law of the place where the application therein referred to has to be made, is a step in aid of execution'. It follows that it is the law of Mysore that has to be considered. By Section 13 of the Civil Procedure Code a foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties. There has in this case been a Foreign judgment on this matter directly adjudicated upon between the same parties, namely that according to the law of Mysore this is a step in aid of execution and I think that under that section it is not open, whatever this Court might have said in such cases, to an unsuccessful party to the application in Mysore to contend here that the law of Mysore is otherwise. I should add that I do not agree with the contention addressed to us that the order applied for in Mysore was an application for the mere performance of a ministerial act, it was an application to the court in its Judicial capacity and the court's order was a judgment. Further apart from this section, there is in this case a decision to this effect by the highest court in Mysore. In my judgment the fact that a Full Bench of this Court holds that the law in British India is otherwise is not a sufficient ground for this Court to hold that the Chief Court of Mysore has interpreted the Mysore Statute wrongly although the Statutes are in identical terms. It follows that as the step is to be a step which according to the law of Mysore is a step in aid, in my judgment we are bound to hold that this application to transmit the papers here was a step in aid of the execution of the decree.

3. I desire to add this, that the question whether a similar application to transmit the papers would have been a step in aid if made in British India, in the view that I have expressed, does not arise for decision. If it did I should feel myself bound by the decision of the Full Bench of this Court in Peirce Leslie v. Perumal I.L.R.(1917) Mad. 1069 . I must however, not be taken to agree with that decision. It has been strongly disapproved of by a Divisional Bench in Janardan Govind v. Narayanakrishnaji I.L.R. (1918) 42 Bom. 420 . The point has been argued before us and the inclination of my mind is to agree with the Bombay decision and not with that of the Full Bench of Madras, and if the same point arises again, I should wish to have it reconsidered by a Full Bench. For the reasons given above the appeal must be dismissed with costs.

Wallace, J.

4. The District Court of Mysore has transmitted to this Court, at the request of the respondent for purposes of execution in this Court a decree of that court in which he is the assignee-decree-holder, a certificate of non-satisfaction and a copy of the decree and previous execution orders. There is in force a reciprocal working arrangement between the courts in the Madras Presidency and those in Mysore State under which a decree obtained in one locality may be executed in the other on application by the decree holder, provided he has arranged with the court of the former locality to transmit to the latter a copy of the decree, a certificate of non-satisfaction, and copies of previous orders in execution. It was contended before the District Court of Mysore by the present appellant, the judgment-debtor, that the execution was time-barred. He succeeded in that court but in the chief court to which he took the matter in appeal he failed. Now the respondent seeks to execute his decree in British India. The appellant urges the same ground, namely, that the execution is time-barred. The point on which for the purposes of this appeal, the discussion of the question of limitation arose was whether the application to the District Court of Mysore dated 9-12-16 continued by a further application dated 15-3-18 to transmit the decree to this Court was or was not a step in aid of execution. That court and the Chief Court of Mysore on appeal held that it was and that execution was not time barred. The appellant invites us to hold that it was not a step in aid of execution and therefore the decree is time barred. That is his stand point and the only one which he has taken in this appeal.

5. Three points arise first of all, whether the judgment of the Chief Court is res judicata and binding on the appellant by force of Section 13 of the Civil Procedure Code, secondly whether, if not, this Court can give an independent finding on that point, and thirdly whether if it can, the application was or was not a step in aid.

6. On the first point there is a preliminary contention of the appellant that the District Court of Mysore was acting without jurisdiction or rather extra judicially, in transmitting the decree papers to this Court that therefore Section 13 of the Civil Procedure Code will not apply. To that I do not agree. It was essential for that court before transmitting the papers to satisfy itself that the decree was subsisting and executable, and that the case was a fit one for obliging the decree holder. Further, in sending the papers it presumably divested itself of any further powers of executing the decree itself. Such acts of the court are undoubtedly judicial and within its jurisdiction. The District Court in transmitting the documents, was acting under Order 21, Rule 6 of its own Civil Procedure Code - vide its order, dated 15-12-1920. Section 13, Civil Procedure Code, will then apply to the judgment of the Chief Court which was clearly an adjudication that, according to Mysore Law, the application was a step in aid and therefore the execution in Mysore was not time-barred. The adjudication cannot however be stretched to mean that, according to British law, execution is in time. The judgment is only res judicata so far as it goes and no further, and I do not think it can be interpreted as deciding once and for all so as to make the matter res judicata that a proper step in aid within the meaning of Article 152 of the Indian Limitation Act was taken on 9-12-1916, and that the respondent cannot now be retrograded in that respect. If the application before us now has to be dealt with under Article 182 of the Indian Limitation Act, as to which I feel no doubt, that article is to applied as it stands unless there is some bar apart from it which stands in the way of that application. The Chief Court's order in my view is not such a bar since it only lays down that, in the territory within the jurisdiction of that court, the application was not barred. I therefore answer the first point accordingly.

7. As to point 2 it is really already answered. On this point I upheld the appellants' contentron that, when such an application comes before a British India court, that court is entitled to consider, and indeed is bound to consider, whether it is time barred under the law of British India and to come to an independent conclusion. If it finds that the law of British India declares that the application is time barred it will refuse to take steps in execution of the decree. This is the principle laid down in Nabibhai Vazirbhai v. Dayabhai Amulakh I.L.R. (1916) Bom. 504 and by Oldfield, J. in Pierce Leslie v. Perumal I.L.R. (1917) Mad. 1069. That is to say, the lex fori governs all such cases and each court must execute under its own laws. The respondent cannot therefore ask a British India Court to execute this decree, if under British India law the execution of it is time barred. That is my answer to point 2.

8. As to point 3, I have now to decide whether as a matter of fact the application is time-barred, that is, whether the application of 9-12-1916 was a step in aid of execution or not within the meaning of Article 182 of the Indian Limitation Act. In limine the appellant contends that the Full Bench decision in Peirce Leslie v. Perumal I.L.R. (1917) Mad. 1069 concludes the matter, but there I cannot agree with him. That decision laid down that an application to a British India Court to transmit to a foreign court such execution papers as are required to enable it to execute the decree is not a step in aid of execution within the meaning of Article 182 and it proceeds on the principle that, there being no legal provision for reciprocity by which British India Courts can send their decrees for execution to a foreign court and vice versa, but only an arrangement of comity by which either court will, when asked send the necessary papers to the other in order to assist execution, such despatch of papers is not a step in aid of execution, Wallis, C.J., however goes further and lays down that no application for execution arising under a foreign law in a foreign state can be an application under Article 182 for the purposes of executing a British India decree, i.e., a British India Court must in fact in executing a British India decree rule these out of court altogether. Oldfield, J. decides the case on another footing, viz., that there is a general uncertainty as to whether a foreign court will, in carrying out execution of a British India decree, conform to the law under which the transmitting British India Court does the act of transmitting the papers. But the Full Bench judgment does not deal with the converse case or lay down that an application to a foreign court to transmit papers to assist execution of a foreign decree in British India is not a step in aid of execution under Article 182, and I conceive that it is open to us to come to our own conclusion on this point. To lay down that an application to a foreign court to execute its own decree cannot be a step in aid of execution under Article 182 of the Indian Limitation Act would be to stultify the whole reciprocal arrangement, for assisting in the execution of decrees which has been mentioned above, since it will follow that no execution of a foreign decree could be obtained in a British India court after the expiry of three years from the date of the decree, for, however, many execution applications may have kept it alive in its own state, none of those would keep it alive in British India; since they would not be applications for or steps in aid of execution under Article 182. This position seems to me to be a very difficult one to maintain, The essence of the comity arrangement which is described and relied on in Javaradnn Govind v. Narayana Krishnaji I.L.R.(1918) 42 Bom. 420 is that each reciprocating court will recognise the other's proceedings, so that if one court has laid down that at a particular date the decree was not time-barred, the other shall not lay down that on that same date it was time barred. When the foreign courts has laid down that an application such as the present to transmit the documents to British India was at the time it was made, a proper step in aid of execution I think it would be wrong for the British India Court to hold, when called on to execute that foreign decree, that that application was not, at the time it was made, a perfectly legal step in aid within the meaning of Article 182 of the Indian Limitation Act. The present case is clearly distinguishable from Nabibhai Vazirbhai v. Dayabhai Amulakh I.L.R. (1916) Bom. 504. There was no ruling there of a foreign Court on the matter which came before the British India Court. I therefore conclude that the Peirce Leslie v. Perumal I.L.R. (1917) Mad. 1069 case does not compel us in applying Article 182 of the Indian Limitation Act, to hold that the application in the Mysore Court, which was a proper step in aid under Mysore Law, was not a step in aid of execution within the meaning of that article. That is, when we have to consider the interpretation of that article with reference to execution of a foreign decree, we have to consider not whether the application would have been a step in aid in British India with reference to the execution of a British India decree, but whether the application having reference to a foreign decree and having been brought in the proper foreign court, was a step in aid under the law of that court; and, if it was, as it was, such a step in aid, it satisfies Article 182. The conclusion then is plain that the present application is a step in aid and therefore the execution of the decree is not time-barred, I therefore agree that this appeal be dismissed with costs.


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