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V.S. Subramania Iyer Vs. Rm. V.V. Ramasami Pillai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Case NumberAppeal No. 695 of 1947 and A.A.O. No. 677 of 1945
Judge
Reported inAIR1951Mad531
ActsSpecific Relief Act, 1877 - Sections 42
AppellantV.S. Subramania Iyer
RespondentRm. V.V. Ramasami Pillai
Appellant AdvocateAdv. General, ;M. Ranganatha Sastri and ;K. Parasurama Iyer, Advs.
Respondent AdvocateK.V. Ramachandra Iyer, Adv.
Cases ReferredIn Mt. Maqbul Fatima v. Amir Hasan Khan
Excerpt:
.....to properties situated in foreign countries - improper and derogatory to prestige of foreign court in case decision of foreign court wrong for one reason or other. - - (b) to declare that the further proceedings against the other properties of chockalingam chettiar by the defendant in british india as well as in french territory is illegal for want of a personal decree in the said o. a declaration that a person is not liable in an existing or possible action is one that will rarely be made, although it is not beyond the power of the court in a very exceptional case to make such a declaration......mortgagor without obtaining a personal decree in o. s. no. 63 of 1939 and also as the orders in french india were obtained on a fabricated non-satisfaction certificate. he contended that as his right to his properties in karaikkal was infringed by an illegal order passed by the french court on the said assumptions, he would be entitled to a declaration to the aforesaid effect, whereas the learned advocate-general appearing for the appellant pressed on us the undesirability and the impropriety of issuing a declaration which will have the effect of holding that the order of a foreign court as wrong. under section 42, specific belief act, a court is authorised to give declaratory reliefs. it reads :'any person entitled to any legal character or to any right as to any property, may.....
Judgment:

Subba Rao, J.

1. These are two connected appeals and the only question that arises in both the appeals is whether the plaintiff would be entitled to the declaration asked for. On 19-4-1936 one T. N. S. Chockalingam Chetty executed a promissory note in favour of the defendant V. S. Subramania Ayyar for a sum of Rs. 31,500 and deposited with him the title deeds of three sets of properties by way of equitable mortgage. The properties so comprised in the equitable mortgage consist of 10 items of Chochaligam Chetty's own properties in Madras, two items in Madras in regard to which he had only mortgage interest and his mortgage interest in some properties situated in Karaikkal in the French territory. The said properties situated in Karaikkal were mortgaged by the plaintiff's father Vythilingam Pillai to Chockalingam Chetty by a deed of the year 1025. Subramania Ayyar filed O. S. 63 of 1939 on the file of the Court of the Subordinate Judge of Sivaganga to enforce the equitable mortgage and in that suit he sought to enforce his mortgage against the properties situated in India. Neither Vythi-lingam Pillai was made a party, nor his properties in Karaikkal were the subject-matter of that suit. Indeed the mortgagee could not enforce the rights against those properties as they were situated in a foreign country, Subramania Ayyar obtained a preliminary decree, Exhibit P-1 dated 10-10-1939 for recovery of a sum of Rs. 40,000 and obtained a final decree, Ex. P-2 dated 14-7-1940. In execution of the final decree he filed E. P. No. 147 of 1940, Ex. D-1, and brought the properties in British India to sale. In the sale about Rs. 7000 was realised and part satisfaction of the decree was recorded.

2. As the bulk of the properties mortgaged to Subramania Ayyar were in Karaikkal and as the amount due under the mortgage was not realised he took out appropriate proceedings in April 1941 in the French territory of Karaikkal, He followed the procedure obtaining in the French territory and appraised the plaintiff, Ramaswami Pillai, the son and the legal representative of Vythilingam Pillai by an 'Arikai' of his claim against defendant 1. The plaintiff totally denied his liability. Thereupon the defendant filed a suit against Chockalingam Chetty on the file of the Court of the Justice of Peace with exhaustive powers of Karaikkal on 24-4-1941 and obtained a decree against him on 8-8-1941. The plaintiff was appraised by an 'Arikai' of the institution of the suit and of the passing of the decree. After the obtaining of the decree appropriate proceedings were taken out in the French Court at Karaikkal against the plaintiff herein for the recovery of the amount from him. On 16-4-1942 an order was passed by the French Court at Karaikkal directing the plaintiff to pay a sum of Rs. 46,324-3-0 with interest and costs to the defendant. The plaintiff questioned the validity of the order passed against him and also denied his liability to pay any amount to Chockalingam Chettiar. His objections were negatived and his liability to Chockalingam Chetty was fixed at about a sum of ES. 81,000 with interest. The plaintiff preferred an appeal against that order to the High Court of Justice of the French Republic of Pondicherry. We are informed that the appeal was since dismissed and an appeal is taken against the judgment to the appellate Court in Paris.

3. The defendant is now taking proceedings in Karaikkkal for realising the amounts from the plaintiff by attachment of his properties. There is conflict of versions in regard to the scope of the suit filed in Karaikkal. The learned counsel for the respondent urges that the suit was to enforce the decree in O. S. 63 of 1939 whereas D. w. 1, the advocate who conducted the case for Subramania Ayyar in Karaikkal says in his evidence that a suit was filed against Chockalingam Chetty in Karaikkal, and that the basis of that suit was not Sivaganga decree alone but it was the whole of the right of Subramania Ayyar against Chockalingam Chetty. It is not necessary for the purpose of this appeal to determine the scope of the suit. It is enough to state that appropriate proceedings were taken in the Karaikkal Court for recovery of the amount due to the defendant.

4. On 27-4-1945 Ramaswami Pillai filed E. A. No. 249 of 1945 in O. S. 63 of 1939 on the file of the Court of the Subordinate Judge of Sivaganga under Order 47 and Section 151, Civil P. C. praying for an order declaring that the plaintiff was not entitled to proceed against the other properties of defendant l in the petitioner's hands either in British India or in the French territory of Karaikkal. That application was dismissed by the learned Subordinate Judge, Mr. R. Ganapathi Ayyar, on 25-9-1945 on the ground that the application was not maintainable and also on the ground that it was not a fit case for the exercise of his discretion. The learned Subordinate Judge gave convincing reasons for rejecting the prayer for a declaration. He says :

'Secondly I do not see how I can help the petitioner. He wants some declaration from me as to the law obtaining in British India. He wants me to say that the decree-holder cannot proceed against the properties of the judgment-debtor other than the hypotheca without first obtaining a personal decree. But I do not see why I should grant such a bare declaration when it has no reference to any proceedings pending before me. If the petitioner's object is to prove before the French Courts the law obtaining in British India he would have to prove it there in the manner provided by the law binding on the French Courts. In the statement of the ease which petitioner has filed before me he has stated that the decree-holder has obtained a decree against the judgment-debtor even in the French Court. It is represented on behalf of the respondent that he has attached petitioner's properties only in execution of that decree. If so I do not see how any declaration which I may give would help the petitioner. If he has any representation to make or defence to urge in the proceedings taken by the decree-holder in the French Courts the proper Court to deal with it will be the French Court and not this Court. I see no ground for granting the declaration which the petitioner prays for.'

Ramaswami Pillai preferred the above C. M. A. No. 677 of 1945 against this order of the learned Subordinate Judge.

5. He then filed O. S. No. 34 of 1946 on the file of the Court of the Subordinate Judge ofSivaganga praying :

'(a) to declare that the plaintiff in O. S. No. 63 of 1939 on the file of this Honourable Court viz., the defendant herein is not legally entitled to proceed against the properties of T. N. S. Chockalingam Chettiar either in British India or in the French Territory based upon the decree in O. S. No. 63 of 1939 on the file of this Honourable Court without obtaining a personal decree against T. N. S. Chockalingam Chettiar defendant 1 in O. S. No. 63 of 1939 on the file of this Honourable Court;

(b) to declare that the further proceedings against the other properties of Chockalingam Chettiar by the defendant in British India as well as in French Territory is illegal for want of a personal decree in the said O. S. No. 63 of 1939.'

These reliefs were based upon two allegations, namely, that there was no personal decree against defendant 1 in O. S. No. 63 of 1939 and that the defendant fabricated an alleged non-satisfaction certificate and obtained an order in the French Court on that fabricated document. The defendant in hia written statement admitted that there was no personal decree in O. S. No. 63 of 1939 but affirmed that he obtained a decree and the necessary orders in the French Court in accordance with law obtaining there, He also denied that he produced any fabricated non-satisfaction certificate in the French Court, but what he filed was only' a certified copy of the execution petition and the order thereon directing the entering of part satisfaction for a sum of Rs. 7978-1-0. The learned Subordinate Judge, Mr. S. Soundarajan, in exercise of his discretion granted the declaration asked for. He expressed the view that as the proceedings in Karaikkal Court were taken on the basis of the decree in 0. S. No. 63 of 1939 and as the proceedings in the Karaikkal Court had not become final it was a proper case for giving the declaration. The defendant preferred A. S. No. 695 of 1947 against that decree.

6. The only question argued before us was whether the Subordinate Judge was justified in giving the declaration in the circumstances of the case. The learned counsel for the respondent limited the scope of the declaratory relief prayed for by his client. He said that what his client wants is a declaration that his properties are not liable to be attached and sold in execution of the orders of the French Court as the defendant has no right to proceed against other properties of the mortgagor without obtaining a personal decree in o. S. No. 63 of 1939 and also as the orders in French India were obtained on a fabricated non-satisfaction certificate. He contended that as his right to his properties in Karaikkal was infringed by an illegal order passed by the French Court on the said assumptions, he would be entitled to a declaration to the aforesaid effect, whereas the learned Advocate-General appearing for the appellant pressed on us the undesirability and the impropriety of issuing a declaration which will have the effect of holding that the order of a foreign Court as wrong. Under section 42, Specific Belief Act, a Court is authorised to give declaratory reliefs. It reads :

'Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is BO entitled, and, the plaintiff need not in such suit ask for any further relief.'

It is settled law that it is discretionary with the Court to grant a declaratory relief or not. At p. 750 of the Specific Relief Act by Pollock and Mulla the following extract from a judgment of the Judicial Committee appears :

'It is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not, and in every case the Court must exercise a sound judgment as to whether it is reasonable or not under all the circumstances of the case to grant the relief prayed for. There is so much more danger in India than here of harrassing and vexatious litigation that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation.'

In 19 Halsbury's Laws of England, Lord Hail-sham's edition, the scope of declaratory reliefs is succinctly stated. At p. 215 it is stated :

'The power to make a declaratory judgment is a discretionary one; the discretion should be exercised with care and caution, and with regard to all the circumstances of the case, and must be exercised judicially. The power to make a declaratory judgment will not be exercised where the relief claimed would be unlawful or unconstitutional, or inequitable for the Court to grant, or contrary to the accepted principles upon which the Court exercises its jurisdiction. The Court will not make a declaratory judgment where the declaration would be useless or embarrassing or where an adequate alternative remedy is available, and will be slow to make a declaration as to future or reversionary rights; a declaration that a person is not liable in an existing or possible action is one that will rarely be made, although it is not beyond the power of the Court in a very exceptional case to make such a declaration.'

The learned Advocate-General cited a number of decisions from the English Reports laying down the rules for exercising the discretionary jurisdiction of the Courts. Though, as pointed out, by the learned counsel for the respondent those cases related to suits for injunction, the rules of guidance laid down therein are of general application.

7. In Moor v. Anglo Italian Bank, (1879) 10 Ch. D. 681 : 40 L. T. 620, the facts are : the plaintiffs were the co-executors of Henry Moor who was the holder of the debentures of the Florence Land and Public Works Company Limited; the said company was indebted to the defendant on a mortgage of certain lands in Florence and they filed a suit in Florence to enforce their mortgage where the properties were situated. In the winding up proceedings of the company in England an application was taken out for an injunction to restrain the defendants from prosecuting their proceedings in Florence. Jessel M. R. in dealing with that application made the following observations :

'Prima facie this Court cannot interfere to restrain that proceeding. The Court of the country must be assumed to know more about the law of its own country than the Court of a foreign country, and the risk of miscarriage in this Court if it undertook to administer Italian Law would be much greater than in the Courts of Italy, who are, of course, more familiar with their own law; and as all parties can appear in that Court and have their rights finally settled, it appears to me to be in the highest degree inconvenient for this Court to interfere at all, more especially when, to use an English phrase, the Italian Courts first had seisin of the matter, and have had seisin of it for some two or three years now past.'

In Norton v. Florence Land and PublicWorks Co., (1878) 7 Ch. D. 332 : 38 L. T. 377, a company with an office in London, and having house property at Florence raised a sum of money by the issue of 'Obligations' payable to bearer. Subsequently, by a mortgage in the Italian form, registered at Florence, the company mortgaged the property to a bank with a London Office who had notice of the obligations. The bank having taken proceedings in the tribunal at Florence to enforce their mortgage, an action was brought in England on behalf of the holders of the obligations against the company and the bank, claiming to be mortgagees of the Florence property in priority to the bank. In that action on a motion to restrain sale of the property Jessel M. R. held that the injunction could not be issued as the matter was already before the tribunal of the country where the property was situated. At p. 337 the Master of Rolls makes the following pertinent observations :

'It seems that these houses being in Florence the hank has taken proceedings in the Court of Florence, the proper Court having jurisdiction, to establish their title; and the litigation there to which the plaintiffs are or may be parties being in the Court of the country having actual jurisdiction over the subject-matter, and having entertained that jurisdiction by a prior litigation it is contrary to all the rules of the comity of nations that this Court should actively interfere between the same litigants.'

In Pennell v. Roy, (1853) 98 R. R. 78: 3 D. M. & G. 126, the Court of Chancery refused in the insolvency of a debtor in England to restrain a creditor who had not proved under the bankruptcy from proceeding in an action against the assignees in Scotland, for the purpose of recovering out of the real estate there an amount due to him. In setting aside the order of injunction issued by the Vice-Chancellor, Turner L. J. observed at p. 87 :

'I have less hesitation in discharging this order, because in my opinion, it is, as was expressed by Lord Eldon in Wright v. Simpson, (1802) 6 Ves. Jun. 714 : 31 E. R. 1272, the duty of this Court to give credit to foreign Courts for doing justice in their own jurisdiction; and I feel no doubt that if the claim of the defendant against the assignees be as unfounded as it appears to me to be, the Courts in Scotland have full power to discharge, and will at once discharge, the arrestment.'

In Mt. Maqbul Fatima v. Amir Hasan Khan, A.I.R. 1916 P. C. 136 : 36 I. C. 710, the Judicial Committee in a short judgment affirmed the judgment of the Allahabad High Court refusing to give a declaration that the judgment between the parties in British India would operate as res judicata, in the native State of Rampur and also an injunction against the defendant from continuing his suit in the native state. In the course of the arguments before the Judicial Committee, Lord Parker made the following observations :

'Only where it has jurisdiction to do so. Here the British Court has no jurisdiction in Rampur. How could any declaration bo binding on the Rampur Court ?'

8. The aforesaid extracts from the textbooks and the reported decisions establish the principles governing declaratory suits. In regard to proceedings pending in foreign Courts, a party is not entitled to a declaratory relief as of right. The Court would not and should not give a declaration as it had no jurisdiction in regard to the properties situated in foreign countries as if such a declaration were to be given, it would infringe upon the undoubted rights of the foreign tribunal to decide cases pending before it. We would go further and say that it would be improper and highly derogatory to the prestige of the foreign Court if we hold that the decision of the foreign Court was wrong for one reason or other. Even if we did, it would be brutum fulmen as the foreign Court would certainly ignore our decision. Applying the aforesaid principles we shall now consider the facts of the present case.

9. (His Lordship after considering the facts concluded). In the circumstances we are definitely of opinion that in the exercise of our discretion we should not give the declaration asked for. We, therefore, set aside the decree of the lower Court. Appeal No. 695 of 1947 is allowed with costs here and in the Court below and O. M. A. No. 677 of 1945 is dismissed. No costs.


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