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M. L. M. Ramanathan Chetty Vs. T. A. Chidambaram Chetty and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in41Ind.Cas.41
AppellantM. L. M. Ramanathan Chetty
RespondentT. A. Chidambaram Chetty and anr.
Cases ReferredSee Ajant Singh v. Sundar Matt
Excerpt:
civil procedure code (act v of 1908), section 44 - trans, mission of decree for execution to native state, legality of--jurisdiction--practice--ex parte order for transmission--right of party aggrieved--limitation act (ix of 1908), schedule i, article 182. - - further, it is a well-known principle of jurisprudence that no country can legislate for the procedure to be followed in a foreign state......his property is situate. section 40 deals with the transmission of decrees to another province in british india. section 43 provides for a decree being sent to a court established by the governor-general in council outside british india under the foreign jurisdiction act. as supplementary to section 43, section 45 lays down that in the courts so established, the rules which are observed in the execution of decrees in courts in british india shall be followed. section 44 deals with decrees of what are known as favoured native states. that section provides that decrees of the courts of any native prince or state in alliance with his majesty may be executed in british india as if they were passed in british india. there is no converse provision that decrees passed in british india can.....
Judgment:

1. In Original Suit No. 111 of 1915, the respondent obtained a decree on the Original Side of the High Court against the appellant for a large sum of money. In November 1915, an application was made for concurrent execution of this decree in Madras, Burma, Tanjore and Puduoottah. As the decree was passed within a year of the application, it was granted without notice to the appellant. The decree was transmitted to the Chief Court at Puducottah on the 23rd November 1915 for execution. On the 19th October 1916, an application was made to Courts Trotter, J., for the cancellation of the Order transferring the decree to Puduoottah. The application was dismissed, on the ground apparently that it was in accordance with settled practice, Hence this appeal.

2. Section 39 of the Code of Civil Procedure provides for the transmission of decrees for execution to Courts within whose jurisdiction either the judgment-debtor resides or his property is situate. Section 40 deals with the transmission of decrees to another Province in British India. Section 43 provides for a decree being sent to a Court established by the Governor-General in Council outside British India under the Foreign Jurisdiction Act. As supplementary to Section 43, Section 45 lays down that in the Courts so established, the rules which are observed in the execution of decrees in Courts in British India shall be followed. Section 44 deals with decrees of what are known as favoured Native States. That Section provides that decrees of the Courts of any Native Prince or State in alliance with His Majesty may be executed in British India as if they were passed in British India. There is no converse provision that decrees passed in British India can similarly be executed in Courts established by the authority of a Native Prince or State. The absence of such a provision seems to be conclusive upon the question. Further, it is a well-known principle of jurisprudence that no country can legislate for the procedure to be followed in a foreign State. Therefore, it seems to us that the order transmitting the decree for execution is not sanctioned by the Code. There is the positive authority of Kasturchand Gujar v. Parsha Mahar 12 B. 230 : 6 Ind. Dec. (N.S) 639 in favour of this view. The case of Ratan Mahanti v. Khatoo Sahoo 29 C. 400 : 6 C. W. N. 573 also enunciates the same principle. As regards the suggestion that a long practice should not be departed from on a question of procedure, it is enough to say that where want of jurisdiction is established, long practice would not avail. Palmer v. Hutchinson (1881) G. A. C. 619 : 50 L. J. P. C. 62 : 45 L. T. 80 and Rajah of Ramnad v. Seetharam Chetty 26 M. 120.

3. Mr. Krishnaswami Aiyar for the respondent drew our attention to the fact that no appeal was preferred against the order transmitting the decree, for execution, and argued that it is not open to us to question its validity at this stage. We are of opinion that as the order was passed ex parte and was without jurisdiction, the appellant is entitled, when it comes to his notice, to apply to vacate it within the time limited under Article 182 of the Limitation Act. As it relates to the execution of the decree which was sent to Puducottah in November 1915, there is no bar of limitation. See Ajant Singh v. Sundar Matt 16 Ind. Cas. 567 : 17 C. W. N. 862.

4. We must, therefore, hold that the order transmitting the decree was made without jurisdiction and must be set aside. We make no order as to costs.


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