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Mahalakshmi Vs. P.S Rajeswari Alias Santha Bai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1979)2MLJ192
AppellantMahalakshmi
RespondentP.S Rajeswari Alias Santha Bai
Cases ReferredNandu v. Facinto. A.I.R.
Excerpt:
- .....in the law applicable in pondicherry as on date. e.a. no. 694 of 1977 was filed under section 151. civil procedure code, by the judgment-debtor for dismissing the execution petition on the ground that a mortgage deed was executed on 27th january, 1965 by one muthukrishnan for rs. 35,000 and the said muthukrishnan died in 1969, and the legal representatives are now being proceeded against for recovery of the mortgage amount. under article 2217 of french code (civil), no attachment can be effected without serving a commandment and the requirements prescribed under french law had not been complied with. entire debt was incurred for immoral activities and in particular muthukrishnan was a drunkard and therefore the legal representatives are not liable to pay the debt.2. this petition was.....
Judgment:
ORDER

T. Sathiadev, J.

1. This revision is filed against an order made in E.A. No. 694 of 1977 in E.P. No. 200 of 1977 on the file of the First Additional Sub-Judge, Pondicherry. The Court below held that the execution taken in respect of the mortgage deed dated 27th January, 1965 executed by Muthukrishnan can be proceeded with even though there has been a change in the law applicable in Pondicherry as on date. E.A. No. 694 of 1977 was filed under Section 151. Civil Procedure Code, by the judgment-debtor for dismissing the execution petition on the ground that a mortgage deed was executed on 27th January, 1965 by one Muthukrishnan for Rs. 35,000 and the said Muthukrishnan died in 1969, and the legal representatives are now being proceeded against for recovery of the mortgage amount. Under Article 2217 of French Code (Civil), no attachment can be effected without serving a commandment and the requirements prescribed under French Law had not been complied with. Entire debt was incurred for immoral activities and in particular Muthukrishnan was a drunkard and therefore the legal representatives are not liable to pay the debt.

2. This petition was opposed by the decree-holder claiming that, amount was borrowed by Muthukrishnan for lawful purposes and under the French law, as was in force at the time of the mortgage deed, it automatically becomes an executable decree, and in fact, to satisfy the amount due under the mortgage deed decree two payments were received by the mortgagee, the first of which was on 31st March, 1967 a sum of Rs. 3,033 and on 3rd April, 1969 a sum of Rs. 5, 000. There is no proof that the debt was incurred for any immoral purposes. A commandment was issued on 16th October, 1968, and it had been duly served on petitioner herein, and therefore the present proceedings taken to recover the amounts in execution is valid.

3. As stated earlier, the Court below held that a commandment bad been already issued on 16th October, 1968 and the mortgage deed under the French Law, as was in force, became a decree that can be directly executed and hence all the objections taken by the petitioner deserved to be rejected, and consequently rejected the petition, and ordered the settlement of proclamation for sale of the property.

4. Mr. Raghavan, counsel for petitioner contends that after the passing of Central Act (XXVI of 1968 The Pondicherry. (Extension of Laws) Act, 1968)(hereinafter to be referred to as the Act), the concept of a mortgage automatically treated as an executable decree had disappeared, and respondents herein can recover the mortgage amount only by filing a civil suit, by obtaining a preliminary decree and thereafter a final decree, and only then, according to the decree, execution can be taken as against the petitioner. He relies upon Section 45-A being introduced in the Civil Procedure Code by virtue of Act XXVI of 1968, to substantiate his contention that when a specific provision has been made as to what could be a decree, respondents cannot any longer rely upon the intendment found in the repealed French Law. As far as commandment issued on 16th October, 1968 is concerned, it is claimed that no such commandment could have been issued after the applicability of the Civil Procedure Code, in Pondicherry and what is relied upon is not a valid commandment at all. No doubt in the memorandum of grounds, it has been stated that the mortgagee having taken proceedings under the French Law, cannot seek relief under the Indian Law. But the main contention taken in the civil revision petition is whether mortgage dated 27th January, 1965, can be treated as a decree under the French Law, which can straightaway be executed under the Civil Procedure Code, which has been made applicable after the passing of the Act.

5. Mr. Bhavananthan, counsel for respondents contends that under Section 4 of Act XXVI of 1968, in spite of repealing of earlier enactments made under French Law, Section 4(2) saves the rights and privileges acquired under the repealed laws including remedies provided therein and therefore even after the Civil Procedure Code was made applicable in Pondicherry, the substantial right already acquired under the mortgage deeds, which in law are to be treated as decrees, cannot be taken away, that Section 45-A in Civil Procedure Code, has not substituted or replaced the other provisions which would continue to be applicable and that therefore execution can be taken straightaway under the Civil Procedure Code, treating the mortgage debt dated 27th January, 1965 as a decree. Even if there are any infirmities regarding the issue of commandment, since the French Code (Civil) had been repealed, execution can be straightaway taken by invoking provisions of the Civil Procedure Code.

6. Counsel appearing on both the sides have referred to the following decisions which will have bearing on the point involved in this revision petition. First of the decisions relied upon is Tulsi Charan v. Kangali Charan 64 C.W.N. 539 wherein the question arose as to whether grosses copies of notarial mortgage bonds in executor forms are executable as decrees under Civil Procedure Code, and whether execution can be proceeded with straightaway on the presumption that there has been an enforceable and executable decree. When a similar situation arose after the integration of Chandranagore, initially de facto and later on de jure with the State of West Bengal, and to which area provisions of Civil Procedure Code, were made applicable, it was held, under French Law a grosses copy of a notarial mortgage deed is a decree; and this right having been preserved it can be put into execution under Civil Procedure Code. It was contended in that the grosses copy of a notarial mortgage bond (hereinafter to be referred to as the 'mortgage bond') is not a decree within the meaning of the provisions of Civil Procedure Code, and the only recourse to a mortgage is to file a suit in enforce the mortgagee, obtain a preliminary decree and a final decree and only thereafter proceed to sell the mortgaged property in case a decree is secured. Similar extension orders and merger Acts were made in respect of Chandranagore and the rights acquired under French Law were preserved in certain respects. It was not disputed that a mortgage bond of the nature contemplated under French Law, was in law considered as a decree of a competent Court. There was no requirement of filing a suit on the mortgage bond, obtain a decree in a civil Court functioning under French Laws and thereafter go in for execution. The Division Bench referred to earlier judgments of the Calcutta High Court and held that a grosses copy of a notarial mortgage deed should be executed as a decree. It was also held therein that the French Laws of Chandranagore were replaced by the laws in force in the rest of India after 2nd May, 1950, and the procedure by which a notary working under the decree of 1887 could grant a grosses copy in executory form ceased to be effective, but it would not mean that Order 34, Civil Procedure Code, cannot be invoked on the basis that it is not a decree. It was also held in the said decision that in relation to the Civil Procedure Code, the corresponding law would mean, not merely the French Civil Procedure Code, but the decree of 1887, in so far as it had authorised that mortgage bond in executory form can be proceeded with in execution. Therefore it was held therein that in spite of the Civil Procedure Code, having been made applicable to Chandranagore after 2nd May, 1950, the mortgage bonds of earlier origin 'had the force of a decree and that right was not taken away by the enactments by which the French Laws were gradually replaced by the Indian laws in Chandranagore. Therefore we agree with the findings of the Court below that the grosses copy of the notarial mortgage bond in favour of the creditor can be put into execution by him without the creditor having to file in the first instance, a mortgage suit.

7. The next decision is Krishna Ch. Santra v. Tarak Dassi, 75 C.W.N. 148 wherein also a division bench held that even after the merger of French territories of Chandranagore with the Union of India, the position is that the decrees remained valid decrees, as if they were passed by Indian Courts, and the rights and remedies of the holders of notarial deeds were not lost. This was a case where the suit was based not on the original consideration, but for recovery of decretal dues with interest, on the basis of assignment deeds, but they also bore the character of notarial deeds. In this decision reference was made to Articles 146 and 545 of French Civil Procedure Code relating to execution of grosses copies of notarial deeds and to what extent they can be treated as decrees under the French Law. It has been held therein as follows:

The uniform opinion of this Court is as revealed in these decisions that even after the Code of Civil Procedure of India came into operation in Chandranagore, the right and remedy of the holder of notarial deeds were not lost, with the consequence that the grosses copies of the notarial deeds could be enforced by execution under the corresponding provision of the Indian Code of execution of the grosses copies having the force of a decree.

8. A full bench of Calcutta High Court in Susama Bala v. Bibhuti Bhusan : AIR1973Cal295 while dealing with this problem, held that, grosses copy can be executed under the Indian Law without filing a suit, and such a right, being a substantive right, and not a procedural one, has been preserved under Indian Law, and it is not inconsistent with the provisions of Civil Procedure Code. Reference was made to Article 545 of French Civil Procedure Code which required a notary under the French law to deliver a grosses copy of a mortgage bond, and once filed, it assumes an executory character as a decree' in accordance with the French Laws. It was held:

the right to execute is in our opinion a substantive right like the right of appeal. This right had or has nothing to do with the procedure for execution. The right is the right to have the mortgaged property sold without filing a suit. The said right certainly is not the same as the method or manner or process to be followed in our opinion to execute the said bond.

The Code of Civil Procedure does not contain any provision whereby a similar substantive right i.e., to have such an instrument executed without the necessity of filing a suit has been conferred.'...' Article 20 of the decree of 1887 mentioned above reads as follows;--

They (Notarial Deeds) are executory in the whole extent in the territory of the Republic etc.

The same was or is not inconsistent with the provisions contained in the Code of Civil Procedure and thus was in force on or before the 'appointed day' mentioned in the Regulation of 1952. Such right was continued by Regulation 8 of the Chandranagore (Administration) Regulation of 1952, mentioned above. The said Regulation is set out hereunder:

Save as otherwise expressly provided in this Regulation all laws in force in the free town of Chandranagore immediately before the appointed day shall continue to be in force until repealed or amended by a competent Legislature or authority,

Later on Chandranagore (Merger) Act, 1954 was passed and Section 18 which dealt with repealing is more or less identical to the provisions of Section 4(2) of Act XXVI of 3 968. In view of the safeguards provided under the Merger Act of 1954, it was held by the Full Bench that neither the order of 1950 nor the Regulation of 1952. as we have noted earlier,, did affect any right including such right of a mortgagee, or any privilege, obligation or liability acquired, accrued or incurred prior to 2nd May, 1970, and in this view, it was finally held that the procedure in execution being a part of the adjective law, must be governed by the procedural law prevalent at the time of execution, that is to say, the Civil Procedure Code of 1908, since there is no vested right in procedure and a grosses copy of a notarial mortgage deed being a decree which is a 'substantive right', has been preserved and it is the nature of 'a decree' of a competent Court of law and has the force of such a decree under the French Law and also under Indian Law.

9. Reference was made to the decision rendered in Adaikappu Chetliar v. Ayesha Natchiar : (1975)2MLJ298 which dealt with a notarial mortgage deed and on the question as to whether it could be treated as a decree and the learned Judge observed 'upon this question. In do not wish to pronounce any opinion'. The Full Bench decision of the Calcutta High Court was referred to therein. But ultimately the learned Judge held that even though such a privilege was available to a party, when he files a suit in the ordinary civil Court, on the foot of a notarial mortgage deed, it will be the plain duty of the Court to entertain the suit under Section 9 of the Civil Procedure Code. It was a case wherein the suit filed on the basis of the mortgage deed was resisted on the ground that such a suit is not maintainable and therefore the decree is not a valid one. No doubt reference to Section 4 of Act XXVI of 1968 had been made. But yet it was held that the relief being an alternative one, a suit can be filed on the mortgage deed.

10. Reliance was placed on the judgment of the Division Bench of this Court in Ghousia Begum v. Union Territory, Pondicherry : AIR1975Mad345 , wherein the scope of Section 4(1) of Act XXVI of 1968 came up for consideration and relying upon the decision of the Supreme Court in Advance Insurance Company v. Gurudasmal : [1970]3SCR881 it was held that the provisions of Act XXVI of 1968, as far as possible, must be read with a view to their validity and not to render them invalid.

11. It was a case wherein the question arose whether there should have been a notice under Section 80, Civil Procedure Code, before institution of the suit. The suit was instituted, after the Civil Procedure Code, was made applicable without such a notice and it was contended that having regard to Clause (d) of Sub-section (2) of Section 4 of Act XXVI of 1968, such pre-requisite need not be complied with. The Division Bench held that the issue of a notice being a procedural matter, after the Civil Procedure Code, was made applicable with effect from 24th May, 1968, Section 4(2) cannot be invoked by the appellant therein. (Though in the said judgment it has been repeatedly stated that the Code of Civil Procedure, as in force in the State of Madras on 1st August, 1966 has been made applicable to the Union Territory of Pondicherry with effect from 24th May, 1968, the correct date is 5th September, 1968). The decision rendered in Nandu v. Facinto. A.I.R. 1970 Goa. 143 was referred to, for the limited purpose of showing that unless and until repealed that law comes into force, what every had been the law applicable to the territor which had been merged, and will continue to be enforceable.

12. Before considering the purport of these decisions, it will be necessary to extract Section 4 of Act XXVI of 1968 and the column dealing with Civil Procedure Code in Part II of the schedule to the Act which refers to Section 45-A being inserted.

4. Repeal and saving:(1) Any law in force in Pondicherry or any area thereof corresponding to any Act referred to in Sub-section (1) of Section 3 or any part thereof (except in so far as such law continues to be applicable to Renoncants) shall stand repealed as from the coming into force of such Act in Pondicherry.

(2) Nothing in Sub-section (1) shall affect--(a) the previous operation of any law so repeated or anything duly done or suffered thereunder; or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed;

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty forfeiture or punishment may be imposed as if this Act had not been passed:

Provided that anything done or any action taken (including any appointment or delegation made, notification, instruction or direction issued, form, bye-law or scheme framed, certificate obtained, permit or licence granted, or registration effected under any such law, shall be deemed to have been done or taken under the corresponding provision of the Act extended to Pondicherry by this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act. Part II Schedule:

1908 The Code of Civil Procedure, 1908(1) (2)As in force in the State of Madras on the 1st day of August, 1966.(3)After Section 45, insert:(4)45-A. Execution of decrees, etc., passed or made before the commencement of the Code in Pondicherry. --Any judgment, decree or order passed or made before the commencement of this Code by any civil Court in the Union Territory of Pondicherry shall, for the purpose of execution, be deemed to have been passed or made under this Code:Provided that nothing contained in this section shall be construed as extending the period of limitation to which any proceeding in respect of such judgment, decree or order may be subject.

13. Mr. Raghavan, counsel for petitioner, contends that the decisions of the Calcutta High Court can have no applicability because of the insertion of Section 45-A to Civil Procedure Code. When specific provision has been made as to what are the decrees that can be executed under Civil Procedure Code, it has to be construed that any other form of a decree cannot be executed under the Civil Procedure Code. Section 45-A is in respect of decrees passed and made before the commencement of the Code in Pondicherry and it refers to such decrees made by any civil Court in the Union Territory of Pondicherry being deemed as a decree made under the Code.

14. Section 2(2) of Civil Procedure Code, defines a decree as a formal expression of an adjudication by civil Court which conclusively determines the rights of parties. Hence he contends that a mortgage bond is not a decree which has conclusively determined the rights of parties; nor does it adjudicate the controversies between the parties and hence it is not a decree which can be enforced after 5th September, 1968 under Civil Procedure Code In this case mortgage was executed on 27th January, 1965 and Act XXVI of 1968 came into force on 24th May, 1968. Civil Procedure Code was made applicable by notification with effect from 5th September, 1968 and Transfer of Property Act became applicable on and from 9th January, 1969. H respondent is able to show that she had acquired any right, privilege etc., under any law so repealed under Section 4 of the Act or that any remedy in respect of such right or privilege was available, then by virtue of Section 4(2) she could rely upon rights as having been preserved in their favour. Section 4(2) states that nothing in Sub-section (1) shall affect such rights and privileges and they shall be continued to be in force as if Act XXVI of 1968 had not been passed. When savings provisions have been so conceived of in an enactment to preserve vested and substantial rights, it cannot be lightly brushed aside merely because new laws have been made after repealing the existing enactments. If it had been done, without any qualification or reservation, it can then be contended that the rights under the defunct laws cannot be relied upon for being pursued with under the new laws. It is not necessary for me to dwell at length to find out whether a notarial deed issued under the French law results in a procedural right or a substantive right, in view of the decisions above referred to, and in particular when a Full Bench of the Calcutta High Court has held that such a right is a 'substantive right'.

15. The decision in Adaikappa Chettiar's case : (1975)2MLJ298 (above referred to) does not decide this aspect one way or other, but simply holds that the plaintiff can share with the other Indian citizens the right to file the suit on the mortgage deed without enforcing it as if it were a decree under the French law.

16. The mortgage deed was created on 27th January, 1965 and the Civil Procedure Code was made applicable to the Pondicherry Union Territory only on 5th September, 1968. The said mortgage was in a notarial form and this is not in dispute. Act XXVI of 1968 was published only on 24th May, 1968. Therefore on the date when the mortgage was created, under the French law then in force, it had already become an executable decree, and this was consequent to what was provided in Article 20 of the decrete 1887. The mere fact that Civil Procedure Code had replaced French Civil Procedure would not mean that the rights and privileges already acquired and continued to be in force as on 24th May, 1968 had been totally lost. The right acquired by respondents being a 'substantive right' and not a procedural right, cannot be replaced by the Civil Procedure Code. Such a 'substantive right' having been preserved under Section 4(2)(a) and (d) as if 'the Act' had not been passed, the petitioner herein cannot contend that there is no valid decree in force to be pursued with in execution under Civil Procedure Code. Even the Division Bench of this Court in Ghousia Begum's case A.I.R. 1975 Mad 345 only dealt with a ''procedural' matter and not about a substantive right or vested right. It is only in that view, the Division Bench held that when the procedural law had been replaced by the Civil Procedure Code, and when there can be no vested right in procedure, the parties are bound to abide by the available procedure on the date when rights are sought to be enforced. Therefore the mortgage deed having come into existence before 2nd June, 1968 it has already acquired the character of an executable decree, and it will have to be treated as if it is a decree that has been made under Civil Procedure Code.

17. On the aspect as to whether it can be equated to a decree under Civil Procedure Code, Mr. Raghavan, refers to the definition of 'decree' under Section 2(2), Civil Procedure Code, and also to Section 45-A which has been inserted by Act XXVI of 1968. He would state that when Indian laws were extended to the area of Chandranagore, no corresponding provision to Section 45-A was incorporated, and even on the definition of 'decree' in Civil Procedure Code, the mortgage bond cannot be a decree and therefore the execution Court can never entertain it.

18. Section 45-A has been inserted as part of the other provisions of Civil Procedure Code and it has not resulted in modification or deletion of any existing provisions. The plea that when a special provision has been made in respect of decrees in Pondicherry, passed or made before the commencement of the Code, would mean that other provisions in the Civil Procedure Code will not be applicable and hence, no provision having been made for the deemed decrees of notarial deeds, the respondent herein cannot maintain the execution petition, cannot be accepted for the following reasons.

19. Section 45-A is an additional provision and it does not stand in the way of the other provisions relating to decrees in the Civil Procedure Code being invoked. The decisions rendered by the Calcutta High Court about the executable nature of mortgage bonds are to the effect that they being decrees, they will come within the scope of decree as defined in the Civil Procedure Code and the further proceedings to be taken being of procedural nature, such decrees can be executed by invoking the Civil Procedure Code. A Full Bench of five Judges of the Calcutta High Court had held that a grosses copy of a notarial mortgage bond is in the nature of a decree of a competent Court of law and has the force of such decree under the French law and also under the Indian Law. Bereft of a similar provision having been made for Chandranagore as is made under Section 45-A for Pondicherry, it has been held that such a mortgage bond will be a decree, under Section 2(2) of the Civil Procedure Code, and can be executed straightaway. Thus, whether Section 45-A in any manner alters this situation, is the question that remains to be considered. It refers to decrees passed or made by any civil Court in Pondicherry and it does not deal with grosses copies of notarial mortgage deeds, which are decrees. Section 4(2)(a) and (d) of Act XXVI of 1968 has saved the 'substantive right' acquired under the French law, to the effect that a mortgage bond becomes an executable decree, and such a right can be enforced as if the said Act had not been passed. Being a decree, Section 45-A having not substituted any other provisions of the Civil Procedure Code they would be very much available for the enforcement of such a decree. Merely because Section 45-A deals with decrees passed by civil Courts in Pondicherry, it cannot be contended that a notarial mortgage decree being outside Section 45-A it is not valid after the Civil Procedure Code was introduced on 5th September, 1968. When Act XXVI of 1968 was made, if only an explanation had been added to deal with the cases of notarial deed decrees to be deemed as decrees, it could have solved the difficulties experienced by persons who have acquired 'substantive rights' under the law which was in force before 24th May, 1968, and which was preserved under Section 4(2) of the Act.

20. The contention of Mr. Raghavan that since a special provision has been made, it excludes the applicability of the other provisions relating to decrees under Civil Procedure Code, cannot be accepted because Section 45-A is confined only to a particular category of decrees being decrees passed or made by any civil Court in Pondicherry. In view of the saving provision found in Section 4(2) of the Act, in spite of Section 45-A it will be open to such a decree-holder to move the executing Court under the present provisions of the Civil Procedure Code, because what follows such a decree are only procedural aspects, and no one can claim a vested right to a particular procedure, and in this view, the respondent can seek the relief, according to the law in force a t the time when she seeks the execution of the grosses copy of notarial mortgage deed executed when French Laws were in force.

21. On the aspect of irregularity or otherwise of the commandment, it does not arise for consideration and whatever had been done will be irrelevant, because the commandment made on 16th October, 1968 was well after the enforcement of Civil Procedure Code which came into force on 5th September, 1968 itself. The issue of commandment and other steps being procedural aspects, they cannot any longer be valid and execution will have to be proceeded only according to the provisions of Civil Procedure Code. Hence the aspect of liability to pay interest only for five years, has to be considered and the amount to be recovered requires fixation. Though on different grounds, the Court below came to the conclusion that the grosses copy of mortgage bond can be executed straightaway as a decree, in view of the reasons above stated, it is well open to the respondent to proceed with the execution by invoking the provisions of the Civil Procedure Code. Therefore this civil revision petition is dismissed. No costs.


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