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Bhuban Chandra Sadhukhan Vs. Biswanath Dey - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 39 of 1960
Judge
Reported inAIR1962Cal34,65CWN437
ActsChandernagore (Application of Laws) Order, 1950; ;Transfer of Property Act; ;Registration Act
AppellantBhuban Chandra Sadhukhan
RespondentBiswanath Dey
Appellant AdvocateGanganarayan Chandra, Adv.
Respondent AdvocateAbinash Chandra Bhattacharya, Adv.
DispositionAppeal dismissed
Cases ReferredLewis v. Berrey
Excerpt:
- .....j. 1. this is a second appeal arising out of an objection under section 47 of the code of civil procedure and is on behalf of the judgment-debtor. the objection of the judgment-debtor was that the notarial bond, grosses cony of which was obtained on 30th january, 1952, is not directly executable. the answer of the decree-holder is that it is so executable and the judgment-debtor not having taken the objection in question in an earlier objection under section 47 of the code cannot now raise the objection and it is barred by the doctrine of constructive res judicata. the munsiff held that it was not necessary for him to go into the merits of the objection but he held that this objection was barred by the principle of constructive res judicata. against that there was an appeal. the.....
Judgment:

P. Chatterjee, J.

1. This is a second appeal arising out of an objection under Section 47 of the Code of Civil Procedure and is on behalf of the judgment-debtor. The objection of the Judgment-debtor was that the notarial bond, grosses cony of which was obtained on 30th January, 1952, is not directly executable. The answer of the decree-holder is that it is so executable and the judgment-debtor not having taken the objection in question in an earlier objection under Section 47 of the Code cannot now raise the objection and it is barred by the doctrine of constructive res judicata. The Munsiff held that it was not necessary for him to go into the merits of the objection but he held that this objection was barred by the principle of constructive res judicata. Against that there was an appeal. The Subordinate Judge held that the previous miscellaneous case No. 54/58 was dismissed for default for non-appearance of both Parties on the date of heaing. The learned Judge held that under Order 9, Rule 4 of the Code, if a suit was dismissed for default of both the Parties, there would be no bar to subsequent suit. The learned Subordinate Judge thereafter considered the merits of the objection and came to the conclusion that this objection had no force and the 'grosses copy' could be executed.

2. This second appeal, as stated above, has been filed by the judgment-debtor and as the question of res judicata was held in his favour, Mr. Chandra has referred only to the merits of the case. According to him, as the bond was subsequent to 1st of May, 1950. the grosses copy was not executable as such and only right is a right by suit. Mr. Chandra has referred to a recent decision or Sen and N. K. Sen, JJ., reported in 64 Cal WN 539, between Tulshi Charan Surul v. Kangali Charan Dey. It is indeed true there is an opinion of their Lordships that 'the grosses copies of notarial mortgage deed delivered between May 2, 1950, and October 2, 1954, would only have the force of certified copies of the mortgage bonds, but would not be executable as decrees,' This opinion of their Lordships was directly in conflict with the opinion expressed by, another Division Bench in Sourindra Kumar Saha v. Bibhuti Roy reported in 63 Cal WN 961--a decision of Cuba and Banerji, JJ. Considering the latter decision aforesaid their Lordships (Sen and N, K. Sen, JJ.) observed. 'It is not necessary for us, however, to make a reference to a larger Bench for a decision o the question, because in the present case we are concerned with a grosses copy of notarial mortgage bond which was executed on 5th December, 1947, and delivered on 25th February, 1948.

3. Thus their Lordships' opinion in the matter is an 'obiter' and a direct decision of the Division Bench is still there and holds the field. But the opinion of their Lordships though not binding has very great persuasive value and the learned Advocate for the appellant rightly stated--whether obiter or not, he adopted the reasons for that opinion as a part of his argument, I would, therefore, make an attempt to consider this case in my humble way.

4. The first thing that we have got to refer is to the Chandernagore (Application of Laws) Order of 1950. Under the same, such laws in force in Chandernagore immediately before the commencement of the Order as corresponded to the enactments mentioned in the Schedule to the Order ceased to have effect save as respects things done or omitted to be done before the commencement of the Order. We have to consider what was the effect of the notarial bond, the grosses copy of which is sought to be executed. The date of the bond was later than 2nd May, 1950, the bond was to the effect that if the money would not be paid within a future date, the bond would be executable at once. Therefore, at the date when the bond was executed a right vested in favour of the mortgagee to execute the bond The notarial bond was executed on the 30th January, 1952, and according to French law a 'grosses copy' of it could then be executed. The rights of a mortgagee are vested rights and are recognised in Indian law by the Transfer of Property Act In Indian, law mortgages are to be created by registered deeds but in French law a notarial deed is sufficient. Neither the Transfer of Property Act nor Registration Act was introduced by Chandernagore (Application of Laws) Order of 1950. Hence, the deed so far as the creation of the mortgage, is not affected by the aforesaid order.

5. The only question is whether ,the provision of Article 20 of the Decret in 1887 to the following effect:-

'They (notarial deeds) are executory in the whole extent in the territory of the Republic etc. .....'

has been affected by the said order of 1950. We have, therefore, to consider whether the aforesaid right under the Decret was a substantive right or a mere matter of procedure. In Colonial Sugar Refining Co. v. Irving, (1905) AC 369, a right to appeal where it exists has been considered to be a substantive right. This substantive right is created by statute. This right has been described as 'This right of entering a superior Court and invoking its aid and interposition to redress the error of the Cout below. It seems absurd to denominate this paramount right as part of practice of the inferior tribunal (Attorney General v. Sillem, (1864) 10 HL Cas 704).' Article 20 aforesaid provided not the procedure for execution but the right to execute. In such cases this right is a right to sell the mortgaged property without filing a suit. This right is different from the method to be followed in order to execute the same. Hence substantive right is granted by Art. 20. The Code of Civil Procedure does not contain any provision by which similar substantive right to have such an instrument has been conferred. The Code deals with the procedure to enforce the right of a mortgagee i. e. how to obtain a decree, how it is to be executed. His right to sell is in the Transfer of Property Act not in the Code of Civil Procedure.

6. It is indeed true that the substantive right to appeal is sometimes provided in the statute relating to procedure. That does not make it a procedural matter. Similarly a right to execute an instrument as if it were a decree may be found in a procedural code but that does not make it any tile less a substantive right. Article 20 recognised a substantive right to have a notarial bond, a grosses copy of which would be executable.

7. Notarial deeds are not unknown in India. We have recently a Notarial Act of 1952. But before that the Negotiable Instruments Act provided for Notaries Public. But they never had in India the same powers as they had under the French law.

8. Our law also recognises instruments which are not decrees under the Code of Civil Procedure but yet executable. The certificates issued by the Collector under the Public Demands Recovery Act are instruments signed by a Revenue Officer but still executable. An Income-tax Officer is also authorised to issue certificates. Similarly, under French law Notaries are empowered to issue 'grosses copies' of Bonds which become executable at once.

9. The Civil Procedure Code does not affect the right of the parties to have a notarial deed nor does it affect the power of a Notary to deliver 'grosses copies' of it. By Article 20 these deeds can be executed. If executed these are the incidents of a notarial deed under the French law. There is nothing in the Code of Civil Procedure which corresponds to such Powers of a Notary or notarial deed and hence the question of incidence of such a deed is beyond the scope of the Code of Civil Procedure.

10. It is indeed true that the Civil Procedure Code provides for instruments which are executable; they are decrees; so does the Public Demands Recovery Act, there the executable instruments are the certificates and according to French law the grosses copy of notarial bond is a third such executable instrument.

11. According to the provisions of the order neither the French law nor the French Code of Procedure was entirely repealed but only so much of it ceased to be in force as did correspond to the statutes stated in the schedule or subsequently added to the schedule. I have stated above, there is no corresponding provisions in the Civil Procedure Code to the process of notarial bond together with a grosses copy. Hence, the power of a Notary to issue such a bond remains; if so incidence of a delivery of a grosses copy of the notarial bond also remains.

12. As there in no express repeal the question would come as to whether there would be repeal by necessary intendment or, in other words, whether there would be an implied repeal. The ordinary presumption is against the implied repeal. 'Repeal by implication is not favoured and such interpretation is not to be adopted unless it is inevitable. Any reasonable construction which offers an escape from it is more likely to be consistent with the real intention', (Maxwell, 9th Edition, page 173--Lewis v. Berrey, 1936 Ch 274, atP. 279).

13. The law has always recognised parallel statutes. Parallel Acts are not necessarily inconsistent. The Court delivers an instrument called 'decree' which is executable under the Code of Civil Procedure. The Collector issues another instrument called certificate which is also executable. The Notary Public delivers a 'grosses copy' of a notarial bond which is an executable instrument. The Court derives its power to deliver a decree from the Code of Civil Procedure. The Collector gets similar powers under the Public Demands Recovery Act. A Notary delivers a grpsses copy, under Article 20 of the Decret which continued to be law in Chandernagore in 1950, subsequently affirmed by Section 8 of Chandernagore Regulation of 1952. These are all parallel Acts which empower persons or bodies to deliver executable instruments. It is only when 'there are inconsistencies between the Code of Civil Procedure and the French, Code that the Code of Civil Procedure would operate after May 2, 1950, in Chandernagore.

14. In this view of the matter, I must overrule the objection of the judgment-debtor.

15. Mr. Chandra on behalf of the judgment-debtor stated that he is entitled to relief under Section 36 of the Bengal Money Lenders Act. This is not an application for relief under that Act. If that is made the question would be whether the notarial bond, a grosses copy of which was sought to be executed, could be re-opened under Section 36 of the Bengal Money Lenders Act. All that I need say that no application for re-opening the same has now been made and, if that is made, that will be yet another complicated matter to be considered by the Court, But, as no such application has now been made, I refrain from expressing my Opinion at this stage.

16. The result is that the appeal is dismissed.

17. There will be no order for costs so far asthis Court is concerned.


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