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Ganguli Engineering Ltd. Vs. Sm. Sushila Bala Dasi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 58 of 1954
Judge
Reported inAIR1957Cal103,60CWN289
ActsCode of Civil Procedure (CPC) , 1908 - Section 13; ;Debt Law; ;Bengal Agricultural Debtors Act, 1935 - Section 1(2); ;Indian Independence (Legal Proceedings) Order, 1947; ;Limitation Act, 1908 - Schedule - Article 182; ;Bengal, Agra and Assam Civil Courts Act, 1887 - Section 3
AppellantGanguli Engineering Ltd.
RespondentSm. Sushila Bala Dasi and anr.
Appellant AdvocateSyama Charan Mitter, Adv.
Respondent AdvocateBinayak Nath Benerji and ;Manas Nath Roy, Advs.
DispositionAppeal allowed
Cases ReferredSm. Kristo Kamini Debi v. Girish Chandra Mordal
Excerpt:
- .....34, bengal agricultural debtors act on 28-8-1944, the debtor having made an application before the debt settlement board at jhenidah in the district of jessore for settlement of the debt comprising the decretal amount. the money execution ease was still stayed under section 34 of the bengal agricultural debtors act on the date of the partition, namely, 15-8-1947. after the partition the special officer, debt conciliation board at jhenidah who had taken the charge of the cases before the debt settlement board made an award under section 19(1)(a) bengal agricultural debtors act by which the debt was determined at rs. 10562/7/- and this amount was made payable in 11 annual instalments, the first ten instalments being of rs. 1000/- each and the last instalment being rs. 562/7/-, the first.....
Judgment:

Sen, J.

1. This is an appeal from ex , parte order passed by Sri G. S. Chatterjee, Subordinate Judge, 6th Court, 24-Parganas allowing an objection under Section 47 of the- Code of Civil Procedure and dismissing Money .Execution Case No. 1 of 1953 as not maintainable. The facts are briefly as follows. The appellant Ganguly Engineering Ltd. obtained a money decree for Rs. 10462 7/- including costs in Money Suit No. 1 of 1940 of the 2nd Additional Court of Subordinate Judge, Alipore. The decree was obtained on 31-5-1941 and after obtaining the decree the appellant started Money Execution Case No. 10 of 1941. This execution case was stayed under Section 34, Bengal Agricultural Debtors Act on 28-8-1944, the debtor having made an application before the Debt Settlement Board at Jhenidah in the district of Jessore for settlement of the debt comprising the decretal amount. The money execution ease was still stayed under Section 34 of the Bengal Agricultural Debtors Act on the date of the partition, namely, 15-8-1947. After the partition the Special Officer, Debt Conciliation Board at Jhenidah who had taken the charge of the cases before the Debt Settlement Board made an award under Section 19(1)(a) Bengal Agricultural Debtors Act by which the debt was determined at Rs. 10562/7/- and this amount was made payable in 11 annual instalments, the first ten instalments being of Rs. 1000/- each and the last instalment being Rs. 562/7/-, the first instalment being payable in Chaitra, 1355 B. S. This settlement was made on 3-12-1949 and the settlement was communicated by an intimation to the Subordinate Judge's Court at Alipor'e where the Money Execution Case No. 10 of 1941 was pending, and on 6-1-1950 the Subordinate Judge then in charge of the court recorded an order referring to the intimation received from the Debt Settlement Board, Jhenidah, that the debt had been settled and noting that the execution case had abated. Thereafter, on 4-4-1952 the present appellant filed an application for setting aside the order of abatement, but' ultimately the appellant did not press the application to a hearing, but he filed a petition for withdrawing the same with leave to file a fresh execution petition. The learned Subordinate Judge on 5-1-1953 passed an order permitting the decree-holder to withdraw the petition filed on 4-4-1952 at his own risk, after pointing out that O. 23 R. 1 of the Code of Civil Procedure had no application to the present case. On the same date, that is, 5-1-1953 the present execution case was started. As soon as notices under Order 21, Rule 22 C. P. C. had been served on the judgment-debtors, Sm. Sushila Bala Dasi and another, they appeared and filed an objection under Section 47 of the Code of Civil Procedure objecting that the execution case could not proceed in view of the fact that the Money Execution case had abated and the decree had become merged in the award of the Jhenidah Debt Settlement Board. The objection was fixed for hearing on 25-7-1953. On that date the decree-holder appellant filed an application for time, but the application for time was rejected and thereafter the objection under Section 47 filed by the judgment-debtors was decided ex parte. The learned Subordinate Judge decided that in view of the award of the Debt Settlement Board and in view of the fact that the previous execution case had abated no fresh execution case was maintainable. The Money Execution Case No. 1 of 1953 was thereupon , dismissed as not maintainable. Against this ex parte order the decree-holder has filed the present appeal.

2. It is contended on behalf of the decree-holder appellant that after the partition of India and the creation of two dominions, the award of a Board or a Special Officer in Pakistan could no longer be taken notice of by an Indian Court and therefore the order passed on 6-1-1950 that the first execution case had abated was an order made without jurisdiction and therefore Void, and there was nothing therefore to bar the present execution case, namely, Money Execution Case No. 1 of 1953. The question for decision, therefore, is whether any execution case can proceed in respect of the decree which the appellant obtained on the 31st of May, 1951 in spite of the award made by the Debt Settlement Board, Jhenidah,

3. The general principle of law is that any decision by a foreign Court or . Tribunal or a foreign quasi-judicial functionary is not enforcelable in a country unless such decree or decision is embodied in a decree of the court of that con try. In other words, ordinarily no decree or I order of adjudication by a Pakistan authority Would be binding in India unless such decree or order of adjudication is given additional I force by a decree obtained in India by the interested party. Mr. Banerjee appearing for the respondents has urged that once a proceeding had started before a court or a Tribunal or any proceedings would go on in spite of the fact that the country had been divided and that the court or functionary is now in a foreign 'state. This, however, is contrary to the accepted principle of international law. A reference to the adaptations made in the Bengal Agricultural Debtors Act would also show that the law provides that the courts in India are to take notice of decrees and awards of the Debt Settlement Boards or Special Officers having powers of the Debt Settlement Board when they are situated in Indian territory. Section 18(3) of the Indian Independence Act, 1947 made the provision that

'the law' of British India and of the several parts thereof 'existing immediately before the appointed, day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority haying power in that behalf.' Some adaptations were made and orders were issued by the Governor General to amplify the provisions of Section 18 (3) of the Indian Independence Act, such orders being issued under Section 9, Indian Independence Act. Thus reference may be made to Adaptation of Existing Laws Order, 1947 which was an order made by the Governor General in exercise of the powers conferred on him by Section 9 (1) of the Indian Independence Act. Paragraph 4 of that order runs as follows :

''(1) Where an existing Indian Law contains a provision defining to the territories which are within the scope of that provision, that provision shall be so adapted as to exclude any territories which on the appointed day are not to form part of the territories of the Dominion of India.

(2) Without prejudice to the general effect of the preceding paragraph, references in any existing Indian law to 'the whole of British India' (or ''British India'), to, 'Bengal' and to 'the Punjab' shall, except' where the reference occurs in a title or preamble or any citation or description of an Act, Ordinance or Regulation and except where the context otherwise requires, be replaced by references to 'all the Provinces of India', to 'West Bengal' and to 'East Punjab', respectively'.

By the Adaptation of Bengal and Punjab Acts Order, 1948 which was also an order passed by the Governor General under the powers conferred on him under Section 9 (1) of the Indian Independence Act, it was similarly provided in paragraph 3 (2) of that order that wherever the expression 'Bengal' occurs in a Bengal Act otherwise than in a title or preamble or in a citation or description of an enactment or in certain specified terms like the Lieutenant-Governor of Bengal, then there shall be substituted for the expression 'Bengal' the expression 'West Bengal'. Thus as soon as two Dominions were created, the Bengal Agricultural Debtors Act, 1935 which by section 1 (2) of that Act was applicable to the whole of Bengal, became applicable as an Indian Law to the whole of West Bengal only. It is true that with corresponding adaptation, the Bengal Agricultural Debtors Act, 1935 was also made the law in East Bengal which is 'a part of Pakistan, but the courts of India are to be guided by the Bengal Agricultural Debtors Act, 1935 as to India because that is the existing law of India and the courts of India cannot be guided by what is the law in another foreign country or Dominion like Pakistan. In Section 3, Bengal Agricultural Debtors Act there is a reference to the Government of the Province setting up Debt Settlement Boards for adjudication of debts within the area to which the Act applies. After the Partition therefore this power must relate to the appointment of Boards- in the area of West Bengal only. Similarly where Section 34 of the Bengal Agricultural Debtors Act refers to a suit or proceeding abating on receipt of intimation that the Debt Settlement Board or the Special Officer has settled a debt included in the subject matter of the suit or proceeding. It must be understood that a Court In West Bengal shall take action on the intimation and pass order, as to abatement of the suit or proceeding only when the Board or the Special Officer is situated or is functioning in West Bengal. Certain -judicial proceedings were no doubt saved by the Indian independence (Legal Proceedings) Order, 1947. Paragraph 3 of that Order refers to proceedings pending in certain Special Tribunals which 'are described in the schedule of that Order. We are not concerned with them. Paragraph 4 of the Order refers to all proceedings pending immediately before the appointed day in any Civil or criminal court other than a High Court in the Province of Bengal, Punjab or Assam, and the provision is that such proceedings shall be continued in that court as if the Indian Independence Act had not been passed and that court shall continue to have for the purposes of the said proceedings all the jurisdiction and power which it had immediately before the appointed day. Paragraph 4 (3) provides that effect shall be given within the territories of either of the two Dominions to any judgment, decree, order or sentence of any such court in the said proceedings, as if it had been passed by a court of competent jurisdiction within that Dominion. If the Debt Settlement Board or the Special Officer exercising the functions of a Debt Settlement Board could be regarded as included in the term 'any civil or criminal court other than a High Court' as referred to in paragraph 4 of the Order, then the proceedings before the Jhenidah Board or the Special Officer could be saved and under sub-paragraph 3 of paragraph 4 effect would be given to the order or award of such Board or Special Officer even by a Court of India. But clearly 'the term 'civil or criminal court other than a High Court', cannot include a Debt Settlement Board. What is a civil court is not defined in the Indian Independence Act or in the Legal Proceedings Order. Paragraph 2 (2) of the Order provides that the Interpretation Act, 1889 shall apply for the interpretation of an Act of Parliament, but the Interpretation Act, 1889 does not define a civil court. It defines the courts in England like the Supreme Court, Court of Appeal, High Court, Court of Assize, Court of Summary Jurisdiction, Petty Sessional Court, Court of Quarter Sessions and so on; but there is no definition of the general terms 'civil court' and 'criminal court'. Accordingly from the Interpretation Act, 1889, we cannot get any guidance as to the -proper meaning of the terms civil court or criminal court as used in paragraph 4 of the Order. Accordingly, the ordinary meaning of the terms must be accepted and a civil court must be taken to mean a civil court under the Bengal, Agra and Assam Civil Courts Act so far as Bengal and Assam are concerned. In fact, in the Bengal Agricultural Debtors Act a distinction is drawn between civil courts and the Debt Settlement Boards, and Section 2, Clause 6 (a) defines a civil court as meaning a civil court within the meaning of the Bengal,' Agra and Assam Civil Courts Act, 1887 and including any court exercising appellate or revisional jurisdiction over any such court. We are not in this case concerned with the High Court as High Court Is specifically excluded by paragraph 4 of the Legal Proceedings Order. Therefore, for the purpose of this case a civil court as referred to in paragraph 4 of the Legal Proceedings Order can only mean a civil court set up under the Bengal, Agra and Assam Civil Courts Act, 1887 and not a Debt Settlement Board,

4. Mr. Banerjee appearing on behalf of the respondents has urged that in the absence of a definition we should give a wide meaning to the term civil court and any Tribunal or functionary exercising 'judicial functions and, adjudicating disputes not 'relating to crimes should be taken to be a civil court. He has urged that the Debt Settlement Board or the Special Officer also adjudicates disputes as to the existence of debts and as to the manner of its satisfaction and they should be taken to be civil courts within the meaning of paragraph 4 of the Legal Proceedings Order. But in view of the context in which the term civil court or criminal court Is used in paragraph 4 we do not think, that this extended meaning can be given to the civil court as used in paragraph 4 of the Legal Proceedings Order. That being so, it is clear that the respondents cannot take advantage of sub-paragraph. 3 of paragraph 4, and therefore the civil court at Alipore could not take any notice of the intimation which was received from the Special Officer, Jhenidah exercising powers of the Debt Settlement Board, that the debt in question, namely, the decretal amount had been included in an award, and could not therefore pass an order as to abatement. The appellant took part in the proceedings before the Jhenidah Debt Settlement Board or the Special Officer even after the partition and the final order appears to have been passed under Section 19 (1) (a) of the Bengal Agricultural Debtors Act, that is, with the consent, express or implied, of the appellant, but the award as such of the Debt Settlement Board or the Special Officer cannot be taken notice of by the court at Alipore. As already stated, only if the award was reinforced by a decree of a court in West Bengal, the court would be bound to take notice of it, but without such a decree of a West Bengal court reinforcing such an award; the award must be deemed to be non-existent so far as the courts in West Bengal are concerned. It would, therefore, appear that, the order passed on 6-1-1950 that the execution case do abate in view of the intimation of the Special Offices, Jhenidah was an order made without jurisdiction, the executing court having lost sight of the fact that the intimation had been received from a Board in Pakistan and that an award of a Pakistan court was no longer binding after the Partition.

5. Mr. Banerjee has urged that even conceding that the original order dated 6-1-1950, that the execution case do abate, was passed without jurisdiction, the appellant would still be bound by the order of the learned Subordinate Judge passed on 5-1-1953 when the decree-holder on his own application was permitted to withdraw his petition filed on 4-4-1952 for setting aside the abatement and permission to file a fresh execution petition was by implication refused. If, however, a fresh execution case is maintainable under the law, there was no need to ask for leave to file a fresh execution case and therefore the fact that the learned Subordinate Judge on 5-1-1953 did not give such permission to file a fresh execution petition could not stand in the 'way of the appellant filing a fresh execution case. Moreover, we do not see how the order of the court permitting the application for setting aside the order of abatement to be withdrawn, could give validity to the order of abatement if the order of abatement of the execution, case was originally without jurisdiction.

6. We must therefore hold that there is no bar to the execution case being continued and the objection under Section 47 of the Code of Civil Procedure must fail. This appeal therefore, from the order allowing the objection under Section 47 is allowed, and that order allowing the objection under Section 47 is set' aside and the objection under Section 47 is dismissed.

7. Mr. Banerjee has contended that if the order passed on - 6-1-1950 in respect of the abatement of the first execution case be without jurisdiction, and if the order passed on 5-1-1953 is also of no effect in. validating such order of abatement, then the original execution case must still be deemed to be undisposed of and in that case the second execution case cannot proceed. In such circumstances, however, the second execution case can be treated as a continuation of the last one. Authority for this proposition may be found in the case of Sm. Kristo Kamini Debi v. Girish Chandra Mordal, 39 Cal WN 1030 (A) where it was observed 'as follows :

'It is well established that an application for execution of a decree may be treated as one in continuation or for revival of a previous application for execution, similar in scope and character, the consideration of which had been interrupted by objections and claims subsequently proved to be groundless or had been suspended by reason of an injunction or like obstruction'.

The present execution case may therefore proceed being treated as a continuation of the first execution case.

8. The appeal is accordingly allowed.

9. The appellant will get his costs in this appeal, the hearing fee being assessed at two gold mohurs.

Guha Ray, J.

10. I agree.


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