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Manmatha Nath Sen Vs. Gopee Ballav Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberExtra Ordinary Suit No. 4 of 1935
Judge
Reported inAIR1951Cal170
ActsLimitation Act, 1908 - Schedule - Article 183; ;Code of Civil Procedure (CPC) , 1908 - Section 24
AppellantManmatha Nath Sen
RespondentGopee Ballav Sen and ors.
Appellant AdvocateSambhu N. Banerjee and ;H.N. Sanyal, Advs.
Respondent AdvocateP.B. Mukherjee, Adv.
DispositionApplication dismissed
Cases ReferredGhaitam Sagormull v. Hardwari Mull and Co.
Excerpt:
- das, j.1. the material facts leading up to the present application may be shortly stated as follows: one kumar jamini ballav sen, a wealthy zamindar and proprietor of what is commonly known as the dimla raj estate, died an or about the 19th july 1929 leaving him surviving his widow sm provabati (deft. no. 4) 4 sons gopee ballav (deft. no. 1), jyotish (deft. no. 2), rukmini (deft. no. 3) and the plaintiff manmatha and a daughter sm. sushilabala (deft. no. 5). on the 18th october 1934, manmatha the youngest son filed a suit in the alipore court, against his mother and three brothers for partition of the properties left by his father. by an order made by this court on the 20th january 1935 that alipore suit was, with the consent of all parties transferred to this court. the petition for.....
Judgment:

Das, J.

1. The material facts leading up to the present application may be shortly stated as follows: One Kumar Jamini Ballav Sen, a wealthy zamindar and proprietor of what is commonly known as the Dimla Raj Estate, died an or about the 19th July 1929 leaving him surviving his widow Sm Provabati (Deft. No. 4) 4 sons Gopee Ballav (Deft. No. 1), Jyotish (Deft. No. 2), Rukmini (Deft. No. 3) and the plaintiff Manmatha and a daughter Sm. Sushilabala (Deft. No. 5). On the 18th October 1934, Manmatha the youngest son filed a suit in the Alipore Court, against his mother and three brothers for partition of the properties left by his father. By an order made by this Court on the 20th January 1935 that Alipore suit was, with the consent of all parties transferred to this Court. The petition for transfer was 'intituled in the matter of the Alipore suit and in the matter of clause 13 of the Letters Patent' The transferred suit has since been mark-ed as extra-ordinary Suit No. 4 of 1936, The late Mr. S. N. Banerjee was by an order made on the same day in the transferred suit appointed as the receiver of the properties in suit and the sole arbitrator to decide all matters in question in the suit including the partition of the joint properties with power to make one or more awards from time to time as he might think fit.

2. On the 1st February 1936 Mr. S. N. Banerjee made an award of and concerning the Ariadah Garden House and the Calcutta properties. By Clause 1 of the award the Ariadah Garden House was declared to belong to the plaintiff and his 9 brothers (Defendants Nos. 1, 2 and 3) absolutely in equal shares to be possessed by them jointly until the same was partitioned. The Calcutta properties valued at Rs. 1 36,757 were partitioned and divided in the manner specified in Clauses 3, 4, 5 and 6 of the award and as shown in the plan thereto annexed and marked 'B'. Clause 3 of the award was expressed in the terms following :

'3. That the premises No. 8/1, Duff Street measuring 2 cottahs 4 chittacks and 24 sq. ft. and the premises No. 9 Duff Street measuring I cottah 8 chittacks and 20 sq. ft. and portion of No. 33 Ram Mohan Shah Lane measuring 4 cottahs 3 chittacks and 18 sq. ft. of the total value of Rs. 21.813 and narked as lot 1 in the said plan marked 'B' and being enclosed in blue borders together with all structures standing thereon is allotted to the plaintiff Manmatna Nath Sen.'

It appears from the plan annexed to the award that all the Calcutta properties so partitioned were contiguous and formed one compact black. Clause 7 of the award which is material for the purposes of the present application was as follows :

'7 That in order to equalise the partition of the said premises I declare and award as follows :

(a) That the defendant Jyotish Chandra Sen do pay to the plaintiff Manmatha Nath Sen the sum of Rs. 6372-4-0 and to the defendant Gopee Ballav Sen the sum of Rs. 214-8-0.

(b) That the defendant Rukmini Ballav Sen do pay to the defendant Gopee Ballav Sen the sum of Rs. 3569-12-0.

(c) That the owelty money shall be paid by such of the parties as are liable to pay the same to the respective payees within six months from the date of the decree to be made hereon. The respective allotments of the allottees who are liable to pay such owelty moneys shall stand charged with the payment of such owelty money and payment of such owelty can be enforced at the end of the said period of six months by execution of the decree to be made hereon without it being necessary to file a separate suit for the said purpose.'

Clause 8 dealt with a common passage and the respective rights and obligations of the parties in respect thereof. Clause 9 directed that each of the allotments should be made within a year from the date of the decree to be made on the award and should remain completely independent of each other without any right of support or easement against each other. Clause 10 provided as follows :

''10. That I further award and direct that each of the said four allottees of the Calcutta properties shall not keep any doors and windows immediately abutting on any other part of the allotments and each of such allottees shall close the existing doors and windows so abutting upon the allotment of any other allottee.'

Clause 11 gave a right of pre-emption in case of sale or lease by any allottee and Clauses 12, 13 and 14 dealt wish the question of the custody of title deeds. It will be noticed that while Clause 7 directed payment of owelty by a named allottee to other named allottee or allottees and Clause 10 directed each allottee to close existing doors and windows abutting upon the allotment of any other allottee there was no direction in Clauses 3, 4, 5 and 6 or any where else in the award directing any allottee to deliver possession to any other allottee of the different allotments made by the award.

3. The award was duly filed in Court and on the 19th March 1936 judgment was pronounced on the award.

4. It appears that at a meeting held by Mr. S. N. Banarjee on the 13th June 1936 a claim was made on behalf of the defendant Gopee Ballav Sen for the delivery of possession of his allotment and to the rents thereof. Mr. S. N. Banerjee is recorded in the minutes of that meeting to have made the following observations :

'Arbitrator--As appears from a copy of the award Mr. Sircar's client is entitled to the properties allotted to him but inasmuch as there is no order on me as receiver to make over possession I cannot give possession of these properties to Mr. Sircar's client. But I am quite prepared to keep a separate account of the income of these properties from the date of the judgment upon award treating realisations upto the date of such judgment and decree as joint. I should suggest that an application should be nude to Court for directions in the matter.'

It does not appear on the materials now before me whether any application for directions was made on behalf of Gopee Ballav.

5. Mr. S. N. Banerjee died on the 4th March 1944 and shortly after his death, to wit, on the 24th March 1944 one Mohendra Nath Bagchi who was the manager under Mr. S. N. Banerjee was appointed interim receiver and on the 6th Jane 1941 Mohendra Nath Bagchi was appointed as the receiver in this suit.

6. On the 13th December 1946 a letter was written on behalf of the plaintiff to the new receiver intimating that possession of the properties allotted to him by the award had not been given and enquiring if the receiver would make over possession of the same. On the 30th December 1946, the receiver replied stating that he had never obtained possession of the properties dealt with by the award and in the circumstances the question of his making over possession of the same did not arise. To the plaintiff's attorney's letter of the 3rd January 1947 the receiver on the 16th January 1947 replied that as far as he was aware Mr. S. N. Banerjee did not obtain possession of the Calcutta properties and that he, the new receiver, was not aware in whose possession the said properties then were. In reply to the plaintiff's attorney's letter dated the 16th January 1947 and the reminder thereto dated the 6th February 1947 the receiver in his letter dated the 10th February 1947 stated that he had been paying the municipal taxes of the Calcutta properties under order of Court made in June 1945 and reiterated that he had never been and was not then in possession of the Calcutta properties. In view of the observations of Mr. S. N. Banerjee as to his inability to give possession without any order of Court, the assertion of the new receiver as to Mr. S. N. Banerjee or himself not being in possession of the Calcutta properties appears to be somewhat curious and certainly requires investigation and clarification.

7. On the 3rd May 1947 a Tabular Statement verified and affirmed by the plaintiff on the 25th April 1947 along with a separate affidavit affirmed on the same day in support of the Tabular Statement was presented before this Court. In column 9 of the Tabular Statement which requires the specification of the name of the person against whom enforcement of the decree is sought the following entry appears :

'Against the defendant Jyotish Chandra Sen for realisation of the sum of Rs. 6372-4-0 and the other reliefs mentioned in column 10 hereof and Rukmini Ballav Sen.'

In column 10 have been specified the modes in which the assistance of the Court is required, namely

'(1) that the applicant be put in vacant possession of the properties allotted to him by the receiver or some other officer, (2) that the defendant Jyotish do close all doors and windows abutting on the applicant's allotments, (3) that the defendant Rukmini do close all doors and windows abutting on the applicant's allotments, (4) that the allotments of the defendant Jyotish be sold in execution and a sum of Rs. 6372-4-0 be paid to the applicant out of the sale proceeds, (5) that in default of closing of doors and windows by Jyotish and Rukmini the. receiver or some other officer be directed to do so at the cost of the said defendants and (6) that such necessary directions and enquiries as the Court may think fit may be made.'

8. On the presentation of the Tabular Statement and the supporting affidavit a notice was issued by the Master under Order 21, Rule 22 (1) (a) of the Code of Civil Procedure calling upon the defendants Jyotish and Rukmini to show cause why the decree passed against them on the 19th March 1936 should not be executed against them in the manner more fully set out in the Tabular Statement filed herein. The defendant Rukmini has not opposed this application. The defendant Sushila Bala has filed an affidavit contending that the award is not binding on her and opposing this application. No relief is claimed against her in this application and no notice has been issued to her and it is not intelligible why she has appeared at all in this application. The real opposition has come from the defendant Jyotish who by his counsel contends that this application is barred by limitation.

9. The decree, it will be remembered, was made on the 19th March 1936 and the Tabular Statement and the affidavit in support thereof was filed on the 3rd May 1947. If Article 183 of the Indian Limitation Act applies this application will be within time. That article prescribes for the enforcement of a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction a period of 12 years computed from the date when a present right to enforce it accrues to some person capable of releasing the right. The argument advanced by learned counsel for the defendant Jyotish is that that article does not apply inasmuch as the decree under execution was not made by this High Court in exercise of its ordinary original civil jurisdiction.

10. Section 1 of 24 and 25 vict. Order 104 authorised Her Majesty to establish a High Court in Bengal by Letters Patent. Section 9 of that Act specified the several jurisdictions that the High Court to be so established should have. These jurisdictions were subject to what might be prescribed by the Letters Patent. This High Court was established by Letters Patent of 1862 which were subsequently replaced by the Letters Patent of 1865. A reference to the Letters Patent of 1865 will show that Clauses 11 to 18 are grouped under the heading 'Civil jurisdiction of the High Court.' Clauses 19 to 21 are collected under the heading 'Law to be administered by the High Court.' Clause 11 prescribes the local limits of the Ordinary Original Civil Jurisdictions of this Court. Clause 12 ordains that this Courts in exercise of its ordinary original civil jurisdiction shall be empowered to receive, try and determine suits of every description if the conditions specified therein are satisfied. The language of the clause makes it fairly clear that the receiving, trying and determining suits falling within this clause is done by this Court in exercise of its ordinary original civil jurisdiction. Clause 19 prescribes the law to be administered by this Court in exercise of its ordinary original civil jurisdiction. A judgment, decree or order made in a suit received, tried and determined under Clause 12 by applying the laws prescribed by Clause 19 is clearly one made by this Court in exercise of its ordinary original civil jurisdictions and consequently covered by Article 183 of the limitation Act. All the defendants here do not reside within the local limits prescribed by Clause 11 of the Letters Patent. The bulk of the immoveable properties in suit is situate outside those limits. The plaint was not presented before this Court and there was no occasion for any leave under Clause 12 being asked for or granted. It is therefore, clear that this suit was not received, tried or determined by this Court in exercise of its ordinary original civil jurisdiction under el. 18., It was transferred to this Court on an application intituled 'in the matter of Clause 13 of the Letters Patent'' That clause empowers this Court to remove and to try and determine, as a Court of extra-ordinary original jurisdiction, any suit falling within the jurisdiction of any Court whether within or without the Bengal Division of the Presidency of Fort William subject to its superintendence when it shall think proper to do so either on the agreement of the parties to that effect or for purposes of justice. The language of this clause quite expressly states that this removing, trying and determining of suits are to be done by this Court as a Court of extra-ordinary. original jurisdiction. This extra-ordinary original jurisdiction has to be assumed by the High Court at its discretion and by a special order. A suit does not get transferred to the High Court merely by act of parties as a suit may be filed in the High Court by a party. Clause 20 prescribes the law to be applied by this Court in the exercise of its extra-ordinary original civil jurisdiction, namely the law or equity and rule of good conscience which the Court in which the proceedings in such case were originally instituted ought to have applied to such a case. This suit was transferred from the Alipore Court to this Court on an application made in the matter of Clause 13 of the Letters Patent by reason of an order made by this Court and was,, on transfer, marked as extra-ordinary suit No. 4 of 1935. Therefore this Court removed, tried and determined this suit as a Court of extra-ordinary original jurisdiction and the law or equity and rule of good conscience administered by the Alipore Court mutt be applied by this Court. The two sets of clauses, namely, 11, 12 and 19 on the one side and 18 and SO on the other clearly maintain a distinction between the two jurisdictions not only in respect of the kind of suits but also as to the laws to be applied in exercise of the two jurisdictions. If Clause 20 governs also the execution proceedings arising out of such transferred suit the law of limitation applicable to execution proceedings of the Court in which such suit was originally instituted ought also to apply to execution proceedings arising out of such transferred suit.

11. It is interesting to note that Section 19 of the Limitation Act of 1859 which prescribed a period of 12 years for the enforcement of a judgment, decree or order of a Court established by Royal Chaiter did not contain the words 'in exercise of its ordinary original civil jurisdiction.' At the date of the passing of that Act the only Court in Bengal established by Charter was the Supreme Court and there could be no difficulty in applying 8. 19 of the Act of 1859. This High Court was established by Letters Patent of 1862 which were replaced by Letters Pattnt of 1865 which are still in force. These Letters Patent, as I have said, clearly make a distinction between the ordinary original civil jurisdiction and the extra-ordinary civil jurisdiction and the appellate and other jurisdictions and the law to be applied. Question arose as to whether a decree passed by the High Court on the appellate side was governed by Section 19 of the Act of 1859. One might perhaps have thought that Section 19 of the Act of 1859 covered all judgments, decrees or orders of the Courts established by Royal Charters in exercise of each and all its. jurisdiction. It was, however, held that the section did not apply to decrees of the High Courts on their appellate sides. (See Arunachala v. Veludayan, 5 M.H.C.R. 215, Ramcharan v. Lakhi Kant, 16 W. E. 1, Kristo Kinkar v. Buriocacant Singh, 17 W. B. 292 : 14 M. ). A. 465, which were all cases under the Act of 1859). The extraordinary original jurisdiction was a new jurisdiction conferred on the High Court, for the Supreme Court had no such extraordinary jurisdiction. In exercise of this extraordinary original jurisdiction the High Court was enjoined to administer the same law of equity and rule of good conscience as would have been applied* by the Court in which the suit had been originally instituted. On a parity of reasoning therefore, it could be argued that Section 19 of the Act of 1659 did not apply to an application for execution of a decree made by the High Court in a transferred suit in exercise of its extraordinary original civil jurisdiction.

12. Then came the Limitation Act of 1871. Section 169 of this Act reproduced section 19 of the Act of 1859 but for the first time introduced the words 'in exercise of its ordinary original civil jurisdiction'. This change of language in the Limitation Act of 1871 clearly suggests that the Legislature adapted the above rulings and supports the view that the Legislature intended article 169 to cover applications for enforcement of judgments, decrees and orders made by the Chartered High Courts in exercise of one particular jurisdiction, namely, ordinary original civil jurisdiction and not in exercise of its other jurisdictions. Article 180 of the Limitation Act of 1877 re-enacted this provision and that is reproduced in article 683 of the present Limitation Act. On a plain reading of the relevant provisions of the Letters Patent and the history of the Limitation Acts and the judicial decisions I have mentioned I am in agreement with learned counsel for the defendant Jyotish that in removing, trying and determining this suit which had been originally filed in the Alipore Court this Court acted as a Court of extra-ordinary original jurisdiction and not as a Court of ordinary original civil jurisdiction and the decree under execution was made by it in exercise of its extraordinary original civil jurisdiction and not in exercise of its ordinary original civil jurisdiction and therefore, this application for enforcing this decree does not come, under Article 163. As this application is not covered by article 183 it must fall under article 182 and is, therefore, barred by limitation.

13. I find support for the above conclusion from the decision of the Judicial Committee in Navivahoo v. Turner, 16 I. A. 156. In that case on the 19th August 1868 the Insolvency Court of Bombay ordered that a judgment should be entered up in the name of the Official Assignee against the insolvent for the amount mentioned therein. That judgment was accordingly entered up in the High Court. On the 5th April 18S6 the Insolvency Court ordered execution to be taken out. The representatives of the insolvent being summoned to show cause why the judgment should not be executed pleaded limitation under the Indian Limitation Act 1877. Scott J. upheld this objection. On appeal West J. held that the case fell under Article 180 (present Article 183) and that no present right accrued till the order of the Insolvency Court was made on the 5th April 1886. Sargent C. J. held that the case was not provided for by Limitation Act at all. Result was that execution was directed to be issued. The representatives of the insolvent went up on appeal to the Judicial Committee. Lord Hobhouse who delivered the judgment of the Board referred to 84 and 25 vic, 0104 and Clauses 11 to 18 of the Letters Patent grouped under the heading 'Civil Jurisdiction of the High Court' and concluded as follows :

'From this brief statement of the material statutes and Charters, it appears that though the Insolvency Court determines the substance of the questions relating to the insolvent's estate, such as the amount of the judgment to be entered up against him, and the propriety of issuing execution upon it the proceedings in execution ate the proceedings of the High Court, and the judgment itself is the judgment of the High Court. And it is clearly entered up in the exercise of civil jurisdiction and of original jurisdiction.'

His Lordship then repelled the argument that this jurisdiction, though civil and original was not ordinary original civil jurisdiction under the Letters Patent with the following observations

But their Lordships are of opinion that the expression 'ordinary jurisdiction' embraces all such as is exercised in the ordinary course of law and without any special step being necessary to assume it; and that it is opposed to extra ordinary jurisdiction which the Court may assume at its discretion upon special occasions and by special orders. They are confirmed in this view by observing that in the next group of clauses, which indicate the law to be applied by the Court to the various classes of cases, there is not a fourfold division of jurisdiction, but a threefold one into ordinary, extraordinary and appellate. The judgment of 1868 was entered up by the High Court, not by way of special or discretionary action, but in the ordinary course of duty cast upon it by law, according to which every other case of the same kind would be dealt with. It was therefore, entered up in exercise of the ordinary original civil jurisdiction of the High Court; and no present right accrued to the Official Assignee to move for execution until the order of the 5th April 1886 was made.'

In the result the appeal was dismissed. It may be noted that under Rule 136 of our Insolvency Rules under the Presidency Towns Insolvency Act the decree has to be drawn up in form No. 25 which shows that the decree is to be drawn up as a decree in a suit with a suit number. Be that as it may this decision clearly establishes that as the extra ordinary original civil jurisdiction is not a matter of course but may be assumed by the Court only as its discretion on special occasions and by special orders it is not ordinary original civil jurisdiction. It follows that Article 183 would not govern a decree made in exercise of the extra ordinary original civil jurisdiction of the High Court under Clause 13 of the Letters Patent.

14. Learned counsel for the applicant urges that this suit might as well have been transferred to this Court under Section 24 of the Code of Civil Procedure. Reliance is placed on the following observations of Rankin C. J. in Monindra Chandra v. Lal Mohan, 56 Cal. 940 at p. 954 :

'Section 24 throws no light upon the matter, as it is a case where certain powers are expressly conferred upon the High Court and clearly upon the High Court in its Original jurisdiction. . . . .'

It is contended on the authority of the above passage that in transferring the suit under Section 24 of the Code the High Court exercises original jurisdiction and therefore a decree passed in a suit so transferred is governed by Article 183. It is also pointed out that the petition for transfer of this suit was headed 'In the High Court of Judicature at Fort William in Bengal, Ordinary Original Civil Jurisdiction.' The argument is that if the application was really one under Clause 13 of the Letters Patent the petition would have been headed 'In the High Court of Judicature at Fort William in Bengal, Extra-ordinary Original Civil Jurisdiction'. I do not think there is any substance in the last mentioned argument. The application was expressly intituled in the matter of Clause 13 of the Letters Patent. It was not intituled in the matter of Section 24 of the Code of Civil Procedure. I have no doubt in my mind that the use of the expression 'Ordinary Original Civil Jurisdiction' at the head of the petition was a slip referable apparently to oversight or carelessness. The reference to Clause 13 of the Letters Patent in the title of the petition clearly indicates that the extra ordinary original jurisdiction of this Court was invoked. The observations of Rankin C. J. were made in passing for that case was concerned with the question of the applicability of Section 21 of the Code to the Original Side and not with that of Section 24 of the Code. There is authority that transfer under S. 24 of the Code is to be made by the appellate side (see Kadambini Baiji v. Madan Mohan Basak, 3 C. W. N. 247). However, the decision of Rankin C. J. is binding on me. But I do not think the observations of the learned Chief Justice help the applicant for I think that what the learned Chief Justice meant to express was that an application under Section 24 before the High Court was an original application as distinct from an appeal or revision and in that sense Section 24 conferred powers on the High Court in its original jurisdiction. This original jurisdiction is not a matter of course but has to be assumed by the High Court at its discretion on special occasions and by a special order just as extra-ordinary original jurisdiction under Clause 13 of the Letters Patent has to be assumed by a special order. Therefore, according to the test laid down by Lord Hobhouse in Navivahoo's case, 16 I. A. 156, (supra) this original jurisdiction under Section 24 of the Code cannot be ordinary original civil jurisdiction and consequently an order of transfer of a suit to itself by the High Court under Section 24 of the Code and a decree, passed in such transferred suit, is made by the High Court in exercise of this special original jurisdiction conferred on the High Court by Section 24 of the Code and not in exercise of its ordinary original civil jurisdiction. In the light of the change in the language of the relevant articles of the Limitation Acts and the reasons therefore and the decisions mentioned above I am of opinion that Article 188 does not cover a decree made by the High Court in a suit transferred under Section 24 of the Code or under Clause 13 of the Letters Patent. In other words, in my opinion, the words 'in exercise of its ordinary original civil jurisdiction' in that article refer to the ordinary original civil jurisdiction conferred on it by 24 and 25 Vic Clause 104 and by the Letters Patent and not to the extra-ordinary original jurisdiction conferred on it by Clause 13 nor to what may be called the special original jurisdiction conferred by Section 24 of the Code both of which are not (ordinary original civil jurisdiction.

15. My attention has been drawn to the decision of the appeal Court in Ghaitam Sagormull v. Hardwari Mull and Co., 55 Cal. 499 : 31 C. W. N. 1097 and it has been contended that the construction of Article 183, in the way suggested above will run counter to this decision which is binding on me. It is, -before, necessary to examine that decision with care. There the Bengal Chamber of Commerce on a submission under the Indian Arbitration Act, 1899 made an award on the 3rd August 1923. This award was filed in this High Court on its original side. The award was on the 14th December 1926 assigned to the respondents who as assignees applied for execution. The executing Court held that: the application was within time under Article 183. The matter then came before the appeal Court on an appeal by the party against whom the award had been made. The question turned on the true meaning of the provisions of Section 15 (i) of that Arbitration Act which was in the terms following:

'An award on a submission, on being filed in the Court in accordance with the foregoing provisions, shall (unless the Court remits it to the reconsideration of the Arbitrators or umpire or sets it aside) be enforceable as if It were a decree of the Court.'

After quoting the section Rankin C. J. observed:

'So, there can be no doubt that it is not only to be enforceable as if it were a decree in general but, having been filed in a particular Court, it is to be enforceable as if it were a decree of that Court.'

Then the learned Chief Justice held that this section attracted not only the provisions relating strictly to procedure bus also the provisions of the Limitation Act which are also regarded for the purposes of International Law as questions of procedure. This decision accepts the position that by virtue of Section 15 (i) of that Arbitration Act the award became executable not only as a decree of the High Court but as a decree of the High Court made in exercise of its ordinary original civil jurisdiction. This position may be mentioned and supported by a reference to the other provisions of that Act. Section 2 of that Act provided that subject to the provisions of Section 23 that Act should apply only in cases where, if the subject-matter submitted to arbitration were the subject of a suit, the suit could, whether with leave or otherwise, be instituted in a Presidency town. Apart from the cases which can be filed in the Calcutta Small Cause Court, a suit, if it is to be initially filed in this Presidency town, can only be filed in the High Court on its original side. The High Court on its original side can receive an original suit only in exercise of its ordinary original civil jurisdiction under Clause 12 of the Letters Patent. Section 3 of that Act defined 'the Court' as meaning in the Presidency towns the High Court. Rules framed by the High Court under Section 20 of that Arbitration Act assigned all proceedings under that Act to the High Court in its ordinary original civil jurisdiction. There can, therefore, be no doubt that those sections and the rules pointed be the High Court in its ordinary original civil jurisdiction as the Court. The award on being filed in the original side of the High Court, therefore, became executable, as if it were a decree passed by the High Court in exercise of its ordinary original civil jurisdiction and attracted all the rules of procedure and limitation applicable to such a decree. The jurisdiction conferred by the Arbitration Act, 1839 and the rules was undoubtedly original civil jurisdiction and it was, in the light of the teat laid down by Lord Hobhouse ordinary original civil jurisdiction for no special step had to be taken by this Court to assume jurisdiction to execute the award. It is true that the award filed in the original side of .the High Court under Section 15 (1) of the Arbitration Act, 1899 was not in reality at all a decree made by the High Court--yet it beau/me, on being filed on the original side of the High Court executable as if it wore a decree of the High Court in exercise of its ordinary original civil jurisdiction This, I apprehend, is the ratio decidendi of the appeal Court decision. So understood that decision does not help the applicant.

16. In the end I have been pressed by learned counsel for the applicant to treat this application as one for directions. On reflection I find it impossible to accede to this suggestion for the following reasons:

(i) In form this application is nothing but one for execution;

(ii) This application in so far as it prays for payment of owelty money is purely an application for execution and cannot be treated as an application for direction;

(iii) The provisions of the award in so far as they direct the closing up of the door' and windows are capable of execution and directions for closing up are not called for;

(iv) If this application is to be treated as one for direction on the receiver, no notice of this application has been given to the receiver;

(v) If this application is to be treated as application for direction on the receiver it cannot be disposed of without further materials, for there is dispute as to whether the receiver is in possession of the properties;

(vi) An application cannot be split up and treated partly as one for execution and partly as one for direction.

On a consideration of all these difficulties, I feel bound to treat this application as what it purports to be, namely as purely an application for execution and as such I am bound to hold that this application is barred by limitation. I may also mention that as an application for execution no order own be made for delivery of possession by the defendant Jyotiah for in the award there is no direction on anybody to deliver possession of any of the allotments. The award which allots different properties to different persons is purely declaratory and the decree thereon is not executable so far as delivery of possession is concerned.

17. The result, therefore, is that this application must stand dismissed The applicant must pay the costs of the defendant Jyotish. Certified for two counsel. I make no order as to the costs of the defendant Rukmini or the defendant Sailabala.


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