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Subramania Vishwanath Pillai Vs. Indo-world Trading Co. Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal No. 27 of 1964
Judge
Reported inAIR1965Cal217
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1; ;Limitation Act, 1963 - Section 5, 12, 12(2) and 12(3) - Schedule - Article 124; ;Calcutta High Court Rules - Rules 2, 3, 27 and 34
AppellantSubramania Vishwanath Pillai
Respondentindo-world Trading Co. Ltd. and anr.
DispositionApplication allowed
Cases ReferredJagat Dhish Bhargava v. Jawahar Lal Bhargava
Excerpt:
- .....court. the defendant no. 2appeared before the executing court and had several adjournments from time to time. on december 14, 1963 s. vishwanath pillai the said defendant no. 2filed a suit in this court being suit no. 2144 of 1963 for a declaration that the decree dated may 6, 1959 was null and void and not binding on him and for an injunction restraining the present petitioner from taking steps in execution of thedecree and for other reliefs. on an application by s.v. pillai for the said reliefs an order was madeby the learned judge taking interlocutory matterson january 9, 1964 granting an injunction prohibiting the execution of the decree conditionally uponpillai's giving security to the extent of rs. 40,000/-pillai preferred an appeal from the said order and,made an application to.....
Judgment:

Mitter, J.

1. This is an application for reviewing two orders dated March 9, 1964 passed by this bench and for certain consequential reliefs.

2. The facts are as follows: The applicant Indo World Trading Co., Ltd., filed a suit jn this Court being Suit No. 214 of 1955 against a firm known as ChellamTrading Company and an individual by the name of S. V. Pillai for recovery of certain suras of money advanced by the plaintiff to the defendant firm. The defendant No. 2 is alleged to have guaranteed the payment of the dues of the plaintiff to the extent of Rs. 51,000/-. Both the defendants filed written statements. When the suit came on for hearing in the year 1959 the advocate for the defendant No. 2 stated that he had no instruction from his client. As between the plaintiff and the defendant firm certain terms of settlement were recorded in writing. The decree as drawn up bearing date May 6, 1959, shows that on the evidence adduced S.V. Pillai the defendant No. 2 was to pay the plaintiff the sum of Rs 34,264/12/3 with interest and costs. So far as the terms pf settlement are recorded they merely record that the plaintiff would not execute the decree for seven years against the defendant firm and there would be an injunction restraining the defendant firm and its proprietor from disposing of or encumbering in any way the immovable property belonging to the firm or to the proprietor for a period of seven years without making any provision for payment of the said sum of Rs. 34,264/12/3. The decree does not expressly direct the defendant No. 1 to pay any sum to the plaintiff, In June 1963 the present petitioner levied attachment on certain immovable properties belonging to the defendant No. 2 and situate at Tirunelveli in the State of Madras after transferring the decree from this Court. The defendant No. 2appeared before the executing court and had several adjournments from time to time. On December 14, 1963 S. Vishwanath Pillai the said defendant No. 2filed a suit in this Court being suit No. 2144 of 1963 for a declaration that the decree dated May 6, 1959 was null and void and not binding on him and for an injunction restraining the present petitioner from taking steps in execution of thedecree and for other reliefs. On an application by S.V. Pillai for the said reliefs an order was madeby the learned Judge taking interlocutory matterson January 9, 1964 granting an injunction prohibiting the execution of the decree conditionally uponPillai's giving security to the extent of Rs. 40,000/-Pillai preferred an appeal from the said order and,made an application to this bench asking for stayof execution and for other reliefs. After affidavits had been filed the matter came on for hearing before us on March 9, 1964. After hearing counselof both sides it was felt that the order appealed from ought to be modified. At the suggestion of counsel appearing for the parties it was directedthat on S.V. Pillai's furnishing security of Rs. 15,000/- in cash with the Registrar of this courtwithin eight weeks from date the attachment onhis properties would be removed and in default his application would stand dismissed with costs. It was further directed that if the money was deposited costs of the application as also of the appealwould be costs in the suit and the appeal would betreated as on the day's list and disposed of on theterms mentioned. The matter was mentioned before us again on March 11, 1964, when the above orderwas modified by inclusion of an order for injunction restraining the decree-holder from executing the decree in case the security was furnished in cash as directed. On May 12, 1964 the matterbeing mentioned again time to furnish the Securitymoney was extended by 10 days from that dateand the Registrar of this court was directed toaccept a bank draft in lieu of cash if he thoughtfit.

3. During all this period every one appearedto have lost sight of the fact that the executingcourt was not subordinate to this court and consequently this court was not competent to pass an order directing the removal of the attachment levied on the properties at Tirunelveli although it could have directed the petitioner to take steps for, removing the attachment on security being furnished but that was nqt done. Two orders were drawn up on the basis of what transpired in courtbefore us on March 9, 1964. By the first of these orders it was directed that on Pillai's depositingthe sum of Rs. 15,000/- in cash with the Registrarof this Court the attachment on his properties in,Madras would be removed and the decree-holderwould be prohibited and restrained from executingthe decrees dated May 6, 1959 until further Orders ofthis court. By the second order it was directed that in the event of Pillai's depositing the sum of Rs. 15,000/- as above the appeal would stand disposed of in terms of the said order.

3a. On May 19, 1964 the present petitionermade an application to this court for variation ofthe order dated March 9, 1964. It appears thatthe order of March 9, 1964 relating to the furnishingof the security and the removal of attachment wasdrawn up, settled and filed on or about May 9, 1964 and a certified copy thereof, was receuved by the respondent herein on May 10, 1964. When the application came on for hearing on June 9, 1964 it was pointed out by learned counsel for Pillai that no relief could be granted in view of the fact that the order complained of had been completed and filed.

4. The present application for review was made by petition and a memo of review filed on June 27, 1964. The respondent (Petitioner ?) Pillai filed his affidavit in opposition on July 20, 1964.

5. In order to find out whether an application for review is maintainable we have to examine the grounds put forward and see whether the same are covered by the provisions of Order 47 Rule 1 of the Code of Civil Procedure. Under the relevant provisions of that Rule any person considering himself aggrieved by a decree or order from which no appeal has been preferred or by a decree or order from which no appeal is allowed and who on account of some mistake or error apparent on the face of the record desires to obtain a review of the decree passed or order made against him, may apply for a review of the judgment to the court which passed the decree or made the order. The petitioner's case before us is that there is an error apparent on the face of the record inasmuch as the Court was not competent to direct the removal of attachment levied through the executing court in the State of Madras. Learned counsel for the respondent conceded that this court could not direct the removal of attachment and contended that the order must be construed as if it directed the petitioner personally to take steps to remove the attachment. Unfortunately however the order is not so expressed. No doubt an order to that effect would have been made if the attention of the court had been drawn to it or counsel appearing for the respective parties had thought of it on March 9, 1964. However we must construe the order as we find it and it would not be proper to read it in a way which the wording of it does not warrant.

6. The meaning of the Expression 'error apparent on the face of the record has been examined in many cases. For instance in S. P. Arrati v. C. P. Fernandes, : AIR1959Bom466 , Chagla, C. J. said 'the error contemplated must be an error so manifest, so clear, that no court would permit such an error to remain on the record.' In Ram Baksh v. Mt. Rajeswari Kunwar, AIR 1948 All 213, it was observed that

'Order 47 Rule 1 may be attracted to errors of law. The law must be definite and the error in regard to it must be apparent i. e., patent upon the face of the record.

It is an error which can be seen at once by a mere perusal of the record without reference to any other matter and without the aid of any argument or reference to authorities in order to carry conviction.'

Again in Venkatarayulu Naidu v. Venkata Rattamma Garu, A. I. R. 1939 Mad) 293, it was held that

'when there is an error of law which obviously and without research into the rulings involves a lack of jurisdiction to pass the order of which review is sought, it is eminently a case in which the error, though technically an error of law, is apparent on the face of the record.'

7. In the light of the above observations it is clear that there is an error on the face of the record so far as the order of March 9, 1964 is concerned. When a decree remains unsatisfied it can be transferred from the court passing the, degree to any other court for execution and the executing court is competent to levy attachment on any properties belonging to the judgment-debtor situate within the jurisdiction of that court. When a decree remains in full force and effect and has been transferred to another State for execution the court which passed the decree is not competent to direct that the attachment levied by the transferee court should be lifted. It can recall the decree but unless that is done the executing court does not cease to have jurisdiction and when it is not subordinate to the court which passed the decree the order passed by it cannot be modified or disturbed by the latter.

8. This is therefore a case where the court is competent to entertain an application for review under Order 47 Rule 1. The next question to which we have to address purselves is whether the application is barred by limitation.

9. The period of limitation for an application for review of a judgment or order is 30 days from the date of the judgment or prder under Article 124 of the Limitation Act 1963. Under Section 12(2) of the said Act the day on which the order complained of is pronounced and the time requisite for obtaining a copy of the order sought to be reviewed have to be excluded. Further under Sub-section (3) the time requisite for obtaining a copy of the judgment on which the order is founded has also to be excluded. In the new Limitation Act of 1963 an explanation has been appended at the foot of Section 12 providing that

'In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.'

10. The relevant dates for ascertaining whether the application is barred by limitation have not been collected and set forth seriatim in any affidavit filed herein but they have to be gleaned from all the papers before us. They appear to be as follows: The order was made on March 9, 1964. The respondent put in a requisition for drawing up of the order and applied for a certified copy of the order on the very next day. He made a second application for a certified copy of the order disposing of the appeal on May 4, 1964. On May 9, 1964 the first part of the order was settled and passed and on the day following he received a certified copy of the first of the two orders which were drawn up. On May 19, 1964 the petitioner took out a notice of motion praying for various reliefs including modification or recall of the order dated March 9, 1964. On May 9, 1964 the order for disposal of the appeal preferred by the respondent was drawn up and settled and a certified copy thereof supplied to him. On June 9, 1964 the application of the petitioner on the notice of motion taken out on May 19, 1964 was disposed of. On June 26, 1964 the petitioner applied for a certified copy of the order of March 9, 1964. On June 27, 1964 the petitioner received the copy and filed his memorandum of review. The petitioner made reference to most of the above happenings in his petition and prayed that the time taken up to supply certified copies of the two orders should be excluded. He submitted that he was prevented from making this application earlier inasmuch as he was prosecuting with due diligence his application dated May 19, 1964 for modification of the impugned order and the time taken for prosecuting the said application i.e., from May 19, 1964 to June 9, 1964 as also the time requisite for obtaining a certified copy thereof i.e., from March 10 to May 9, 1964 should be excluded. If these periods are excluded the application will not be out of time. It was argued by learned counsel for the petitioner that in any event the present is a case where the delay should be condoned under Section 5 of the Limitation Act.

11. As against this counsel for the respondent relied strongly on the explanation to Section 12 and :argued that inasmuch as the petitioner had never applied for a copy of order within a period of 30 days from March 9, 1964 he could not get the benefit of Section 12(2) or Section 12(3). In my opinion, this is not the correct view of the law. Under Chapter 16 Rule 27 of the Rules of the Original Side of this Court an application for the drawing up of an order has to be made by requisition to the Registrar in writing by the party in whose favour the decree, or order is made within three days from the date of the decree or in default of his applying within such time by any party within seven days from the date of the order. Under Chapter 31 Rules 2 and 3 read with Rule 34 a memorandum of review must be drawn up as therein laid down in the form prescribed and must be presented to the Registrar accompanied by a copy of the order sought to be reviewed. On the facts of this case the petitioner cannot be blamed for not having put in a requisition for drawing, up of the order's. Under Chapter 16 Rule 27 such right would have accrued to him only if the respondent had failed to put in a requisition. In Sambhu Nath v. Gopi Lal : AIR1929Cal734 Rankin C.J. pointed out that the defendant appellant never became entitled or obliged to exercise the right of putting in another requisition for drawing up of the decree when the plaintiff in whose favour the decree had been made had taken the necessary step on the day after the passing thereof. In that case the defendant appellant filed a requisition for obtaining an office copy of the decree only after the issue of a draft decree and the approval thereof by him. The learned Chief Justice pointed out that until there was a decree there could not be a copy of it. Consequently the time taken up from the date of the requisition for drawing up of the decree and the approval of the draft decree should be excluded. Reference was also made by the learned Chief Justice to the judgment of the Judicial Committee in Surty v. Chettyar, 55 Ind App 161: (AIR 1928 PC 103) where Lord Phillimore had observed but for that time which is taken up by his opponent in drawing up the decree or by the officials ofthe Court in preparing and issuing the two documents he 'is not responsible'.

12. It is to be noted that even before the inclusion of the explanation to Section 12. of the new Limitation Act it was held by a Full Bench of this Court in Secy, of State v. Perijat Debi : AIR1932Cal331 that a litigant was entitled to the exclusion of such time as was properly required for the drawing up of the decree or order assuming that no part of the delay, if any, was due to his default. In other words, if the delay in obtaining a copy was due to the laches of the appellant he could not claim the benefit of the provision for the exclusion of the time required for obtaining a copy of the decree or order. Section 12(2) o,f the old Limitation Act which was practically in the same terms as its counter part in the new Act was considered by the Supreme Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava, : [1961]2SCR918 . It was there noted that a litigant feeling aggrieved by a decision might apply for the certified copy of the judgment and decree before the same was drawn up or he might apply for the same after it was drawn up. It was observed that in the former case where the litigant had done all that he could do the time requisite for obtaining the copy must include not only the time taken for the actual supply of the certified copy of the decree but also for the drawing up of the decree itself. The Court further noted that there was a sharp difference of opinion in regard to cases where an application for a certified copy of the decree was made after the decree was drawn up. In dealing with such cases the Bombay, Calcutta and Patna High Courts have held that the period taken in drawing up of the decree would be part of the requisite period while other Courts have taken a different view.

13. In my opinion, before applying the explanation to Section 12 we must see whether it was open to a litigant desiring to prefer an application for review, to put in a requisition for the drawing up of the decree or order immediately the same was passed. If as under the Rules of the Original Side of this Court a party is not allowed to put in a requisition himself for drawing up of the order the time taken for the drawing up of the same cannot be taken in account against him. It will be better if our Original Side Rules are amended so as to allow any party to put in a requisition for completing a decree or order immediately the same is made so that the explanation to Section 12 can apply to all cases. Until there is an alteration of the rule the period taken by the Court in drawing up the decree ought not be charged against a litigant who cannot put in a requisition for the purpose,

14. In the premises, the time taken up in the drawing up of the order from March 10, 1964 to May 9, 1964 as also the time taken up in prosecuting the application which had to be abandoned i.e., the period between May 19, 1964 and June 9, 1964 ought to be excluded in computing the period of limitation for this application. In this view of the matter, the application is not out of time. The application for review is therefore allowed. Costs of this application will abide by the costs of the hearing on review.

15. The application resulting in the order of March 9, 1964 will be reheard. Let it be placed, before the appropriate Bench for hearing on September 21, 1964.

Bose, C. J.

16. I agree.


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