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Benaras Ice Factory Ltd. Vs. Sukhlal Amarchand Vadnagra - Court Judgment

LegalCrystal Citation
SubjectContempt of Court;Civil
CourtKolkata High Court
Decided On
Case NumberSuit No. 198 of 1960
Judge
Reported inAIR1961Cal422
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11, 47 and 51; ;Constitution of India - Article 261; ;Contempt of Courts Act - Section 5
AppellantBenaras Ice Factory Ltd.
RespondentSukhlal Amarchand Vadnagra
DispositionSuit dismissed
Cases ReferredBhondu v. Raj Singh
Excerpt:
- a.n. ray, j. 1. the defendant no. 2 new beerbhum coal co. 'ltd. instituted suit no. 1024 of 1953 against the plaintiff, the benaras ice factory ltd. and the defendant no. 4, jiban krishna mukherjee for the sum of rs. 18,497-15-0. on december 5, 1955, there was a consent decree in favour of the defendant no. 2 against benares ice factory ltd. for the sum of rs. 18,497-15-0 with interest thereon at 6 per cent per annum from the date of the decree until realisation. under the consent decree the decretal amount was payable in certain instalments. it was further provided in the decree that in default of payment of any one of the instalments the balance of the decretal amount would at once become payable and the defendant no. 2 would be entitled to put the decree in execution. finally, by the.....
Judgment:

A.N. Ray, J.

1. The defendant No. 2 New Beerbhum Coal Co. 'Ltd. instituted Suit No. 1024 of 1953 against the plaintiff, the Benaras Ice Factory Ltd. and the defendant No. 4, Jiban Krishna Mukherjee for the sum of Rs. 18,497-15-0. On December 5, 1955, there was a consent decree in favour of the defendant No. 2 against Benares Ice Factory Ltd. for the sum of Rs. 18,497-15-0 with interest thereon at 6 per Cent per annum from the date of the decree until realisation. Under the consent decree the decretal amount was payable in certain instalments. It was further provided in the decree that in default of payment of any one of the instalments the balance of the decretal amount would at once become payable and the defendant No. 2 would be entitled to put the decree in execution. Finally, by the consent decree a first charge was created upon the plans and machinery of the Ice Factory of the plaintiff lying and situate at Benares and the decree-holder was declared to be at liberty to execute the decree by sale of the properties charged by application in execution in this suit without being obliged to institute any suit in Benares Court. There was default in payment of the instalments. The defendant No. 2 applied for execution of the decree. By an order of this Court dated May 17, 1956, interim receiver was appointed of the plants and machinery of the said Ice Factory. By an order dated May 30, 1956, the appointment of the interim receiver was confirmed. The receiver was Mr. A.K. Sen (Jr.) a member of the Bar. The order dated May 30, 1956, further provided that 'the receiver shall be at liberty to sell the said properties charged in favour of the plaintiff company either by private treaty or by public auction to the best purchaser or purchasers that can be got for the same'.

2. On March 10, 1958, the receiver entered into an agreement with the defendant No. 1 Sukhlal Amarchand Vadnagra for sale to the said defendant of certain goods including the plants and machinery for the sum of Rs. 30,000/-. The said agreement was confirmed by this Court on May 9, 1958. By that order Benares Ice Factory was ordered to deposit within 3 weeks thereof the sum of Rs. 3000/- with Messrs. Sandersons and Morgans and the balance of the dues of Beerbhoom Coal Co. within 10 weeks thereof and in default of deposit of Rs. 3000/- and the balance of the dues the sale in execution of the decree to Vadnagra was confirmed.

3. The plaintiff, the Benares Ice Factory Ltd. filed an application in this Court for cancellation of the said agreement and for extension of time for the plaintiff to pay as provided in the Order dated May 9, 1938. The said application was dismissed on July 29, 1958. On August 20, 1958, the plaintiff filed another application in this Court for leave to deposit the whole of the balance of the decree-holder's dues but the application was dismissed on September 4, 1958. Thereafter the plaintiff filed an appeal being Appeal No. 188 o! 1958. In the appeal upon an application being made an order was made staying delivery and/or possession of the plants and machinery to the defendant No. 1 upon the plaintiff furnishing security for the sum of Rs. 30,000/-. The plaintiff furnished security to the satisfaction of the Registrar of this Court on or about September 11, 1958. The appeal was dismissed on April 29, 1959. Ultimately an appeal was preferred to the Supreme Court. The appeal was dismissed by the Supreme Court on November 10, 1959.

4. The plaintiff's present case is that the sale of the plants and machinery by the receiver to the defendant No. 1 is illegal, void, without jurisdiction and does not confer any right, title or interest to the defendant No. 1. Various grounds are set out in paragraph 5 of the plaint. The grounds are, inter alia, first, that the properties sought to be sold under the agreement are permanently embedded to the earth and/or are immovable properties and are situated outside the jurisdiction of this Court and as such the properties could not be sold by this Court or by the receiver in execution of a decree for money. Secondly, it is alleged that the receiver was not authorised to sell and/or that he was not appointed receiver to sell the properties. Thirdly, that the procedure provided under Order 21 of the Code has not been followed. Fourthly, that the agreement for sale has not been evidenced by the Sale Deed which was not duly stamped or registered. Fifthly, that the receiver did not notify the sale to the Collector of the District in which the properties are situate. Sixthly, that the sale was at a gross under-value and that the properties could only have been sold by instituting a separate suit. Finally, it is alleged that unless the defendant No. 2, the decree-holder exhausted the remedies against the charge and/or abandoned the security created by the charge, the defendant No. 2 could not proceed to execute the decree by sate and in so far as the charge was created by the decree, the plaintiff had the right to redeem the said charge and such right of redemption was denied to the plaintiff.

5. On or about November 16, 1959, the plaintiff filed Suit No. 89 of 1959 in the Court of the First Additional Civil Judge at Varanashi. Thereafter, an application was made by the defendant No. 1 for committal of the directors of the plaintiff company. A Rule was issued by me on December 9, 1959. The application came up for hearing on February 5, 1960. The directors of the company undertook to Court through their counsel Mr. Niren De to withdraw the Benares suit and to restore possession to the receiver. The defendant No. I, that is, the purchaser without prejudice to his rights and contentions undertook through his counsel not to take the point that by merely withdrawing the suit in Benares Court the directors of the plaintiff company could not file the same suit in this Court, The Benares suit waswithdrawn and the receiver was put back in possession of the plants and machinery. On February 15, 1960, this suit was filed. The defendants Nos. 1 and 2 Contested the suit.

6. The defendant No. 1 is the purchaser. The defendant No. 1 has denied that the properties are embedded to the earth and/or are immovable properties. The defendant No. 1 further contends that the sale was of moveable properties. He denies that the provisions contained in Order 21 have any application to the circumstances of this case. He denies that the Sale Deed required any registration or stamps. He denies that there was sale at an under-value. In addition, the defendant contends that the present suit is barred by res judicata, or by constructive res judicata and/or principles analogous thereto. Finally, the defendant contends that the present suit is not the same suit as was filed by the plaintiff in the Varanasi Court, The contention of the defendant is that by reason of the withdrawal of the Varanasi suit, without liberty to file another suit, the present suit is not maintainable. The defendant further contends that the suit is barred by reason of the provisions contained in Section 47 of the Code.

7. The defendant No. 2, the decree-holder filed a written statement and the contentions raised by the said defendant are similar to those raised by the defendant-purchaser. The additional grounds urged by the decree-holder are, that the plaintiff paid to M/s Sandersons and Morgans, Solicitors for the decree-holder defendant the sum of Rs. 3,000/- in terms of the order dated May 9, 1958, and that in the premises the plaintiff waived objections, if any, and/or is estopped from raising objections. Other additional grounds contended by the decree-holder are that the subject-matter of the suit is the same as that of the Varanashi suit. The decree-holder contends that the plaintiff was allowed to withdraw the Varanshi suit but no leave was granted to file a fresh suit in respect of the subject-matter involved and in the premises the plaintiff is precluded from filing a suit and the same is not maintainable under Order 23 of the Code.

8. Counsel on behalf of the plaintiff indicated that he wanted to lead evidence that the properties were embedded to the earth and/or that the properties were immovable properties. This was stated some time after the argument had commenced. Counsel for the defendants Contended that the plaintiff was not competent to lead evidence unless the plaintiff could satisfy that the present suit was not barred by res judicata and that the orders for sale were nullities. Counsel for all parties stated that it was not necessary to lead any evidence until J decided in favour of the plaintiff on the questions as to jurisdiction of the Court to appoint receiver in execution and as to whether this suit was barred by resjudicata.

9. Counsel for the plaintiff raised three principal contentions: first, that this Court has no jurisdiction to appoint a receiver in respect of properties, movable or immoveable, outside the State of West Bengal. Secondly, the orders passed by this Court were nullities and therefore there cannot be any res judicata. Thirdly, the present suit was the same as instituted in Varanashi Court

10. I shall first deal with the question as to whether this Court has any jurisdiction to appoint receiver in respect of properties outside the jurisdiction of this Court. Counsel for the plaintiff opened his case by contending that this Court could not appoint receiver in respect of immoveable properties outside the State of West Bengal and ultimately contended that the Court would have no jurisdiction with regard to both moveables and in moveables lying outside the State of West Bengal Counsel for the plaintiff conceded that this Court would have jurisdiction to appoint receiver of properties, moveable as well as immoveable, within the State of West Bengal. It has, therefore, to be found as to whether there is jurisdiction of this Court to appoint receiver of properties lying outside the State of West Bengal.

11. The broad contention of counsel for the plaintiff was based on the decision of the judicial committee in Sirdar Gurdyal Singh v. Rajah of Faridkot, 1894 AC 670 that jurisdiction is territorial. Secondly counsel for the plaintiff contended that this Court would have no jurisdiction to appoint a receiver outside the State on 'the ground that such a decision would lack effectiveness. The doctrine of effectiveness was imported by counsel for the plaintiff from Conflict of Laws and the contentions were that in the Republic of India the State of West Bengal and the State of Uttar Pradesh were foreign States to each other. The two general principles of effectiveness and submission are the basis of jurisdiction of the Courts of any country with regard to matters to which they cangive an effective judgment. Dicey stated the two principles to be that the Courts of any Country are considered Ho have jurisdiction: over any matter with regard to which they can give an effective judgment and the Courts of any country are considered by English law to have jurisdiction over any person who voluntarily submits to the Jurisdiction. These two principles of effectiveness and submission have certainly acquired a large measure of authority. The present editors of Dicey's Conflict of Laws state that the two principles do not contain the whole truth. The effective judgment, according to Dicey, means one which is capable of enforcement in the country where it was pronounced. A judgment which is not effective means a decree which the sovereign under whose authority it is delivered has not in fact the power to enforce against the person bound by it and which, therefore, the sovereign cannot, even if he chooses give his Court the means of enforcing. The principle of submission in short means that the person has voluntarily submitted to the jurisdiction of the Court to whose jurisdiction he would not otherwise be subject.

12. Apart from questioning the jurisdiction of this Court on the principle of territorial situation of the property, physical power of this Court to enforce an order and the effectiveness of an order passed by this Court, counsel for the plaintiff contended that the effectiveness of an order was likely to be questioned from the points of view that if strangers interfered with the possession of the receiver and if strangers instituted suits or proceedings against the receiver without taking leave, how could this Court control either such strangers or such suitsinasmuch as both were outside the jurisdiction of this Court. The other question raised by counsel for the plaintiff was that in England a receiver of foreign property is not entitled to get possession as of right by the order itself and that he has to take further steps by way of suit in the foreign Court whereas in the present case the receiver was armed with powers by the order of this Court and he did not have to go to any other Court and the exercise of such powers is beyond the jurisdiction of the Court. Counsel for the plaintiff contended that law of the land might be different and therefore it would not be within the jurisdiction of the Court to arm tbe receiver with authority for sale when the property was situated beyond the territorial jurisdiction of this Court.

13. The jurisdiction of the Court to appoint receivers outside the ordinary original jurisdiction in my opinion is the same whether such appointment is in West Bengal or outside, I do not see as to on what logic or principle it could be contended that this Court would have jurisdiction to appoint receivers within the State of West Bengal but would not have jurisdiction to appoint receivers outside the State of West Bengal.

14. The earliest instance of appointment of receiver is to be found in the case of Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub, 13 Beng LR 91. The plaintiff, resident in Calcutta, sued H, resident in Bombay, but carrying on business by his 'Gomasta' in Calcutta. The suit was to set aside a release executed in Calcutta in respect of certain property situated in Bombay on the allegation that it had been obtained by a false representation. The plaintiff prayed that the release might be declared void and cancelled. A question arose whether the High Court could appoint a receiver of property situated at Bombay. Couch, C. J., said:-

'The Court is asked in the suit to appoint a receiver. Without deciding that whether this Court might Or not appoint a receiver of the property in Bombay, it would certainly be a most inconvenient course to adopt. And I am not prepared to say that this Court could appoint a receiver for the property which is within the jurisdiction of the Bombay Court.'

Counsel for the plaintiff relied on this observation made in 1874 to show that when Clause 12 of the Letters Patent within the first decade of its introduction was being interpreted, this Court was hesitant to appoint a receiver in respect of property lying at Bombay. Counsel contended that such doubt expressed by one of the earliest Chief Justices of this Court was entitled to great respect and was to be followed. Within two years of the expression of opinion by Couch, C. J., Mr. Justice Markby and Mr. Justice Pontifex in the case of Juggodumba Dossee v. Puddomoney Dossee, 15 Beng LR 318 had to consider the question of tbe propriety of the Court in appointing receiver outside the jurisdiction. The suit was brought by some persons appointed as trustees, in the deed of endowment, of certain land against their co-trustees who were in possession. It was alleged that the defendant-trustees ousted the plaintiff's and that breach of trust was committed. Construction of the deed of trust was asked for with a declaration that the plaintiffs were entitled to be 'Sebaits' jointly with the defendants. The land, the subject of the deed, was situated outside Calcutta but all the parties to the suit resided within the local limits of the jurisdiction of this Court. It was held that 'the suit was not one for land or immoveable property and that therefore the Court had jurisdiction to entertain it.' As to the question of receiver, it was held by Markby, J. :-

'It was objected to the terms of the decreethat this Court has no power to appoint a receiverand ought not to have directed an account. It hasbeen the practice of tins Court, where it is necessary to do so in order to enforce its own decree toappoint a receiver in respect of landed propertysituate in the mofussil, and we feel ourselves justified in following that practice.'

15. Counsel for the plaintiff submitted that these two earliest decisions indicated that either the Court would not appoint a receiver outside Bengal or if the Court did appoint one, it would be in the mofussil, it would be in the suburbs. It is difficult for me to predicate the meaning of mofussil. If the facts are looked into, it appears that the land was situated in the district of 24 Paraganas and therefore within Bengal. Counsel contended that these authorities were sufficient to show that there could be no appointment of receiver outside the State.

16. The question came again before the Appeal Court in the decision reported in Promotha Nath v. H. V. Low and Co. : AIR1930Cal502 . It was an appeal from the original order in suit on the Original Side of this Court. Lort-Williams, J., appointed Mr. R.N. Sarkar a Member of the Bar as Receiver to sell certain properties. Lort-Williams, J., said that he was satisfied that the Court had jurisdiction to appoint Receiver of the property outside the jurisdiction oi the Court and to empower him to sell. An appeal was preferred from, the decision and the Appeal was heard by Rankin, C. J. and Ghosh, J., Rankin C. J. dealt with the contention raised in the appeal that the Court had no jurisdiction to appoint Receiver of immovable property outside the local jurisdiction and said that it must always be conceded that this Court has always made such orders (p. 968 of ILR Cal) : (at p. 504 of AIR). The question was finally answered by Rankin, C.J., with the observations appearing at p. 977 of the report (ILR Cal) : (at p. 508 of AIR):-

'The question, therefore, reduces itself into this, whether the decree in question could be executed by sale of the colliery which, admittedly is outside the jurisdiction of this Court on its Original Side. At this distance of time, it is unnecessary to go into the history of the powers of this Court on its Original Side. This Court succeeded the Supreme Court and, on 'its Original Side, it had and has all the powers which the Supreme Court had. The Supreme Court was a Court of equity and under the 18th Clause of the Letters Patent, it assimilated its powers and authority to the Court of Chancery in England. The process of the Court of Chancery was in its origin against the person in order to enforce the decree; but, in time, from experience of the evils attendant on this mode of procedure, it had recourse to a species of process against the property itself by means ofwrits of sequestration. The Supreme Court adopted these processes and exercised its jurisdiction Over immoveable property situate outside the limits of Calcutta. In other words the Supreme Court executed its decree by the appointment of Receiver of immovable property outside Calcutta. This practice was adopted by this Court on its Original side and has been exercised in numerous cases. The view I take, therefore, is that this Court on its Original Side can, in a proper case, appoint a Receiver of property outside its territorial jurisdiction.'

17. The jurisdiction and authority of this Court to appoint a Receiver outside the Ordinary Original Jurisdiction came up again before Panckridge, J, in the case of Jawla Prosad v. Hanumanbux, 40 Cal WN 1065. Reliance was placed on the decision of the Appeal Court already referred to and to a subsequent Bench decision in the case of Hemendra Nath Chose v. Prokash Chandra Chose : AIR1932Cal189 for the proposition that the Court has jurisdiction to appoint Receiver in execution of properties outside the jurisdiction. In the case before Panckridge, J. there was a decree on July 11, 1935. On August 15, 1935 an application was made for appointment of a, Receiver in execution of certain properties in the district of Manbhum and Ranchi. The Court made an order to that effect. That is an instance of appointment o Receiver of properties outside the State of West Bengal. Counsel for the plaintiff invited me not to follow the decision. I am unable to adopt that course.

18. In the case of Kameshwar Singh of Darbhanga v. Anath Nath Rose : AIR1938Cal93 a similar question came up before Panckridge, J. A mortgage was created in favour of the Maharaja of Darbhanga. There was a clause in the mortgage deed that in the event of any suit being brought for recovery of the mortgage money the mortgagee should be at liberty to apply for appointment of a Receiver. The suit was instituted in 1919 and the final decree was made on June 12, 1935, The suit lasted sixteen years before the final decree could be passed. Eventually the decree was passed' by consent. The terms of the decree provided that the decretal amount would be paid with interest and costs on or before December 15, 1935. There was a provision for sale of the mortgaged property by Court. On September 17, 1936 the plaintiff assigned the decree to the wife of the defendant Anath Nath Bose. On February 2, 1937, the assignee applied to be substituted as a plaintiff- The Court however made an order under Order 21, Rule 16 giving leave to the applicant to execute the decree. Thereafter she made an application stating that reasonable sale not being possible the equitable course was for the Court to appoint a Receiver. Panckridge, J. again referred to the decision of the Appeal Court in ILR 57 Cal 964: (AIR 1930 Cal 502) and stated that the consideration which weighed with the Appeal Court appeared to have even greater force in a mortgage suit where the Court specifically in terms decreed that the property should be brought to sale in the event of failure to redeem.

19. The law of England is that the Courtappoints Receivers in respect of property situate in India, Canada, China, Israel, Italy and other places. It is not necessary in order to authorise the Court to appoint a Receiver that the property in respect of which he is to be appointed should be in England (See Mercantile Investment and General Trust Co. v. River Plate Trust Loan and Agency Co., 1892-2 Ch 303). A person resident in England is sometimes appointed Receiver or Manager with, authority to appoint an agent abroad and sometimes a person abroad is appointed Receiver or Manager with directions' to remit to some person in England. Ordinarily the person appointed to act abroad as Receiver or Manager must give the like security of person resident in England. His title is not complete until he has done what is necessary to perfect his title by the law of the country where the property is situate (Re : Maudslay, Sons and Field, 1900-1 Ch. 602 where a receiver was unable to obtain possession of the property because the courts of the country in which it was situate refused to recognise any title other than that of the company, the court ordered the company to appoint attorneys to take possession on behalf of the Receiver. See Re: Huinac Copper Mines, 1910 W. N. 218).

20. Counsel for the plaintiff extracted from these English decisions a principle that the Court in England would appoint a receiver of property abroad but his title had to be perfected in a foreign land. Counsel contended that unless and until the receiver complied with the law in the State of Uttar Pradesh his title was not perfected. I am unable to accept the contention. In the first place, any appointment of Receiver in respect of property situate at Banaras is not an appointment in respect of property abroad. Secondly, the Receiver's title is perfect by the order itself and nothing else remains to be done to perfect his title. Thirdly, Article 281 of the Constitution states that full faith and credit would be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. It is also stated in the Article than final judgments or orders delivered or passed by civil courts in any part of the territory ot India would be capable of execution within that territory according to law. To my mind, this. Article is a complete answer to the question of effectiveness of an order passed by a competent court. This article makes it clear that decrees and order of courts of one State are capable of being executed in another State without the necessity of a suit upon judgment as would be the case with foreign judgments. To accede to the plaintiffs contention that the State of West Bengal and the State of Uttar Pradesh are foreign States to each other, is, in my opinion to introduce into our Constitution fissiparous tendency which will raise walls and barriers within the Republic and will introduce disintegrating elements of rivalry. It is totally against the spirit of the Constitution. To suggest that the State of West Bengal is foreign to the State of Uttar Pradesh or vice versa, in my opinion, is an invasion into the political fabric of the country. Under Article 367 of the Constitution a foreign State means any state other than India. A foreign court under the Code of Civil Procedure means a court situate outside India.Therefore, the courts in India are not foreign to each other. In the Bengal Immunity Co. Ltd. v. State of Bihar, : [1955]2SCR603 it was said that the territory of one State is not a foreign territory in respect of another. Article 261 was relied upon, to justify the view that any taxing power vested in an individual State carried with it incidental implication of enforoeability in any other State within the Union when the very nature of the tax involved it. The republic of India is the sovereign in this country. It) is absurd to suggest that there should be foreign members within the same sovereign.

21. Counsel for the plaintiff contended that the effectiveness of an order of this Court rested on its physical power of its capacity to enforce or execute it. The Code of Civil Procedure is ample proof that a decree of one Court can be executed in another Court. Counsel contended that such a mode of execution would be the only mode. An order which is capable of execution is not a nullity. In the case reported in Bhagwan Shankar v. Rajaram, : AIR1951Bom125 (FB) Chagla, C. J. explained the phrase 'absolute nullity' ass something which can never be enforced in any part of the world under any circumstances. That which is a nullity does not exist and need not be taken notice of. In the Faridkote case the Judicial Committee contemplated that a decree which is a, nullity under International Law can be enforced in the forum by which it was passed provided special local legislation authorised that forum and therefore, in a limited sense the decree was a nullity. Chagla, C. J. said that the decree would be a valid decree but it would not be enforceable in a Court other than the Court where it was passed by reason of International law. The distinction, therefore, is to be noticed between a decree which is an absolute nullity and a decree to which there is an impediment in the matter of its execution. The difficulty in the way of execution does not render a decree a nullity and an irregular execution of a decree will not render a decree a nullity. The Court has jurisdiction to decide rightly or wrongly and a wrong exercise of jurisdiction will not render an order or a decree a nullity. If the Court has jurisdiction to pass an order, as in the present case undoubtedly the Court had, there does not appear any reason as to why or how that exercise of jurisdiction by the Court amounts to either a lack of jurisdiction in the Court itself or a lack of jurisdiction in malting the order,

22. I should, now, refer to the decision in Ranjit Singh Nahar v. Gobardhan Chandra Chandra, 50 Cal WN 447. A suit for money in the Ordinary Original Jurisdiction of this Court was instituted under Clause 12. There was a decree on compromise. By the decree a charge was created upon land outside the jurisdiction and power was given to the decree-holder to enforce the charge by sale in execution without recourse to a fresh suit. In the present case it was similarly provided by the decree that the decree-holder would be at liberty to execute the decree by sale of the properties charged by application in execution in this suit without being obliged to institute any suit in Banaras. It was held that the compromise was lawful and the Court having jurisdiction to try the suit, had the right to make the decree in accordance with the compromise that the property could be sold in execution of the decree. Gentle, J. held in the case referred to above that the agreement of compromise can validly include matters which are not the subject matter of a suit and so long as the agreement relates to the suit, the Court has authority or jurisdiction under Order 23, Rule 3 of the Code to pass a decree in accordance with its terms. There is nothing unlawful for a debtor before a suit to Compromise his debt, or his creditor's claim by agreeing to give a charge over an immovable property situated outside the territory of the Court which would have jurisdiction to entertain a suit by the creditor, if proceedings were instituted for the debt. The giving of a charge upon land outside that territory is not unlawful. Would it become unlawful if such an agreement is made, after a suit for the debt had been instituted in that Court to compromise the claim? Such an agreement was held to be valid and lawful. As to the question of enforcement of charge Gentle, J. said:

'The Court is not without jurisdiction to Order the sale of immovable property lying outside its territory, it can entartain a mortgage suit where part of the hypothecata is situated within and part is outside the jurisdiction and sale of the outlying property can be ordered; similarly with regard to family immovable property in a partition suit. In that case, such property is with respect to the suit; when, as in the present case, a charge upon such property is made in an agreement to compromise the suit, which agreement relates to the suit, the property also must have similar relation.'

Reference was made to the decision in Dinendra Mallik v. Pradyumna Kumar Mallik : AIR1935Cal596 and the decision of the Judicial Committee in Pisani v. Attorney General of Gibraltar, (1874) LR 5 PC 516 in support of the proposition that parties by agreement can arrange their own procedure and give jurisdiction to the Court to adopt that procedure and when the parties have agreed that monies shall be realised by execution, the Court has jurisdiction to proceed by way of execution. If the Court would have no jurisdiction to entertain the suit the parties could not by agreement confer jurisdiction but if the Court had jurisdiction with regard to the suit, the parties can give jurisdiction to the Court as to how their money would be realised by execution. In Mannalal Srimal v. Nehalchand Samsukha, 41 Cal WN 1133 Panckridge, J. observed that although a suit for sale of property would have been dismissed on the ground of want of jurisdiction, inasmuch as no property was situate within the local limits of the jurisdiction, it would be no ground for refusing to make an order for sale in execution of the decree.

23. Counsel for the plaintiff contended that the jurisdiction of this Court to appoint a Receiver in execution was also to be tested as to its effectiveness from the points of view as to whether this Court could control persons who would interfere with the possession of the Receiver orwhether this Court could control suits which would be instituted against the Receiver without taking leave for institution of such suits. As to interference by persons with the possession of the Receiver counsel for the plaintiff contended that this Court could not punish persons who would commit contempt by interfering with the possession of the Receiver. Reliance was placed on the decision reported in Kilachand Devchand and Co. v. Ajodhya Prasad Sukhanand, ILR 59 Bom 10 : (AIR 1934 Bom 452); In re Benjamin Guy Horniman, 46 Bom LR 94: (AIR 1944 Bom 127), State v. Padma Kant Malviya, : AIR1954All523 (FB) to show that the Bombay view expressed by/ Beaumont, C. J. had been accepted by Allahabad High Court. The Bombay view in that case is that the Court could not punish for contempt committed outside the jurisdiction of the Court. The question is now settled under the Contempt of Courts Act and there is no difficulty as to jurisdiction. As to the other question of dealing with the suits instituted against the Receiver without leave of Court if the matter were brought before the Court it would deal with it. If any application is made in this Court restraining a person from dealing with or proceeding with such a suit the Court could in appropriate cases also grant an injunction. Be that as it may, it is clear in my view that the existence of jurisdiction and the exercise of jurisdiction, are both present where the Court appoints a Receiver in execution of a decree as in the present case. The root of the jurisdiction is founded upon the decree. The decree is unassailable. The enforcing of the decree is a part of the decree and agreement between the parties. It is because of the decree and the agreement embodied therein that this Court has executed the decree. In my opinion the decree is executable by this Court and orders in execution are within the jurisdiction of this Court. Such orders are effective as well.

24. The second question which arose in this suit was whether the present suit is barred by res judicata. It is necessary to set out certain facts. The Benaras Ice Factory in the petition for leave to appeal to the Supreme Court contended in paragraph 18 thereof (see page 48 part 11, Ex. A) that the plants and machinery were permanently embedded to the earth and were situate outside the jurisdiction and this Court in execution of a decree for money could not appoint a Receiver in execution. In the several grounds for leave to appeal ground No. 4 appearing at page 52 in Ex. A contains a similar ground that the plants and machinery being situate in Benaras this Court had no jurisdiction to sell the property outside the territorial jurisdiction of this Court. The purchaser in the affidavit affirmed on May 14. 1959 in paragraph 137 appearing at page 68 of Ex. A denied each and every allegation of the plaintiff Ice Factory that the plants and machinery was immovable property. In the affidavit in reply affirmed by Gopal Raj Mukherjee on May 16. 1959 appearing at page 77 of Ex. A it is reiterated that the Court had no jurisdiction to sell in execution property situate outside the State of West Bengal and that the properties were immovable. The plaintiff Ice Factory filed another petition for special leave before the Supreme Court. In that petition at page 82 following (Ex. A) the plaintiff urged in ground No. 18 identical grounds first that the properties were immovable., secondily, that the Court had no jurisdiction to order sale outside the State of West Bengal. The other ground urged in the petition for special leave was marked as No. 4 appearing at page 91 that the plants and machinery being situate at Benaras the Court had no jurisdiction and that there was absolute want of jurisdiction and the sale was nullity. At no other stage did the plaintiff take any of these points. It is in the context of these events that the question of res judicata has to be tested. Counsel for the plaintiff relied on the decisions reported in Parsotam Gir v. Narbada Gir, 26 Ind App 175 (PC); Hara Namin Bera v. Sridhar Pande, AIR 1919 Cal 974; Ledgard v. Bull, 13 Ind App 134 (PC) and Krishna Kishore De v. Amarnath Kshettry 24 CWN 633 : (AIR 1920 Cal 131) in support of the well settled propositions that consent does not confer jurisdiction, secondly that the question which is left undecided will not give rise to res judicata and thirdly where there is total lack of jurisdiction there is no res judicata.

25. The question in the present case is entirely different. In the first place it was never contended that the properties were immovable until the plaintiff Ice Factory made an application for leave to appeal to the Supreme Court. Secondly this point that is urged in the petition was never pressed by the plaintiff Ice Factory. Either it was not pressed or it was abandoned or perhaps counsel did not think it to have to contain any substance. Counsel on behalf of the defendants relied on the decision of the Appeal Court Newton Hickie v. Official Trustee of West Bengal, : AIR1954Cal506 . It has been held there that when the plea of res j'udicata is founded it can be successfully taken either on the principle of actual decision or ot constructive res judicata. In the present case counsel for the defendants invoked the doctrine of constructive res judicata, A matter which is deemed to have been in issue constructively, would not. in the very nature of things, have been actually heard and decided. It was once- thought that the rule of constructive res judicata did not apply to the question of jurisdiction. But the matter has now been set at rest by the decision of the Supreme Court in Mohanlal v. Benoy Kishna, : [1953]4SCR377 . The decision in Newton Hickie's case, : AIR1954Cal506 is important as an authority for the proposition that where a question of jurisdiction depends upon the existence of a fact and a party to whom it was open to prove that fact does not do so he is thereafter prevented by the doctrine of constructive res judicata from agitating the same. The question as to whether a particular property was moveable Or immovable was one of fact which it was open to the Benaras Ice Factory to prove affirmatively and they not having taken any steps to prove that or they having abandoned that are bound by the doctrine of constructive res judicata embodied in Explanation 4 to Section 11 of the Code. In fee present case counsel for the defendants also contended that a mere bald assertion by the Ice Factory that the plants and machinery was immoveable property was not by itself sufficient to entitle the plaintiff to contend that. Counsel on behalf of the purchasers relied on an unreported decision Jnan Chand Chugh v. Jugal Kishore Agarwal in Suit No. 659 of 1959 (Since reported in : AIR1960Cal331 ) in support of the proposition that plants and machinery were not immoveable property merely because they were fastened. It is not necessary in the present case to decide if the plants and machinery were in fact immoveable property. These are questions of fact and it is the contention of the defendants that the plaintiffs are barred by the doctrine of res judicata, from agitating such facts. Dealing further with the question that even if it were held that the machinery was immoveable property, G.K. Mitter, J. held in Jnan Chand's case, Suit No. 659 of 1959: : AIR1960Cal331 .

'If the former suit was one for recovery of money secured by a charge or mortgage of moveable property situate outside the territorial jurisdiction of this Court the suit would still be a good suit in view of the allegation in the plaint that a part of the cause of action for the suit, viz., the lending of the money and the execution of the instrument of mortgage had taken place within such jurisdiction'.

In the present case the suit was well constituted and the Court had jurisdiction to entertain the suit. The decree is unassailable. It was a decree by consent. It has been held that it is lawful and valid to provide for execution of the decree by creating a charge on property outside the jurisdiction and for sale of such property in execution. At no stage save and except at the time of preferring appeal to the Supreme Court did the plaintiff in this suit contend that the Court had no jurisdiction and even at the stage of appeal tg the Supreme Court that point was either not pressed or abandoned. It was open to the defendant to contend that the property in respect ot which a declaration of charge was sought for was immoveable property. If the defendant does not prove that it was immoveable property, would it still be open to the defendant to contend after the defendant had gone through the entire gamut of proceedings ending in the Supreme Court and having lost at each and every round to start a new litigation afresh on an identical ground which it was open to him to contend and which he in fact did raise at some stage but did hot either press for decision or failed to prove or abandoned.

26. The doctrine of res judicata is based on the principle that there must be a finality in litigation. The Supreme Court in Mohonhl's case, : [1953]4SCR377 came to the conclusion that the doctrine of res judicata applied to execution proceedings. There were two judgments -- one delivered by Mr. Justice Das and the other by Mr. Justice Ghulam Hasan. Mahajan, J. said that the decisions could be rested on either of the grounds raised by Das, J. or Ghulam Hassan, J. Mr. Justice Ghulam Hasan dealt with the question of res judicata. The facts in short were that a decree was passed by the Calcutta High Court in 1923. It was transferred by this Court tor execution to Asansol Court in 1931 with a certified copy of the decree. The decree-holder applied for execution. The application was dismissed for default in 1932. The Asansol Court sent to the Calcutta High Court certificate under Section 41 of the Code stating that the execution case was dismissed. Neither the copy of the decree nor a covering letter was sent to the High Court. The degree-holder again applied for execution in November 1932. A certain colliery was proclaimed for sale on April 3, 1933. Meanwhile, on the application of the decree-holder the High Court passed an order on March 27, 1933 discharging a Receiver who had been appointed in 1926 and granting liberty to the Court of Asansol to sell the colliery in execution by public auction. After the order was communicated to Asansol Court, it sold the colliery in auction. The sale was set aside and the colliery was resold. Again the sale was set aside and after the property was sold for the third time, the judgment debtor applied under Section 47 and Order 21, Rule 90 of the Code for setting aside the sale on the ground that after the dismissal of the execution case in 1932 and the transmission of a certificate under Section 41, the Asansol Court had no jurisdiction to execute the decree. In that context of events, Ghulam Hasan, J. said:

'The failure to raise such an objection which went to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructive res judicata after the property has been sold to the auction purchaser who has entered into possession.'

27. I should at this stage state that the conduct of the plaintiff in moving applications in this Court, and in pleading time for payment of money is an additional reason in coming to the conclusion that the plaintiff Ice Factory is bound by the doctrine of res judicata. It is well settled that where a person takes advantage of an order and tries to obtain an order founded thereon, he cannot turn round and say that the order was one without jurisdiction; the ratio is that it a person invites the jurisdiction of a Court he cannot thereafter turn round and say that the Court has no jurisdiction. In the present case, the plaintiff Ice Factory invited the Court to extend the time for payment. Such application was based upon the decree of this Court, and the order of the executing Court. The decisions reported in Ex parte Pratt, (1884) 12 QBD 334 and Ex parte May. (1884) 12 QBD 497 are authorities for the proposition that a person who invites the jurisdiction of the Court cannot thereafter turn round and impugn the same.

28. Counsel for the plaintiff contended that this Court had no jurisdiction to order sale and that the decree should have been transmitted. There is a distinction between total in competency and a mere irregularity in the exercise and assumption of jurisdiction, In the present case the decree invested this Court with full jurisdiction to execute it. If there had been any objection to execution the judgment debtor should have objected. It has been held by the Supreme Court in the case of Merla Ramanna v. Nallaparaju, : [1955]2SCR938 that where a sale in execution of the decree is impugned on the ground that it is not warranted by the terms thereof that question could be agitated only by an application under Section 47 of the Code and not in a separate suit.

29. The last question which was raised was whether the present suit is different to the one instituted at Banaras. Counsel for the purchaser defendant contended that the suit was different. Counsel for the decree-holder defendant contended that the suit was the same. A perusal of the plaint will show that the plaint in this suit is different. The parties are different, the reliets claimed are different. In the body of the plaint allegations have been made which did not exist in the earlier plaint. When Mr. Niren De, counsel for the Ice Factory stated that his clients would withdraw the suit in Varanashi, Counsel for the purchaser gave an undertaking to this Court that he would not press the point that the Ice Factory merely by withdrawing the plaint in Varanashi Court was precluded from filing the self-same suit. Counsel for the purchaser rightly contended in my view that he would be released from the undertaking immediately the Ice Factory made a breach of the promise on the basis of which the undertaking was given.

30. Counsel for the decree-holder defendant on the other hand contended that the substance of the suit and not the form was to be looked at and he relied on the decision reported in Bhondu v. Raj Singh : AIR1948All60 in support of the proposition that the test as to whether the cause of action was the same was whether the same evidence was required in berth the suits. Perhaps in a broad sense it might be described as the same suit. But when I am to judge the nature of the suit on the basis of undertaking given by the purchasers, I should take a strict view of the pleadings and it is on that basis that I have come to the conclusion that the present suit is different.

31. Counsel for the purchaser raised a further contention that the plaintiff in the present suit wanted possession and if the contention of the plaintiff Ice Factory were that the property was immoveable, the plaintiff should be out of Court on that footing alone. There is substance in that and if the matter came up for trial and if it transpired that the property were really immovable and if it were left Open to the plaintiff to agitate and prove that, the suit would have been dismissed even if the plaintiff instituted the suit with leave under; Clause 12 of the Letters Patent. The reason is obvious that leave under Clause 13 of the Letters Patent could not invest this Court with jurisdiction to try a Suit for land if the land was situated outside the jurisdiction of this Court, whether the cause of action in its entirety or part arose within the jurisdiction of this Court.

32. The plaintiff is now on the horns of a dilemma as to whether the suit is the self-same suit or a different one. Under Order 23 of Code, the plaintiff may withdraw his suit and where he does so without the permission referred to in sub-rule (2), he shall be precluded from instituting any fresh suit in respect of such subject matter or such part o the claim. It is indisputable that there was no leave granted by the Varanashi Court to institute a fresh suit. The plaintiff therefore is exposed to the peril of being precluded from maintaining the suit by reason of provisions contained in Order 23, Rule 1. As far as the decree-holder is concerned, it is stated that there was no undertaking given by it. The minutes were produced. The minutes show that no undertaking was given by counsel for the decree-holder. It is also any recollection that counsel for the decree-holder did not give any undertaking. Mr. Pyne appeared for the decree-bolder and the entire contest was between the purchaser on one side and the Banaras-Ice Factory on the other. In that view of the matter, the decree-holder is also entitled to take advantage of the provisions of Order 23, Rule 1.

33. As far as the plaintiff is concerned it appears that the plaintiff cannot extricate itself out of the provisions of Order 23, Rule 1.

34. The plaintiff has lost on each and every point contended. The suit is dismissed with costs. Certified for two counsel. The plaintiff is to pay costs to each of the defendants appearing by counsel. Certified for two counsel for each of such appearing defendants. Stay asked for and is refused. All interim orders are vacated. Each of the defendants is entitled to all reserved costs.

35. This is a case where I am unable to grant any stay. There is no merit in the application for stay. The plaintiff has been harassing and oppressing the decree-holder and the purchaser for years. The plaintiff has lost at each and every stage. The plaintiff did not rest content there. The plaintiff went to the Supreme Court. Having lost that round the plaintiff started' another round at Varanashi. When the plaintiff realised that the suit at Varanashi Court was impossible to be maintained in view of the 1926-Act, which precluded any other Court from questioning the validity of a judgment of the High Court, and when the plaintiff tendered unqualified apology, I accepted such apology. The plaintiff did not rest content there. The plaintiff wanted to institute the self-same suit in this Court. That is why I took this suit at the earliest opportunity in order to prevent any injustice to any party. The purchaser has been kept out of possession. Several attempts were made to interfere with the possession of the. Receiver. Having considered each and every 'point I have no doubt and hesitation in my mind that the plaintiff has no merit in the case. I therefore reject the application for stay.


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