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Sachindra Nath Vs. Lilabati Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1920 of 1951
Judge
Reported inAIR1953Cal580,57CWN522
ActsChandernagore (Adaptation of Laws) Order, 1950 - Section 7; ;Bengal, Agra and Assam Civil Courts Act, 1887
AppellantSachindra Nath
RespondentLilabati Das
Appellant AdvocateHari Prasanna Mukherjee and ;Satya Prosad Banerjee, Advs.
Respondent AdvocateApurba Charan Mukherjee and ;Samarendra Nath Banerjee, Advs.
Cases ReferredSankar Mouli Dutta v. The State
Excerpt:
- .....be done before the commencement of this order. the schedule specifies the bengal, agra and assam civil courts act of 1887 and civil p.c., of 1908. by notification no. 133 e. u. r. dated 1-5-1950 the central government in exercise of powers conferred by section 4, bengal, agra and assam civil courts act, appointed the district judge, hooghly ex-officio to be the district judge, chandernagore and sree k.m. roy to be the munsif with jurisdiction extending to the whole of chandernagore. by another notification dated 21-10-1950 published in the chandernagore gazette dated 25-11-1950 the central government in exercise of powers conferred by sections 4, 6 and 13 of the bengal, agra and assam civil courts act 1887 appointed sree k.m. roy as subordinate judge, chandernagore. it is clear,.....
Judgment:

Lahiri, J.

1. On 12-4-1950, the French Court at Chandernagore passed a decree in favour of the petitioner Sachindra Nath Das against the opposite party Lilaboti Dass. This decree was notified to the opposite party presumably under Article 158, French Civil P.C., on 3-8-1950 and the opposite party filed her opposition to the decree on 30-8-1950, in the Court of the Subordinate Judge, Chandernagore which succeeded the French Court. This opposition was registered as Suit No. 38 of 1950 of the Court of the Subordinate Judge. Chandernagore. As the result of the trial, the learned Subordinate Judge came to the conclusion that there was no reason for setting aside the decree and dismissed the suit. Against that decree Lilaboti Das filed an appeal to the District Judge of Chandernagoro. The learned District Judge has held that Order 9, Rule 13, Indian Civil P.C., docs not apply to the case which should be governed by Article 158., French Civil P.C. He has accordingly allowed the appeal and remanded the suit to the trial Court for decision under Article 158, French Civil P.C. Against that decision, Sachin-dra Nath Das in whose favour the decree was passed has obtained this Rule and it has been contended in support of the Rule that the Indian Courts established at Chandernagore have as yet no jurisdiction to administer the French Law.

2. It appears that in exercise of powers conferred by Section 4, Foreign Jurisdiction Act, (Act 47 of 1947) the Central Government promulgated on 1-5-1950 an order called the Chandernagore (Adaptation of laws) Order, 1950 which came into operation on 2-5-1950. Section 7 of this Order provides 'inter alia' that all laws in force in Chandernagore immediately before the commencement of this order which correspond to the enactments specified in the schedule will cease to have effect save as respects things done or omitted to be done before the commencement of this Order. The schedule specifies the Bengal, Agra and Assam Civil Courts Act of 1887 and Civil P.C., of 1908. By Notification No. 133 E. U. R. dated 1-5-1950 the Central Government in exercise of powers conferred by Section 4, Bengal, Agra and Assam Civil Courts Act, appointed the District Judge, Hooghly ex-officio to be the District Judge, Chandernagore and Sree K.M. Roy to be the Munsif with jurisdiction extending to the whole of Chandernagore. By another Notification dated 21-10-1950 published in the Chandernagore Gazette dated 25-11-1950 the Central Government in exercise of powers conferred by Sections 4, 6 and 13 of the Bengal, Agra and Assam Civil Courts Act 1887 appointed Sree K.M. Roy as Subordinate Judge, Chandernagore. It is clear, therefore, that as a result of the promulgation of the Chandernagore Adaptation of laws) Order and the notifications made thereunder the French Court at Chandernagore ceased to exist with effect from 2-5-1950 and was substituted by the Court of the Subordinate Judge and District Judge appointed by the Central Government of India.

3. The decree in the present case was passed on 12-4-1950 at a time when the Chandernagore (Adaptation of laws) Order had not come into operation. The procedure for setting aside the decree will therefore be governed by the French law under the saving clause of Section 7 of the aforesaid order. The opposition was filed by the opposite party on 30-8-1950 in the Court of the Subordinate Judge appointed by the Government of India under the Chandernagore (Adaptation of laws) Order. The question, therefore, is whether the Indian Courts appointed by the Government of India under the Chandernagore (Adaptation of laws) Order had jurisdiction to try the case under the French law. In the case of -- 'Sankar Mouli Dutta v. The State', : (1952)56CALLT500(HC) (A), a Special Bench of this Court held that Criminal Courts constituted and empowered under the Criminal Procedure Code have no jurisdiction to try an offence under Article 437(1), French Penal Code. In that case, an offence was alleged to have been committed before the commencement of the Chandernagore (Adaptation of Laws) Order and was therefore triable under the French Penal Code. But the enquiry resulting in an order of commitment to the Court of Sessions was made by a Magistrate empowered under the Criminal Procedure Code and the Sessions trial was proceeding before a Sessions Judge emnowered under the Criminal Procedure Code. The Special Bench held that neither the Committing Magistrate had jurisdiction to make the order of commitment northe Sessions Judge jurisdiction to try the offence under the French law.

4. The facts of the Special Bench case cannot be distinguished from the facts of the case before us. Applying the principle of that case we hold that neither the Court of the Subordinate Judge nor the Court of the District Judge which was constituted under the Bengal, Agra and Assam Civil Courts Act has at present any jurisdiction to try the case under Article 158, French Civil P.C. We accordingly make this Rule absolute and set aside the orders made by the District Judge as well as by the Subordinate Judge.

5. We are informed by the learned Advocate for the opposite party that under the draft treaty between the Government of India and the French Government the opposite party will have a right to proceed with the suit in an Indian Court. If that be so, it will be open to her to take proper steps if and when that treaty comes into operation. Under the present law no action can be taken by the opposite party. The orders of the Courts below are accordingly set aside, but there will be no order as to costs of this Rule.

Das Gupta, J.

6. I agree.


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