Hansraj Nathu Ram Vs. Lalji Raja &
Sons of Bankura [1962] INSC 173 (30 April 1962)
30/04/1962 KAPUR, J.L.
KAPUR, J.L.
SARKAR, A.K.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION: 1963 AIR 1180 1963 SCR Supl. (2)
619
CITATOR INFO :
R 1971 SC 974 (1,14,15,31)
ACT:
Execution of Decree-Transfer to a court where
Indian Code of Civil Procedure not extended-If executable-Foreign decree-
Foreigners' Act, 1946 (31 of 1946), s. 2(a) (iii)-Code of Civil Procedure (Act
V of 1908), ss. 38, 39, 43, 44.
HEADNOTE:
A decree passed in favour of the respondent
by a Subordinate judge of West Bengal was transferred for execution on August
28, 1950 to the Court of the Additional District judge of Morena in what was
originally Gwalior State and subsequently became a part of the United States of
Madhya Bharat and after the Constitution State of Madhya Bharat. On the date
when the decree was transferred, the 620 Courts in Madhya Bharat were governed
by the Indian Code of Civil Procedure as adapted by the Madhya Bharat Adapt
action Order of 1948 but the power of transfer by the Court of Bankura was
governed by ss. 38 and 39 of the Indian Code of Civil Procedure. On the
judgment debtor's objection the application for execution was dismissed but the
appeal against that order was allowed by the High Court. The appellant
contended that the Court had no power to transfer the decree under s. 38 to the
Court in Morena. The question was with regard to the applicability of the
Indian Code of Civil Procedure and whether the decree sought to be executed was
a decree of a foreign Court or not.
Held, that the Court at Morena not being a
court, to which Indian Civil Procedure Code applied, the decree could not be
transferred to it under the Indian Code of Procedure and ss. 38 and 39 were
inapplicable to justify such a transfer.
The Indian Civil Procedure Code was not
extended to Madhya Bharat till April 1, 1951, by the Act 2 of 1951. The decrees
of foreign courts were under the Gwalior Court of which Morena was a part, not
executable under s. 233 which required a suit to be brought on the basis of
foreign decree under not the Madhya Bharat Court of Civil Procedure.
Held, further, that the Foreigners Act is not
relevant for the purpose of finding out whether the decree was a foreign decree
or not because the execution of decree is governed by the provisions of the
Code of Civil Procedure and not by Foreigners Act.
A section of an enactment has to be
interpreted as it is and a Court cannot read it as if its language was different
from what it actually is.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 173 of 1956.
Appeal from the judgment and order dated
November 15, 1954, of the former Madhya Pradesh High Court at Gwalior in C. F. A.
No. 9 of 1951.
Ganpat Rai, for the appellant.
N. S. Bindra and D. D. Sharma for the
respondent.
621 1962. April 30. The Judgment of the Court
was delivered by KAPUR, J.-This is an appeal against the judgment and order of
the High Court of Madhya Bharat at Gwalior on a certificate of that Court under
Art. 133 (1) (c) and like Civil Appeal No. 24 of 1961, raised the question of
the applicability of the Indian Code of Civil Procedure and the question
whether the decree sought to be executed was a dec- ree of a foreign Court or
not. It is a reverse case in the sense that the decree sought to be executed
was passed by a Court in West Bedford province of what was British India.
In the appeal the appellant is the
judgment-debtor and the decree-holder is the respondent.
On December 3, 1949, a decree was passed in
favour of the respondent by the Subordinate Judge, Bankura, in the West Bengal
and a certificate of transfer was applied for on July 27, 1950, granted on
August 8, 1950, and was transferred for execution On August 28, 1950. On
September 25, 1950, the decree-holder took out execution in the Court of the
Additional- District Judge, Morena, in what was Gwalior State and subsequently
became a part of the United State named Madhya Bharat and after the
Constitution the Part B State of Madhya Bharat. On the judgment-debtor's
objection the application for execution was dismissed on December 29, 1950, but
the appeal against that order was allowed by the High Court on November 15,
1954.
It is unnecessary to set out the various
sections of the Indian Code of Civil Procedure or to trace the various steps by
which as. 43 and 44 were amended in that Code ;- that we have done in C. A. No.
24 of 1960 decided today. It was contended before us by the judgment-debtor
that 622 the Court had no power to transfer the decree under s. 38 to the Court
in Morena. On the date when the decree was transferred the Courts in Madhya
Bharat were governed by the Indian Code of Civil Procedure as adapted by the
Madhya Bharat Adaptation Order of 1948 but the power of transfer by the Court
at Bankura was governed by ss. 38 and 39 of the Indian Code of Civil Procedure.
Under the Code, the Court to which the decree could be transferred was one
established in what was British India because the Code extended to the
territories of what was British India and it was not till, the coming into
force of Act 11 of 1951 on April 1, 1951, that the Indian Code was applied to
the "Territories of India" which comprised Parts A, B and C State.
It was contended by Mr. N. S. Bindra counsel
for the respondent that under ss. 38 and 39 of the Indian Code of Civil
Procedure a decree could be sent for execution to any Court, the expression
"Court" being understood as a place where justice was administered
and for this reliance was placed on Manawala Goundan v. Kumarappa Reddy (1)
where the word "Court" in s. 622 of the old Civil Procedure was
defined as a place where justice is judicially administered ; but that was in a
case where it had to be determined whether a District Registrar was Court for
the purpose of Civil Procedure Code. The definition as given in that case is
not of any help in determining the question now before us because what we have
to see is whether the Court at Morena even though it administered justice
judicially was covered by the word "Court" in s. 38 or not. As we
have said above "Court" in the section means a court to which the
Indian Code of Civil Procedure applies and not any Court.
Similarly at the relevant time in es. 40 and
42 of the Indian Code of Civil Procedure "Court" nece- I. L. R. 30
mad. 326.
623 ssarily meant a Court to which Indian
Civil Procedure Code applied i. e., a Court in what was British India. The
Court at Morena not being such a Court the decree could not be transferred to
it under the Indian Code of Civil Procedure and ss. 38 and 39 were inapplicable
to justify such a transfer.
The decree, it was then argued, was
executable under s. 43 of the Indian Civil Procedure Code as amended by the
Adaptation of Laws Order of June 5, 1950, which had retrospective effect as
from January 26, 1950. After the amendment that section reads :- "S 43 Any
decree passed-
(a) by a Civil Court in Part B State, or
(b).....................
(c).....................
may, if it cannot be executed within the
jurisdiction of the Court by which it was passed, be executed in manner herein
provided within the jurisdiction of any Court in the States".
The argument was that in the present case the
expression "in a Part B State, 'should be read as if the expression was
"in a Part A State". This again is not permissible for us. - Section
43 has to be interpreted as it is and a Court cannot read it as if its language
was different from what it actually is. It is not permissible for this court to
amend the law as suggested. Besides the Indian Civil Procedure Code was not
extended to Madhya Bharat till April 1, 1951, by Act 11 of 1951. The decrees of
foreign courts were, under the Gwalior Code of which Morena was a part,
executable neither under s. 233 which required a suit to be brought on the basis
of foreign decrees nor under the Madhya 624 Bharat Code of Civil Procedure. The
decree therefore could not be executed in Morena under s.43 of the Indian Code
of Civil Procedure.
It was next argued that the appellant firm
was not a foreigner because it did not fall under the foreigners Act (Act 31 of
1946) and reference was made to s. 2 (a.) (iii) which was amended by Act 38 of
1947 on December 15, 1947 ;
but this Act is not relevant for the purpose
of finding out whether the decree was a foreign decree or not because the
execution of decrees is governed by the provisions of the Code of Civil
Procedure and not by the Foreigners Act.
Under the former a decree can be executed by
a Court which passed the decree or to which it was transferred for execution
and the decree which could be transferred has to be a decree passed under the
Code and the Court to which it could be transferred has to be a Court which was
governed by the Indian Code of Civil Procedure. But in the present case it was
not transferred to a Court which at the time of the transfer was governed by
the Indian Code of Civil ,Procedure and therefore the transfer was ineffective
for the purpose of execution and as we have said above, s. 43 of the Indian
Code was inapplicable before Act 11 of 1951 to the State of Madhya Bharat. It
is not necessary to go into the other questions raised if the above two
questions are decided against the respondent.
We therefore allow this appeal, set aside the
judgment and order of the High Court and restore that of the executing court.
The appellant will have its costs in the court.
Appeal allowed.
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