Roshanlal Kuthiala & Ors Vs. R.B.
Mohan Singh Oberai [1974] INSC 213 (17 October 1974)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
KHANNA, HANS RAJ BEG, M. HAMEEDULLAH
CITATION: 1975 AIR 824 1975 SCR (2) 491 1975
SCC (4) 628
CITATOR INFO:
RF 1990 SC 334 (34) RF 1990 SC1480 (78)
ACT:
Code of Civil Procedure (Act 5 of 1908) s.
13-Enforcement of foreign judgment.
Limitation Act (9 of 1908), s. 14-Scope of.
Practice-Application of equity by Indian
Courts.
HEADNOTE:
The appellant agreed to sell his hotel to the
first respondent and the first respondent paid an earnest money of Rs. 5 lack.
Alleging a breach of contract the first respondent filed a suit in the
sub-court Lahore, for return of the earnest money, and the suit was decreed.
The appellant filed an appeal to the High Court at Lahore and the execution of
the decree was stayed on condition of his depositing Rs. 3 lacs. The appellant
deposited the amount but the decree holder (first respondent), on objection by
the appellant, was not allowed to withdraw the amount before the disposal of
the appeal. The appeal was allowed by the High Court, and thereafter, the
appellant moved the High Court for refund of the deposit made by him. The
Pakistan (Administration of Evacuee Property) Ordinance, 1949, having come into
force by then, notice was given by the High Court to the Custodian and the
Custodian prayed for staying the return of the amount on the ground that the
appellant was an evacuee and also for the payment of the amount in deposit to
the Custodian. The amount however continued to be in deposit in court. The
respondent appealed to the Federal Court of Pakistan against the Judgment of
the High Court and his appeal was allowed. The amount. however, continued to be
in the Pakistan Treasury. In January, 1954, the appellant filed a petition in
the High Court of Lahore praying, that the amount of Rs. 3 lacs deposited by
him may be directed to be adjusted towards the satisfaction of the decree as
orginally intended, and that his request for the refund may be treated as withdrawn,
and that the objections filed by the Custodian dismissed. As a result of
political understanding between the two countries, court deposits were agreed
to be transferred to the respective countries. On the strength of that law in
Pakistan the respondent moved the High Court at Lahore for transfer of the
deposit of Rs. 3 lacs to the concerned officer or authority in India on the
ground that the money was deposited in part satisfaction of his decree. The
High court dismissed the application but the Supreme Court of Pakistan allowed
it and directed the transfer of the deposit to the concerned authority in India
after dismissing the Custodian's objections. But the deposit continued in the
Pakistan Treasury.
The respondent thereupon moved the High Court
of Punjab in India for levying execution of his decree and invoked the
provisions of the Indian Independence (Legal Proceedings) Order, 1947. The High
Court dismissed the execution application. In appeal the Supreme Court of lndia
heid that the forum for enforcement and the process for getting relief and
execution of the foreign decree was a suit under ss. 9 and 13, Civil Procedure
Code, in the Competent Court. The respondent thereupon filed a suit for
recovery of the decree amount based on the foreign judgment in his favour and
the trial court and the High Court, in appeal, decided in his favour.
In appeal, to this Court, it was contended by
the appellant : (1) that the decree of the Federal Court of Pakistan which wag
the foundation of the action in India had vested automatically in the Custodian
under the Pakistan Ordinance of 1949, and that therefore, the respondent had no
right to recover on the basis of the foreign judgment; (2) the six years period
available under art. 117 of the Indian Limitation Act, 1908 for a suit upon a
foreign decree having expired long ago the suit was barred by limitation; and
(3) in any event the sum of Rs. 3 lacs already deposited to the credit of the
decree in the Lahore Court, having been actually adjusted towards the decree,
the appellant would be liable only for a sum of Rs. 2 lacs together with
subsequent interest.
492 Allowing the appeal on the last ground,
HELD : 1 (a) A foreign judgment is
enforceable by a suit upon the judgment and it shall be conclusive as to any
matter thereby directly adjudicated upon between the same parties subject to
the exceptions enumerated in g. 13, C.P.C. In the present case, the judgment of
the Pakistan Court was in favour of the respondent, and none of the nullifying
clauses in that section being attracted, it is conclusive under g. 13.
[50OG-H] (b Since the decree was not treated
as evacuee property under s. 3 of the Pakistan Administration of Evacuee
Property Act, 1957, it is not evacuee property, and therefore, did not vest in
the Custodian. The Custodian never demanded any right qua the
decree-holder-respondent nor as stepping into his shoes. His claim in the
Lahore court was that the appellant became an evacuee and that the amount
should not be returned to him, and, at no stage did the appellant even contend
that the respondent wag not entitled to sue for the amount and that the
Custodian alone had such right. [50IF-H] (2) Section 14 of the Limitation Act,
1908, saves the regpondent's suit from the bar of limitation. [502 D] It is a
sine qua non of a claim under g. 14 that the earlier proceding is prosecuted in
good faith; and any circumstances, legal or factual, which inbibits entertainment
or consideration by the court of the dispute on the merits comes within the
scope of s. 14. Section 14 is also wide enough to cover period’s coered by
execution proceedings. In the present case, the launching of execution of the
Pakistani decree in India was done after consulting two leading Indian lawyers
and the circumstance shows the bona fides of the respondent; and the
prosecution of the execution proceedings in the High Court of Punjab was
repelled, because and only because, the institution of such proceedings on the
execution side was without jurisdiction.
The question thus was one of initial jurisdiction
of the Court to entertain the execution proceedings. [502E-H; 503AC] Raghunath
Das v. Gokal Chand and Another [1959] S.C.R. 817 at 818, India Electric Works
Ltd. v. James Mantosh & Anr. [1971] 2 S.C.R. 397 at 401 and The Associated
Hotels of India Ltd. and Another v. R. Y. Jodha Mal Kuthalia [1961] 1 S.C.R.
259 at 272 referred to.
(3)In India, the historical and artificial
distinction between equity and law does not exist and equity itself is enforced
as law with all its built in limitations. Our equitable jurisdiction is not
hidebound by tradition and blinkered by precedent, though trammelled by
judicially approved rules of conscience. When law speaks in positive terms
equity may not be invoked against it, but, while applying the law, the court can
and must ameliorate unwitting rigours inflicted by legaligms, where there is
room for play by the use of equity. [503H; 507G; 509C-D] In the present cage,
neither party was blameworthy and indeed both were agreed at a stage that the
deposit should go in satisfaction of the decree affirmed by the final court in
Pakistan. The decree holder had laid claim to the sum to the exclusion not only
of the Custodian but also of the judgment-debtor. Taking a pragmatic view of
the justice of the case, the Court has to see who should bear the loss in these
circumstances. Although the courts and the parties assumed that the court
deposit as specially earmarked towards the discharge of the decree, because of
supervening political upheavals, and eventual disregard of the court's order by
the Pakistan Government, the decree-holder respondent could not withdraw the
sum. The equity arises largely from the iniquity of a foreign government's
refusal to carry out the directions of its municipal courts.
Therefore, the deposit of Rs. 3 lacs should
be treated as a pro tanto discharge of the decree in favour of the respondent
from that date when the appellant agreed for such adjustment. The decree amount
as on the date inclusive of costs incurred will have to be calculated and Rs. 3
lacs deducted therefrom. There will be a decree in favour of the respondent
only for the balance which would carry 5% interest from then on as stipulated
in the decree. [504C, E; 505F-H; 509F-G] Chowthmull Manganmull v. The Calcutta
Wheat and Seeds Association I.L.R. 51 Cal. 1010 and Sheo Cholanm Sahoo v. Rahut
Hoysein I.L.R. 4 Cal. 6 referred to.
493
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 2248 & 2303 of 1968.
From the Judgment & order dated the 30th
August, 1968 of the Delhi High Court (Himachal Bench), Simla in Regular First
Appeals No. 21 of 1967).
S. T. Desai, A. Subba Rao, Naunmt Lal and
Lalita Kohli, for the appellant (In CA No. 2248/68).
A.K. Sen, M. C. Bhandare and Rameshwar Nath,
for respondents Nos. 1 & 2 (In CA No. 2248/68).
B. P. Singh, for respondents Nos. 4, 6-11(In
CA. No. 2248/68).
A. K. Sen and M. C. Bhandare, for the
appellant (In CA No.2303/68);
S.T. Desai, A. Subba Rao, Naunit Lal and
Lalita Kohli, forrespondents Nos. 1, 2 & 4-9 (In CA. No. 2303/68).
The Judgment of the Court was delivered by
KRISHNA IYER, J.-The principal appeal, C. A. 2303 of 1968, has arrived in this
Court by certificates, under Art.
133(1)(a) of the Constitution, granted by the
High Court of Delhi. (The other, C.A. 2248 of 1968 has been extinguished by
efflux of time and even otherwise is not pressed, since counsel concedes the
decision to be just).
The subject matter is large, the rounds of
litigation many, the arguments long and yet the issues of law and disputes of
fact are few although their ultimate decision where justice and law have, we
think, come to cordial terms, has been reached after uneasy hours but with an
easy conscience.
Hopefully, we avoid burdening the judgment
with heavy historical material much of which has been. wisely jettisoned to
help turn the forensic focus on the threepronged attack on the decree made by
counsel for the appellant Shri S. T. Desai.
Even so, the sequence and significance of
events leading up to the current controversy, sprawling across India and
Pakistan and surviving for nearly three decades now, may be unfolded with
advantage. Now to the story. Lahore was the venue of the earlier forensic
episodes. The legal saga formally began in undivided India when the 1st
appellant, Kuthalia, the owner of Sedous Hotel, agreed to sell it on October 2,
1946 for a price of Rs. 52,75,000/to the 1st respondent Oberoi, who became a
name in the hotel industry.
An earnest money of Rs. 5,00,0001was advanced
and the time fixed for completion of the sale was January 20, 1947. On alleged
breach of contract, Civil Suit No. 514/61 of 1946 was filed in the Court of the
Senior Sub-Judge, Lahore, by the 1st respondent (Oberoi) as the 1st plaintiff
and the Associated Hotels of India Ltd., as the 2nd plaintiff, for recovery of
the earnest money with interest. A decree in favour of the 1st plaintiff was
made in the sum of Rs.
5,08,333-5-4 with future interest and costs.
So far as the 2nd plaintiff was concerned the reason for whose presence as
party is obscure, if not oblique494 the suit was dismissed. An appeal was
successfully carried by the present appellant to the High Court of West
Pakistan in Lahore since, by the time the trial Court's decree was made the
"Great Divide" had happened with all the blood and tears of political
history and traumatic effects on the law and life in both the countries. The
uprooting and overturning of human masses led to 'evacuee' legislation on both
sides of the frontiers and the common case of the parties is that both of them
are evacuees under the relevant Pakistani laws. The Lahore High Court, on 24th
November, 1949 dismissed the suit in toto, but, undaunted, Shri Oberoi moved
the Federal Court of Pakistan which restored the decree of the trial Court (on
21-12-53) in reversal of the High Court's decree. Thus the final Court in
Pakistan at the relevant time granted a decree in favour of the 1st respondent,
against the appellant, and that stands. This landmark event closes the chapter
of substantive rights and here begins a set of encounters in realising the fruits
of the decree. The crescendo of this unique series is the persuasive but
opposing 'submissions' we have listened to.
Two crucial factors gave a dramatic turn to
the course of the conflict viz., 'evacuee' legislation and the deposit of Rs.
3,00,000/in Court, in connection with the decree, pending the High Court
appeal. A brief narration of those matters is now necessary to follow the
development of the dispute before us. In the High Court, stay of execution was
sought and granted on condition of deposit of Rs. 3,00,000/on July, 16 1949 and
furnishing of security for the balance.
Pursuant thereto, the sum was deposited by
the judgment debtor into the executing Court, but the decree holder, on
objection by the former, was not allowed to withdraw the money before disposal
of the appeal. All this took place in July, 1949. Thus a key fact, whatever its
impact, emerges that the judgment-debtor (appellant) had put into Court this
substantial sum but he had also prevented the respondent getting instant benefit
of it.
The social disasters of the political surgery
already adverted to were alleviated by legislative bandaging of economic wounds
through laws to rehabilitate evacuees on either side. As part of this package,
the Pakistan (Administration of Evacuee Property) Ordinance, 1949 was
promulgated. This legislation defines an 'evacuee' and, as stated earlier, the
contestants in this case are both admittedly evacuees. Section 2(3) of the
Pakistan Ordinance defines 'Evacue property'and one of the points in controversy
before us is as to whether the decree passed by the Federal Court of Pakistan
for the sum of around Rs. 5,00,0001or the deposit of Rs. 3,00,000/in connection
with that decree, is 'evacuee property'. We may have to dilate on the scheme
and provisions of this Pakistan Ordinance a little later, but it is sufficient
to state, at Custodians of Evacuee Property and invests them with certain
powers. Right away we may read s.6 (1) of the Ordinance since its effect has
impact on one of the important contentions urged by Mr. Desai :
"6(1) All evacuee property shall vest
and shall be deemed always to have vested in the Custodian with effect from the
first day of March, 1947." 495 In simplistic terms, if we may here
anticipate Shri Desai's submission, there was a statutory vesting of the decree
obtained by Oberoi in the Custodian and no rights accruing from that decree
could be claimed by the former. The foundation of the present suit thus
collapsed, according to him. We will investigate the merits of this knock-out
blow to the plaintiff's case in due course. Two other legislations, the
Transfer of Evacuee Deposit Act, 1954 and the Pakistan Administration of
Evacuee Deposit Act, 1954 and the Pakistan Administration of Evacuee Property
Act, 1957 loom large as the legal chronicle continues. The former primarily
provides inter alia for transfer of court deposits of evacuees by each country
to the other and the latter saves some items from the all-embracing of
operation evacuee property. More later.
Anyway, the present appellant, when he won in
the High Court, moved for refund of the deposit by his application of December
1, 1949. Follow-up by way of an order for refund was natural the Court having
dismissed the suit. But the Court tacked on a further direction that intimation
be given to the Custodian to take appropriate proceedings, if he thought fit.
Thus alerted, the officer hastened. Hardly had 4 days passed when the Custodian
moved the High Court for interdicting the return of the amount on the score
that the entitled party was an evacuee under the aforesaid Ordinance of 1949.
The High Court thereupon stayed refund of the deposit to the appellant by an
order dated December 20, 1949. The sequel shows that this amount has eluded the
hands of both parties up till now, an extralegal misfortune which has a bearing
on the ultimate relief claimable in this appeal.
To resume the fluctuating fortunes of the
deposit, the main apple of discord. The Custodian's petition of 20th December,
1949 included a prayer for payment out to him of the amount in deposit, as,
according to him, it belonged to Kuthalia (the defendant) an evacuee. However,
it was kept pending on notice having been ordered to the depositor. But when
the suit by Oberoi was decreed by the Federal Court, the right to refund put
forward by the defendant disappeared. Even so, since both parties were evacuees
the Rehabilitation Commissioner sent a request to the High Court in these
terms:
"From S.S. JAFRI ESQUIRE C.S.P.
REHABILITATION COMMISSIONER AND SECRETARY TO
GOVERNMENT PUNJAB, REHABILITATION DEPARTMENT.
To THE REGISTRAR HIGH COURT OF JUDICATURE
PUNJAB LAHORE Dated Lahore the 4th January, 1954 Subject:-Hedous Hotel Lahore
Deposit of Rs. 3 lacs in the High Court of Lahore.
496 MEMORANDUM A sum of Rs. 3,00,000 was
deposited by R.B. Jodha Mal of Hoshiarpur, in the High Court Lahore for the
benefit of the Associated Hotel of India Limited. A decree was passed by the
Senior Civil Judge Lahore in favour of the Associated Hotel of India Limited
against R.B. Jodha Mal for a sum of Rs. 5,08,333-5-4. The deposit of Rs.
3,00,000 was made in part payment of the above decree. R.B. Jodha Mal preferred
an appeal in the High Court against the order of the Civil Judge. This appeal
was accepted on 24th November, 1949.
Against this decree of the High Court the
Associated Hotel of India Limited, filed an appeal in the Federal Court of
Pakistan. This appeal was accepted by the Federal Court on 21st of December,
1953.
2.Since both the contesting parties are
evacuees the amount in question cannot be paid until instructions from
Government of Pakistan are received in the matter. It is therefore requested
that the amount of Rs. 3,00,000 may please be deposited in the Treasury under
the detailed head.
"Sale proceeds of Immovable Property and
debts due to Evacuee etc." Under the head. "P. Deposits and Advances
Part 11 Deposits not bearing interest Departmental and Judicial Deposits Civil
Deposits, Deposits on account of Evacuee Estates" in the accounts of the
Deputy Rehabilitation Commissioner (Rent and Repairs), Lahore under intimation
to this office.
(Sd.) GHULAM SHABBIR, Deputy Secretary
Rehabilitation, for Rehabilitation Commissioner and Secretary to Government
Punjab Rehabilitation Department.
No. U. Reh. Ace. G/333, Dated Lahore 4th January,
1954." Thus the amount remained frozen. A couple of days later (January
(6) the defendant Kuthalia moved the High Court at Lahore not for refund of the
deposit-which he could not ask for in view of the Federal Court decree-but
praying 'that the aforesaid amount of Rs. 3,00,000/may be directed to be
adjusted towards satisfaction of the decree as originally intended and the
request for refund be treated as withdrawn and the objections filed by the
Deputy Custodian be dismissed.' Anyway, the lid was put on this part of the lis
bearing on the Custodian's claim to keep the deposit in Pakistan by the Supreme
Court of Pakistan, holding to the contrary. To appreciate this decision of the
Supreme Court reference has to be made to s-4 of the Pakistan Ordinance I of
1954 (which reincarnated as Act VI of 1954 with the same name) relating to
transfer of deposits. This enactment had its counterpart in India. As a result
of political understanding reached between the two countries, Court and other
deposits were agreed to be transferred to the respective countries into which
the evacuees entitled to them had moved. On the strength of this law Shri
Oberoi the decreeholder, moved the High Court at Lahore for transfer of the
deposit 497 of Rs. 3,00,000/together with the records relating thereto 'to such
officer or authority in India as the Central Government has by order specified
in this behalf or specifies in future as the provisions of' the said Act fully
applies to it.' It may incidentally be mentioned since it has considerable
importance at a later stage, that in this application Shri Oberoi had
categorically asserted:
"That Rai Bahadur Mohan Singh,
decree-holder submits that judgment-debtor had no interest in the. said sum and
the same is lying deposited with this Hon'ble Court for the payment to him, as
it was deposited for the due performance of such decree as may ultimately be
passed in his favour. The said decree-holder contends that no other person has
any right or interest in the said amount and that the same is lying with this
Court in trust for payment to him. The judgment-debtor has accepted this
position, and claims no right or interest in the said amount." Although
the High Court declined to uphold the claim for transfer of the deposit under
Act. VI of 1954, on being approached by the decree-holder the matter received
different treatment at the bands of the Supreme Court.
Shri Oberoi's contention was:
"That the Federal Court of Pakistan
having passed a decree in favour of the petitioner and the sum deposited being
for the satisfaction of the decretal amount this Hon'ble Court has erred in
holding that the petitioner had no interest in the deposit. it was neither
within its jurisdiction to decide the same nor its decision on that point is
legal and correct." Cornelius C. J., speaking for the Court, overruled the
pretended claim of the 2nd plaintiff, the Associated Hotels of India Ltd.,
rejected the Custodian's objections and ruled:
". . . It would appear that prima facie
the principal and direct interest in the money is that of Rai Bahadur Jodha
Mal. The money having been deposited in relation to a decree of the Court, for
the purpose of being applied to the satisfaction of that decree, and such
decree standing exclusively in the name of Rai Bahadur Mohan Singha Oberoi, he
might appear to have a secondary and indirect interest in the money...."
In short, the highest court directed the transfer of the deposit, subject to an
innocuous finding by the High Court about both contestants being evacuees. In
fulfilment of the Supreme Court's remand the High Court of West Pakistan passed
final orders in these peremptory terms:
"We, therefore, have no hesitation in
holding that both Rai Bahadur Jodha Mal Kuthalia, the depositor, and Rai
Bahadur Mohan Singh Oberoi, for whose benefit the deposit was made are within
the purview of section 4 of the Transfer 498 of Evacuee, Deposits Act, 1954,
"evacuees" and direct that the deposit be sent to the Custodian of
Evacuee Property, along with the record of the case, for transmission to such
an authorised officer or authority in India as the Central Government has
specified in this behalf for disposal in accordance with the law." In the
sorry scheme of affairs this direction remained a dead letter. Courts can only
command, but if Governments ignore them, the finer flame of the rule of law is
puffed out and the darker forces of rule by executive diktat choke the life
breath of the law. Anyway, the Supreme Court's order notwithstanding, the
deposit of Rs. 3,00,000/lies idle still, after a lapse of 14 years, in Pakistan
Treasury.
The scene now shifts to India. both the
dramatis personae move to India and, perhaps make good. Here is a decree
paralysed by circumstances beyond the control of the parties. The decree-holder
Oberoi, after taking legal advice at the highest level, moved the High Court of
Punjab at Chandigarh for levying execution of his decree, which, by passage of
time, had added adipose by way of interest and remained undiminished by the
deposit in the Pakistan Court to the credit of the decree. The swollen sum
claimed in execution was 10,79,820/4. In doing so he sought the aid of s.4(3)
of the Indian independence (Legal Proceedings) Order, 1947 read with O.XLV,
r.15 and s. 15, C.P.C. Many road blocks in the way of the executability of the
decree were placed by the judgment debtor but the High Court of Punjab at
Chandigarh, assisted by eminent counsel, elaborately considered the many legal
questions and dismissed the execution petition. The Court found that the situs
of the decree which was 'property' was Lahore and so Oberoi, an evacuee, had
been divested of all interest therein, the Pakistan Custodian being the
repository of all such rights.
The property in the decree being negatived,
the present respondent failed. Many other findings hostile to his claim were
also rendered by the High Court However, the quietus to this Operation
execution was given by the Supreme Court of India where the parties, engaging
top legal talent, hopefully reached, obtaining leave under Art. 133(1)(a) and (c)
of the Constitution. In that appeal the judgment debtor (present appellant)
resisted the proceedings, filing a statement of the case through his advocate
Shri Naunit Lal, as required by the Supreme Court Rules (This statement has
pertinence to the point regarding limitation vis-avis s. 19 of the Limitation
Act, to be dealt with later). The Court, after stating the facts of the long
litigation, punctuated by the puzzling waves of evacuee legislation, by-passed
issues unnecessary to the determination of the case (although decided by the
High Court) and came to the crux of the matter whether this Pakistani decree
could be straight executed invoking 0.45, r.15, C.P.C. When one gets entangled
in the skein of details impertinent to the core issue, the true problem gets
obfuscated. This happened, to an extent, in the High Court. Side-stepping these
in essentials, Gajendragadkar J. (as he then was) speaking for the Court, came
to the scope and sweep of the Indian Independence (Legal Proceedings) Order,
cleared 499 the legal cobwebs and laid bare the object and ambit of that law in
the back-ground of the historic surgery of Indian geography which took place
then. The Court concluded thus :
"The next question which must be
considered is whether the present suit falls within Section 4(1) at all. The
answer to the question must obviously be in the negative. The material
allegations made by the appellants in the plaint filed by them in the present
suit clearly show that the whole cause of action had accrued within the jurisdiction
of the Senior Sub-Judge at Lahore. The original contract had taken place at
Lahore, the property agreed to be sold was situated at Lahore, the earnest
amount of Rs. 5,00,0001was paid by the appellants to the respondent at Lahore '
the breach of the contract took place at Lahore, and so under Section 20(c) of
the Code of Civil Procedure the suit was properly filed in the Court at Lahore
and the jurisdiction of the said Court to try the suit was in no manner
affected by the passing of the Act or the transfer of territory. This position
was not and is not disputed. There is, therefore, no doubt that the trial Court
could have proceeded to deal with this suit even if the Order in question had
not been passed; and so the statutory fiction raised by the provisions of the
Order cannot be invoked enforcing a decree passed by the Federal Court in an
appeal arising from such a suit. In our opinion, therefore, the High Court was
in error in holding that the provisions of Section 4 applied to thedecree sought
to be executed by the appellants." The view, though in reversal of the
High Court's holding, did not affect the ultimate outcome. For the Court ruled
that the execution of the foreign decree, as if it were one of the Supreme
Court of India, was misconceived. In other words, the forum for enforcement and
the process for getting relief viz., a suit under s. 9 and 13 of the C.P.C. in
the competent Court of original jurisdiction could not be circumvented or
short-circuited by resort to the exceptional methodo logy indicated in s. 4(1)
or (3) of the Indian Independence (Legal Proceedings) Order.
This extinguished the fires of controversy
regarding excitability but ignited the current original suit. Shri Oberoi,
discomfited in execution, was driven to filing a regular suit for recovery of
the decree amount based on the foreign judgment in his favour and indeed
success attended his efforts, since the trial Court and the High Court made
shortshrift of all the pleas to non-suit him.
It is this defeat on all points that has
escalated the appellant's litigation to the top judicial deck, this Court,
urging his triple opposition to the plaintiff's decree.
Shri Desai's 'submissions' logically and
sequentially, were three. Firstly, the decree of the Federal Court of Pakistan,
which was the foundation of the present action, had vested automatically in the
Custodian under the Pakistan Ordinance of 1949 and, therefore, the
7-255Sup.CI/75 500 plaintiff Oberoi had no right to recover on the basis of the
foreign judgment. Absent locus standi or cause of action, his suit was bound to
fail and therefore the appeal was bound to be allowed on that initial ground
alone.
His second submission was that the six-year
period available under Art. 117 of the Indian Limitation Act for a suit upon a
foreign decree had long ago expired, reckoned from the date when the Federal
Court of Pakistan granted the present plaintiff a decree. By simple arithmetic
he is right but the plaintiff has sought to salvage his action from the
clutches of limitation by reliance on ss. 14 and 19 of the Indian Limitation
Act. In the facts and circumstances of the present case, Shri Desai repels this
rescue operation as a misapplication of the relevant provisions.
The last, yet to our mind the most
meaningful, point urged by the appellant, was that although a decree for Rs.5,00,0001had
been awarded by the Pakistan Court in favour of the present plaintiff, a sum of
Rs. 3,00,000/had already been deposited to the credit of that decree in the
Lahore Court and had been actually adjusted towards the decree, with the result
that the worst coming to the worst only a sum of Rs. 2,00,000/together with
subsequent interest could be claimed by the plaintiff, in law and justice. The
equities between the parties were a component of the branch of jurisprudance
bearing on execution of foreign decrees.
We proceed to examine the soundness of these
three contentions in the order set out above.
Locus Standi Ordinarily, a suit on fact of a
foreign decree is sustainable and s. 13C.P.C.,sets out the limitations on the
amplitude of the right. This proposition is not disputed but what Shri Desai
argues is that the decree being 'evacuee property' under the Pakistan
Ordinance, it has already vested in the Custodian by statutory Operation, so
much so the plaintiff has long ago ceased to be decree-holder. May be other
limited remedies, to get relief as an evacuee who has lost large properties,
may be available to Oberoi under other enactments in both countries but qua
holder of a foreign decree he cannot bring a suit to recover the debt-an
infirmity affecting the root of his right.
The plaintiff's answer is simple and
sufficient and deflates the defendant's resistance, based on 'evacuee'
legislation.
A foreign judgment is enforceable by a suit
upon the judgment which creates In obligation between the parties.
Indeed, it 'shall be conclusive as to any
matter thereby directly adjudicated upon between the same parties' subject to
the exceptions enumerated in s. 13 C.P.C. None of these nullifying clauses
being attracted, prima facie the foreign judgment on which the plaintiff founds
his present action is unassailable. Certainly, the judgment of the Pakistan
Court was in favour of the plaintiff and, being conclusive under s. 13, the
defendant could not be heard to urge to the contrary.
501 Even so, let us' analyses the evacuee law
based bar, to see if it has substance.
To appreciate the merit of this argument, it
is necessary, as earlier pointed out, to follow the provisions of the evacuee
legislation in Pakistan. The Ordinance of 1949 defines 'evacuee' [s. 2(2) and
both the parties herein fall squarely within that definition. The second
question then is whether the decree, which is the source of the plaintiff's
rights, is 'evacuee property' as defined in s. 2(3) of the 1949 Ordinance or is
'Property' as defined in s.2(5) thereof. If it is, s. 6 of the said Ordinance
will operate to divest the plaintiff of his ownership of the decrce and vest it
in the Custodian, notwithstanding any other law to the contrary (s.4 of the
Ordinance is an over-riding provision). The first point that falls for decision
therefore is to decide whether the decree of Shri Oberoi is 'evacuee property'.
Assuming for a moment that it is-and at the first Rush it is-an argument which
neutralises this contention is urged by the other side, based on the Pakistan
(Administration. of Evacuee).Property Act, 1957 (12/58).
There is hardly any doubt that the parties
are 'evacuees' within the meaning of this Act also. Even so, the Pakistan Administration
of Evacuee Property Act, 1957 (XII of 1958) carves out a category of evacuee
property out of the Custodian's control. Does this decree thus escape the net?
Yes, it it has not been treated as evacuee property. For, although all evacuee
property vests in the Custodian by force of s. 7 of this Act s. 3(1) is of
strategic significance and reads:"3. Property not to be treated as evacuee
property on or after 1st January, 1957.
(1)Notwithstanding anything contained in this
Act, no (?) person or property not treated as evacuee or as evacuee property
immediately before the first day of January, 1957, shall be treated as evacuee
or, as the case may be, as evacuee property, on or after the said date.
x x x x x Certainly, the judgment debtor is
an evacuee and the Custodian has treated him as such in court proceedings. But
has that decree been treated as evacuee property ? The answer is an easy
negative. The Custodian never demanded any right qua decree holder nor as
stepping into the shoes of Shri Oberoi. Thus, whichever way we view the matter
the appellant must fail in this branch of his case. It is pregnant with meaning
that the Custodian did not seek to get himself impleaded as a co-appellent in
the Federal Court of Pakistan and at no tier of the long-drawn out litigation
in Pakistan did the defendant contend that the plaintiff Oberoi was no longer
entitled to sue for the amount and that the Custodian alone had such right if
at all.
Bar of Limitation The slow flow of the
plaintiff's rights along the stream of statutory limitation would have normally
been stilled into a final freeze, for the 502 prescribed life span of six years
under Art. 1 17 of the Limitation Act had admittedly run out. The rescue raft
on which Shri Oberoi clutched O survival of his right to sue was S. 19 and his
life-belt, as it were, was s. 14. The facts and law are fairly clear; their
rival interpretations by counsel n-verticle s diverged so much that the
encounter generated at the bar as 'much heat as light-inevitable, 'May be, in an
adversary system. Be that as it may, we will scrutinise the case urged by the
plaintiff to attract these rejuvinatory and exclusionary provisions. Courts
must as far as is reasonably permissible put a liberal construction on
documents to save, not to scuttle, when faced with a plea of limitation to
non-suit an otherwise good claim.
Section 19, to help renew limitation.,
requires, as rightly stressed by Shri Desai, an intention to own a subsisting
liability by the debtor to the particular creditor. Mere chronicles of
litigations and recitals of documentary events, it is argued, cannot be
regarded as acknowledgement if the whole drift of the writing is a denial of
the plaintiff's claim. But, in the view we take of the applicability of s. 14,
a further probe into or pronouncement on the legal labyrinths of s. 19 and the
rulings cited in that connection need not detain us.
Suffice it to say that we do not express any
opinion on the issue including an advocate's :authority to acknowledge
liability in the course of a Statement of the Case. It all depends on the
circumstances of each case.
Section 14, which neatly fits in, is simple
in its ingredients, to the extent we are called upon to consider.
It is a sine qua non of a claim unders.14
that the earlier proceeding is prosecuted in good faith. It is beyond cavil
that before launching on execution of the Pakistani decree Shri Oberoi had
taken advice from two leading Indian lawyers and set about the job diligently.
Bonafides is thus writ large in his conduct. The controversy is that the defect
of non-executability of the foreign decree by virtue of the Governor Cieneral's
order does not savour of a jurisdictional or like error but ,of a mere
misconstruction of law. We need not labour the obvious that here the prosecution
of the execution proceedings was repelled because and only because the
institution of such proceeding on the ,execution side was without jurisdiction.
Normally, 'a money claim due under a foreign decree can be enforced on the
original side by a suit under ss. 9, 13 and 26, C.P.C.
in the appropriate Court and the executing
court has no jurisdiction to straightway levy execution under 0.21, c.p.c. An
exception is provided in this regard by the Governor General's Order and a
special forum viz, the High Court is indicated when the decree to be executed
is of the Supreme Court of Pakistan. All this pertains to jurisdiction and in
the Associated Hotels case this Court negatived executability solely on grounds
jurisdictional or quasi-jurisdictional. Section, 14 thus comes to the rescue of
the defendant in this suit.
Certainly, Section 14 is wide enough to cover
periods covered by execution proceedings (See 1959 SCR 817 at 81'8).
After all, s. 47 itself contemplates
transmigration of souls as it we re of execution 503 petition and suits. The
substantial identity of the subject matter of the lis is a pragmatic test.
Moreover, the defects that will attract the provision are not merely
jurisdictional strictly so called but others more or less neighbours to such deficiencies.
Any circumstance legal or factual, which inhibits entertainment or
consideration by the Court of the dispute on the merits, comes within the scope
of the section and a liberal touch must inform the interpretation of the
Limitation Act which deprives the remedy of one who has a right (see (1971)2
SCR 397 at 401).
In the Associated Hotels case (i.e. the very
lis in its earlier round on the execution side this Court pointed out [1961] 1
SCR 259 at 272) that the question was one of initial jurisdiction of the Court
to entertain the proceedings. Thus in this very matter, the obstacle was
jurisdictional and the exclusionary operation of s. 14 of the Limitation Act
was attracted.
Equitable Adjustment The last ditch battle
fought by the appellant relates to the deposit of Rs. 3,00,000/which, if
deducted from the date of payment into Court from the amount decreed a huge
scaling down of the figure will be the result. While Shri Desai staked his case
on equitable considerations which must be applied while executing foreign
decrees, Shri Ashok Sen wondered what legal principle could sanction such
inroad into sums legitimately due. While Shri Desai's two earlier defences are
easily vulnerable, we think his plea on equity, in a less extreme form, is
impregnable. "What is truth said jesting Pilate (in Jesus trial) and would
not stay for an answer." We choose to pause and answer that Truth is Law
cast in the compassionate mould of justice and equity being one of its facets.
Shri Sen's strenuous submission summed up
fairly is that undefined rules of equity are unruly horses and in India legal
rights cannot be chased out by nebulous notions of good conscience labelled
equity. In a sense, he is right but to deny equitable jurisdiction for courts
to promote justice is too late and too tall a jurisprudential proposition in
any system. For, equity is not anti-law but a moral dimension of law rather, it
is the grace and conscience of living law acting only interstitially. The
quintessence of this concept may be stated thus "All great systems or
jurisprudence have a mitigating principle or set of principles, by the
application of which substantial justice may be attained in particular cases
wherein the prescribed or customary forms or ordinary law seem to be inadequate.
From the point of view of general jurisprudelice, "equify" is the
name which is given to this feature or aspect of law in general."(1)
Certainly when law speaks in positive terms, equity may not.
be, invoked against it; but while applying
the law the Court can and must (1) American Jurisprudence 2nd Edn. Vol. 27 p.
516.
504 ameliorate unwitting rigours inflicted by
legalisms, where there is room for play, by the use of equity. After all,
equity is the humanist weapon in the Court's armoury, whereby broad justice may
be harmonised with harsh law, based, of course, on established principles. In
the present case, certain sympathetic circumstances stand out indubitably and
the benign interference sought by the appellant is spelt out of these facts.
What are they ? The judgment debtor did apply for stay of execution and, on the
direction of the High Court, did deposit rupees three lakhs on July 16, 1949
(to be correct, out of it Rs.
50,000/was paid in only on 16th August), not
in discharge of but as security for the decree pending the first appeal.
We cannot blink at the fact that but for
supervening political upheavals and eventual disregard of the Court's order by
the Pakistan Government the judgment creditor would have withdrawn this sum.
But partially to antidote the effect of this factor must be remembered the
opposition of the debtor to the creditor drawing the money from Court in July
1949 when the 1949 Ordinance vesting evacuee property in the Custodian had not
been promulgated. And since the appeal was allowed by the High Court and the
suit dismissed, the deposit ceased to be security for the decree, although
factually the money did not leave the custodia legis. Shri Oberoi's decree was
re-born, as it were, only when the Federal Court allowed his appeal on December
21, 1953. Till then he had only a potential right to claim the money.
Now, a close-up of the post-decretal
happenings with special reference to the conduct of either party bears on the
'conscience' of the situation. Neither party was blameworthy and indeed both
were agreed at a stage that the deposit should go in satisfaction of the decree
affirmed by the final court. The judgment was delivered on December 21, 1953.
Most probably the Christmas vacation intervened and soon after the
reopening-(January 6, 1954) the judgment debtor rushed to the Lahore High Court
with the request that his application for withdrawal of deposit filed 4 years'
back be dismissed as withdrawn and it be adjusted towards the decree. 'It is
therefore respectfully prayed' concluded the petitioner, 'that the aforesaid.'
amount of Rs.
3,00,000/may be directed to be adjusted
toward satisfaction of the decree as originally intended and the request for
refund be treated as withdrawn and the objections filed by the Deputy Custodian
be dismissed." in this application he stated that the amount was deposited
'towards partial satisfaction of the decree as a condition for stay of
execution......... Let us look at the decreeholder's stance. On March 31, 1954
he hopefully moved the High Court at Lahore for transfer of the deposit to
India on the strength of s.4 of the Transfer of Deposit Ordinance (later
enacted as Act VII of 1954). True, his final success in the Supreme Court
proved a Dead Sea fruit, the judicial order having been ignored by the
Government but the fact remains that he averred in his application of March 31,
1954, in harmony with the position taken up by the judgment debtor.
"(1) That on 6th January 1954 Rai
Bahadur Jodha MalKuthalia filed an application praying that the sum of 505 Rs.
3,00,000/which he had deposited in this Hon'ble Court on 15th/16th July, 1949,
in pursuance of the order passed by this Court on 27th April 1949 for the due
performance of decree as may ultimately be binding upon him be paid to Rai
Bahadur Mohan Singh oberoi decree-holder towards partial satisfaction of' the
decree and that his application, dated 15th December, 1949, for refund of the
said amount be treated as withdrawn and consequently the objection and the
review application of the Custodian dated the 20th December 1949 be dismissed.
* * * * (3)That Rai Bahadur Mohan Singh,
decree-holder submits that judgment-debtor has no interest in the said sum and
the same is lying deposited with this,Honable Court for payment to him, as it
was deposited for the due performance of such decree as may ultimately be
passed in his favour. The said decreeholder contends that no other person has
any right or interest in the said amount and that the same is lying with this
Court in trust for payment to him. The judgment-debtor has accepted this
position and claims no right or interest in the said amount.
(4) That the said decree-holder further
contends that in view of the "Ordinance No. 1 of 1954'Transfer of Evacuee
Deposits Ordinance 1954' and subsequent enactment of the said Ordinance into an
Act of the legislature to the same effect, this Hon'ble Court is requested to
transfer the deposits of Rs.
3,00,000 along with the records relating
thereto to such officer or authority in India as the Central Government has by
order, specified in this behalf or specifies in future as the provision of the
said Act fully applies to it.
In the alternative the said decree-holder
further prays that if for some reasons, this Hon'ble Court decides that the
said deposits cannot be transferred to India under the provisions of the said
Act, it be held that the Custodian of Evacuee Property is not entitled to the
same and it be paid to the said decree-holder at Lahore." Without being
too literal or legalistic, it is clear that tile decree-holder had laid claim
to the sum to the exclusion, not only of the Custodian but also of the
judgment-debtor. He should have got the money, but did not.
But all that the appellant could do to help
Sri oberoi obtain the deposit he did.
Taking a pragmatic view of the justice of the
case, the Court has to see who should bear the loss in these circumstances.
Should the decree-holder be eligible for his 'pound of flesh' since he had not
got a paise towards his legal dues? Should the judgment-debtor be directed to
pay Rs. 3,00,000/twice over even after both sides had, in the Pakistan Court,
represented that the decree-holder alone was entitled to the deposit and that
it be disbursed to him? The High Court at Lahore highlighted this attitude of
the parties thus:
506 "The position taken up by R. B.
Jodha Mat Kuthalia is that this deposit stands adjusted towards the
satisfaction of the decree of rupees five lacs.The position taken up by R.B.Mohan
Singh Oberoi is that neither the judgment-debtor nor any other person except
himself has any right or interest in the deposit." * * * * * "The
position of both R. B. Jodha Mal and R.B. Mohan Singh is that the amount stands
adjusted and vests in the decree holder and for the purpose of the application
for transfer of deposit we will assume that it does so vest." The Supreme
Court of Pakistan viewed the matter slightly differently and observed:
"Certain facts stand out clearly. Since
the money was deposited under the orders of the Court by Rai Bahadur Jodha Mal,
and there being no order of the Court regarding the disposal of this money so
as to divest Rai Bahadur Jodha Mat of his ownership thereof, it would appear
that prima facie the principal and direct interest in the money is that of Rai
Bahadur Jodha Mal. The money having been deposited in relation to P. decree of
the Court, for the purpose of being applied to the satisfaction of that decree,
and such decree standing exclusively in the name of Rai Bahadur Mohan Singh
oberoi, he might appear to have P. secondary and indirect interest in the
money." What is loudly obstrusive from this narration is that, although
the Court deposit presented to the parties but P. teasing illusion, the Courts
and the parties assumed the amount as specially earn marked towards discharge
of the decree. Expectantly Shri Oberoi, even after taking legal advice
regarding executability of his decree in India, moved the Pakistan Court by
petition doted December 11, 1954 asserting rightly;
"That the deposit being for his benefit
and he being a non Muslim and on evacuee, is entitled to claim that the sum be
transferred to India.
in accordance with Section 4 of Act VI of
1954, and that the words partly interested in the deposit mean parties to the
said proceedings or litigations and any other person who on the face of the
record can be considered to be partly interested in the deposit and therefrom
it is contended that neither it is contemplated that the Court would invite all
claimants or creditors to make claims regarding the deposit and would then
adjudicate regarding the bona-fides of their claims and order the distribution
of the deposit amongst them accordingly, nor was enquiry of this nature,
contemplated, as no procedure for enquiry of this nature has been provided for
in this Section. The Court is merely transmitting authority to transfer the
deposit. But as this Point is still to be decided by this Hon'ble Court and as
this Hon'ble Court might take a contrary view to the one stated above, it is
submitted that to avoid unnecessary 507 delay, the Court might be pleased to
issue such notices that it considers proper to the public or to any other
parties it considers fit to do so that the matter may be finally adjudicated at
the next date of hearing. It is, therefore, prayed that it be ordered accordingly."
The fair inference flows from this stream of facts that the judgment debtor had
washed his hands off this sum and the decree-holder had clung to it with a
quasi-proprietary claim. in such a situation, is it just that if politically
paramount but legally extraneous forces blocked the payment to the
decree-holder (he may still get it although it may be a little luny to hope for
it in the near future) the hardship should fall on the judgment debtor ?
Precedents in profusion were cited on both sides bearing on Court deposits as
security for decree amounts and for allied positions. While we will presently
refer only to a few of them inhibited by space and relevance, it falls to be
mentioned at the threshold, contrary to the tenor of Shri Sen's contention, that
equity jurisprudence is flexible and meets the challenge of new situations
without the law. "New days may bring the people into new ways of life and
give them new outlooks: and with those changes there may come a need for new
rules of law ............ (1)" But legislation lags. Here steps in equity
for, the role of a judge, is to develop the law-and adapt it to the needs of
the members of his society (See Modern Law Review, Vol. 34,1971-p. 28).
Nor is Shri Sen right when he contends that
his client admittedly not being guilty of any blamable conduct, therefore,
should not be deprived of any part of his decree.
Equity is not penalty but justice and event
where neither party, as here, is at fault, equitable considerations may shape
the remedy. Lord Denning spoke of the new equity that was needed (5 Current
Legal Problems 1952 p. 1) and Marshall said that the time to write finis to the
role of the judiciary in the field of equity had not come (See Law, Justice
& Equity Essays in tribute to Keeton p. 66). of course not novel sentiments
but well-settled rules, not the Chancellor's foot but standard-sized shoes,
serve the judge in these pathless woods. True, as Keeton said :(2) " an
equitable doctrine may prove malleable in the hands of Lord Denning but intractable
in the hands of Lord Justice Harman." In short, our equitable jurisdiction
is not hide bound by tradition and blinkered by precedent, though trammelled by
judicially approved rules of conscience. With this background we will glance
through the decided cases, alive to the fact that they cannot necessarily
furnish in every case a clear legal lodestar to steer us sure ashore. In the
present case the equity arises largely from the iniquity of a' foreign
government's refusal, for reasons we cannot guess, to carry out the directions
of its municipal courts. This uniqueness cannot be missed.
(1) Current Legal Problems, 1952 Vol. 5,
Stevens & Song Ltd., London p.1.
(2) Keeton-Sheriden on "Equity" p.
37, 1969 Edn. Sir Isaac Pitrnan and Sons Ltd. London, 508 Sri Desai drew our
attention to Chowthmull Manganmull v. The Calcutta Wheat and Seeds
Association(1); Sheo Gholam Sahoo v. Rahut Hossein(2); Mehar Chand v. Shiv Lal
& Anr.(3);
Kothamasu Venkata Subbayya v. Udatha
Pitchayya(4); Ex parte Banner In re Keyworth(5) and Bird v. BarstoW(6). A few
other cases also were cited but since nothing fresh is contributed by them
reference is not made to them.
What are the principles vis-a-vis the problem
here ? That a mere security deposit does not become an automatic satisfaction
of the decree when the appeal fails is simple enough. But when the judgment
debtor has paid into court cash by way of security conditioned by its being
made available to discharge the decree on disposal of the appeal and for means
beyond the control or conduct of the judgment debtor the money is not
forthcoming to liquidate the liabilities can he be asked to pay over again ? In
Chowthmull Manganmull v. The Calcutta Wheat and Seeds Association (Supra),
Sanderson C. J. observed ( at p. 10 1 3) "In my judgment the effect of the
order was that the money was paid into Court to give security to the plaintiffs
that in the event of their succeeding in the appeal they should obtain the
fruits of their success. See Bird v. Barstow (6). It may be put in other words,
viz., that the amount paid into Court was the money of the plaintiff
respondents subject to their succeeding in the appeal and thereby showing that
the decree in their favour by the learned Judge on the Original Side was
correct. The words which were used by Lord Justice James in the case of Exparte
Banner, in re Keyworth (5) are applicable to this case. The learned Lord
Justice said that the effect of the order was that 'the money which was paid
into Court belonged to the party who might be eventually found entitled to the
sum." The head note in Sheo Gholam Sahoo v. Rahut Hossain (supra) reads :
" When money or moveable property has
been deposited in Court on behalf of a judgmentdebtor in lieu of security, for
the purpose of staying a sale in execution of a decree pending an appeal
against an order directing the sale, which is afterwards Confirmed on appeal,
neither the depositor, nor the judgment-debtor, can afterwards claim to have
such deposit refunded or restored to him, notwithstanding that the decree holder
has omitted to draw it out of Court for more than three years, and that more
than three years have elapsed since any proceedings have been taken in
execution of the decree, and that the decree for that reason is now incapable
of execution.
(1) I.L.R. 51 Cal. 1010. (2) I.L.R. 4 Cal. 6.
(3) (1955) 57 P.L.R. 350.(4) A.I.R. 1960
Andhra Pradesh 349, (5) 1874(9) Ch. 379. (6) [1892] 1 Q.B.D. 94, 509
Semble.-When money or moveable property is deposited in Court in such a case as
the above, the Court, upon confirmation of the order for a sale, holds the
deposit in trust for the decree-holder, and is at liberty to realize it and pay
the proceeds over to him to the extent of his decree." The equity in
favour of an obligor, who has deposited the obligated sum into Court pending
proceedings in which he assails his liability, is underscored by these rulings
and the principle cannot be different merely because the obligee who ordinarily
would have, without reference to the obligor, drawn the money from Court is unable
to get it for extralegal reasons as here. We are of the view that the justice
of the case, without crossing the path of any legal provision, warrants our
upholding the equity set up by the appellant., Had the decree been executed in
the haleyon days in the Lahore Court this deposit would have been credited and
adjusted and the freak consequences of Partition should not disadvantage the
judgment debtor. In India the historical and artificial distinction between
Equity and Law does not exist and equity itself is enforced as law with all the
built-in limitations we have adverted to.
To dispel possible misapprehension we declare
that the whole deposit and accretions will be drawable only by the decreeholder.
Though a formal order of the Lahore Court directing adjustment of the amount
towards the decree has not been passed, we direct the whole sum, whether it
remain in Pakistan or is eventually transferred to India, belong to and
withdrawable only by, the decree-holder, since justice and good conscience plainly
require it. Equitable remedies by courts an institutionalised strategy in the
myriad situations of complex modern societies are an expanding universe, but,
for the obvious relief we grant here, no resort to any theoretical basis is
needed.
Bearing these canons in mind, we must
crystallise the benefit the appellant can justly get. Till the date of the
Federal Court decision on December 21, 1953 the decreeholder could not draw the
deposit. indeed, only when the judgment-debtor agreed in Court proceedings that
the sum be treated as pro tanto discharge of the decree and the decreeholder
moved the court on that basis could the benefit of equitable adjustment arise.
This later event was when Shri oberoi applied by C. M. 120 of 1954 to the High
Court at Lahore on 31-3-54. So, the decree amount as on that date, inclusive of
costs incurred, will have to be calculated and Rs. 3 lakhs deducted. The
balance will, as stipulated in the decree, carry 5% interest from then on. We
make it clear that the entire costs incurred in the suit in India, i. e. in the
trial court will also be payable but in regard to the appeals in the Delhi High
Court and in this Court the decree-holder will be awarded proportionate costs.
of course, the decree-holder lost in his attempt to execute the foreign decree
in India and we leave the costs of those proceedings well alone. in the light
of these directions the executing 510 court will quantify the amount currently
recoverable and proceed to levy execution. The appeal is substantially dismissed
but is also allowed in part as above indicated.
C. A. 2248 of 1968 is dismissed but no order
as to costs.
We have, through the chemistry of jut
adjustment mixed in the crucible of law and equity, endeavoured to end a feud
over money; but who knows whether Time, the supreme devourer of systems
temporal, will spare this principle of 'good conscience' from the sepulchre of
buried values ? V.P.S.
Appeals allowed.
M25SSup.CI/75-2,500-4-10-75-GIPF.
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