Report No. 27
1. Section 82, as it stands at present, prescribes an elaborate procedure to be followed before execution of a decree can be ordered against the Government, etc. It contemplates the following stages:-
(i) A time has to be specified in the decree itself for its satisfaction;
(ii) If a decree remains unsatisfied for the time specified, a report has to be made by the court to the State Government;
(iii) After the report, the court must wait for a further period of 3 months, and can issue execution only if the decree remains unsatisfied for a further period of 3 months.
2. It is considered, that this elaborate procedure is not necessary and causes delay. The intermediate report to the Government by the court is a formality which should be removed. Further, the law itself should lay down the period of waiting, instead of requiring the court to fix the period in each case. Power should be given to the court to fix a period in a particular case. Necessary changes have been proposed.
3. A power to extend the period is also considered desirable, and has been provided for.
4. The words "such act as aforesaid" in section 82 refer to an act purporting to be done by a public officer in his official capacity. That has been made clear.
Section 82 and Jammu and Kashmir
The provisions of section 80 were applied to the Government of Jammu and Kashmir by the amendment of 1963. The provisions of section 82 have not, however, been applied to that Government. The attention of the Government is drawn in the matter, for such action, if any, as it may consider necessary.
Section 86 and foreign Governments
While section 86 provides for the filing of suit against Rulers of foreign States with the consent of the Central Government, there is no express provision as regards suits against foreign States. The position was considered in a recent case by the Calcutta High Court1, where the view was taken, that these sections do not apply to foreign States, which would therefore, be governed by the rules of customary international law under which they enjoy immunity. The judgments in the Calcutta case have pointed out the desirability of extending the provisions of these sections to suits against foreign States. As the matter is one of policy, the attention of Government is invited to the suggestion of the Calcutta High Court2.
1. United Arab Republic v. Mirza, AIR 1962 Cal 387, (paras. 7 and 8), 396 (para. 27), 397 (para. 31), 400 (para. 42) and 401 (para. 49). (Lahiri C. J. and Bachawat J.).
2. The question was discussed particularly with reference to commercial transactions, at the Asian African Legal Consultative Committee. Seeproceedings of the second session (Cairo, Oct. 13, 1958), pp. 11, 23, 29 to 31 and 3rd Session (Colombo, 1960) Proceedings, p. 56 et seq.