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Report No. 54

Chapter 1G

Suits in Particular Cases

Introduction

1G.1. Part 4 of the Code, sections 79 to 88, deals with "suits in particular cases". These comprise-

(a) suits by or against the Government or public officers in their official capacity (sections 79 to 82);

(b) suits by aliens and by or against foreign rulers, ambassadors and envoys (sections 83 to 87A);

(c) suits against Rulers of former Indian States (section 87B);

(d) interpleader suits (section 88). We shall deal with only such of the provisions in this group as require change.

Section 80

1G.2. One of the most important sections in this part is section 80. We fully concur with the recommendation made in the earlier Report,1 for the repeal of section 80.

1. 27th Report.

Section 82

1G.3. The previous Commission1 considered section 82 at length. It noted that section 82, as it stands at present, prescribes an elaborate procedure which has to be followed before execution of a decree can be ordered against the Government or a public servant etc. The section 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.

1. 27 Report, note on section 82.

1G.4. The previous Commission 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 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 had been proposed.

1G.5. A power to extend the period was also considered desirable, and provided for.

1G.6. The Commission also noted that 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 was made clear.

1G.7. We agree with the above recommendations, but would like to add one minor provision to the effect that the court will, within 3 months, send notice to the Government of the passing of the decree. This is in our view desirable in order to give the Government an opportunity to satisfy the decree. This requirement need not, of course, delay execution, as non-compliance with it, would not effect the validity of the execution.

Recommendation

1G.8. Accordingly, we recommend that section 82 should be revised as follows:-

Execution of decree against Government or public officer-

"82. (1) Where, in a suit by or against the Government, or by or against a public officer in respect of any act1 purporting to be done by him in his official capacity, a decree is passed against the Union of India or a State, or as the case may be, the public officer "execution shall not be issued on the decree unless it remains unsatisfied for a period of three months, or such other period as the Court may fix in a particular case, computed from the date of the decree.

(2) The provisions of sub-section (1) shall apply in relation to an order or award as they apply in relation to a decree, if the order or award-

(a) is passed or made against the Union of India or a public officer in respect of any such act as aforesaid, whether by a Court or by any other authority, and

(b) is capable of being executed under the provisions of this Code or of any other law for the time being in force as if it were a decree.

(3) The Court may, in its discretion from time to time, enlarge the period specified in sub-section (1) or fixed by Court under that sub-section, even though the period so specified or fixed may have expired.2

(4) Where a Court passes any such decree as is referred to in sub-section (1) it shall, within a period of three months from the date on which the decree is passed, send an intimation to the Government pleader thereof of the passing of the decree, but failure to give such intimation shall not affect the execution of the decree."

1. Cf. section 82(1) and 82(2).

2. Cf. section 148, C.P.C.

Section 86

1G.9. Under section 86, a suit cannot be instituted against the 'Ruler of a foreign State' without the consent of the Central Government. We have had this section examined in detail, in view of its importance and in view of the developments that have taken place in respect of immunity of sovereign States. A detailed study was undertaken, but here we shall include only a brief summary of the results of the study.

Principles

1G.10. The principle of international law relevant to section 86 is that the Ruler of one State has the privilege to enter another State, a privilege based on the existence of an immunity from the jurisdiction of local courts.1 The immunity is suggested to have been based on several principles:2

(i) Par in pa rem non habet imperium-One sovereign power cannot exercise jurisdiction over another sovereign power, but only over inferiors.

(ii) Reciprocity or comity-In return for a concession of immunity, other States make mutual concession of immunity within their territory.3

(iii) Unenforceabllity-A judgment of a municipal court cannot be enforced against a foreign State or its Sovereign.

(iv) An implication from the circumstances-The permission to a foreign State to function within a State or a foreign Sovereign to visit, signifies a concession of immunity4 from the jurisdiction of the State.

(v) Policy-The merits of a dispute involving the transactions or policy of a foreign government ought not to be canvassed in the domestic courts of another country.5

1. Brownlie Public International Law, (1966), p. 274, see also Schooner Exchange v. Mc Faddon, (1812) 7 Cranch 116.

2. Starks International Law, (1972), p. 253.

3. According to Lord Porter, this is not a basis of, nor limits, the immunity of a State. United States and Republic of France v. Bank of England, 1952 AC 582.

4. Jordan, C.J., has described it as "an implied obligation not to derogate from a grant". Wright v. Cantrell, (1943) 44 SRNSW 40 (52).

5. Per Lord Denning in Rahimtoola v. Nizam of Hyderabad, 5 (1957) 3 All ER 441 (463).

1G.11. In a Bombay case,1 Strachey J. while considering the provisions of section 433 of the Code of 1882 (which corresponds to present section 86), said that this privilege is based on "the dignity and independence of the Ruler, which would be endangered by allowing any person to sue him at pleasure, and the political inconvenience and complications which would result". This view has been approved by the Supreme Court.2

1. Chandulal Khushalji v. Awad, 21 Born 251 (271, 272).

2. Ali Akbar v. U.A.R., AIR 1966 SC 230.



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