P.T Munia Servai v. The Hanuman Bank Ltd., Tanjore (In Liquidation) By Its Official Liquidator

(Delivered by the Offg. Chief Justice)

The appellant P. T. Munia Servai was indebted to the Hanuman Bank. The Bank was ordered to be wound up in 1947. During the liquidation proceedings Munia Servai deposited the title deeds of certain of his properties situate in Tanjore District as security for the amount due from him to the bank. That was on 13-2-1948. On Appln. No. 4085 of 1948 prefered by the Official Liquidators the Court determined the liability of Munia Servai at Rs. 4,80,596-9-0, and he was further directed to deliver his properties to the Liquidators. Subsequent to that, Munia Servai preferred Appln. No. 3701 of 1953 to reduce the quantum of his liablity to the Bank. By agreement between the Liquidators and the debtor, the liability was reduced, and the Court fixed the reduced liability at Rs. 174,238-8-0. By Cl. 3 of its order dated 21st October 1953 this Court directed that out of the amount of Rs. 1,74,238-8-0, a sum of Rs. 25,000 should be paid on or before 21-11-1953 and that the balance should be paid on or before 21-7-1954. Clause 4 of the order dated 21-10-1953 directed that in default of payment of the sum of Rs. 25,000 the entire amount due, that is, Rs. 1,74,238-80 should become immediately payable. The direction in Cl. 6 was that.

“upon the failure of the said P. T. Munia Servai to discharge the liability within the time fixed in Cl. 3, all the said charged properties including the Thanampadigai properties shall be sold for the realisation of the dues,”

Munia Servai however was appointed Receiver of the Thanampadigai properties and he continued in possession as such. Munia Servai did not comply with the directions contained in the order dated 21-10 1953. On 26th August 1957 the Liquidators preferred Appln. No. 1598 of 1957, which was in effect an application to execute the order dated 21-10-1953. The Liquidators sought a direction for the sale of the charged properties and for the appointment of a Commissioner to conduct that sale. The defences to that claim for execution put forward by the judgment-debtor. Munia Servai, were overruled by Subrahmanyam J. by his order dated 26-11-1957. The learned Judge ordered the sale of the properties other than those at Thanampadigai. The learned Judge directed the Liquidators to apply for further directions for the sale of the Thanampadigai properties. It was against this order dated 26-11-1957 that this appeal was preferred by the judgment-debtor, Munia Servai.

In the proceedings before Subrahmanyam J. several defences were put forward in bar of the claim of the Official Liquidators to realise by execution and sale of the charged properties the amount ultimately decreed on 21st October, 1953, in Appln. No. 3701 of 1953. It may not be necessary to set out those contentions. The only plea of the judgment debtor which was also overruled by the learned Judge which was pressed before us by the learned Counsel for the appellant was that the application preferred in August 1957 to execute the decree dated 21st October 1953 was barred by limitation. That was the only question we were called upon to decide.

The question for determination is whether Appln. No. 1598 of 1957, which as we said was in effect an application for execution, fell within the scope of Art. 182 or Art. 183 of the Schedule to the Limitation Act. The contention of the judgment-debtor was that it was Art. 182 that applied and not Art. 183, and that the application having been preferred more than three years after the date of the decree, 21st October 1953, was barred by limitation. The contention of the liquidalors-decreeholders, which was accepted by the learned Judge, was that Art. 183 applied. That if Art. 183 did not apply, the claim would fall within the scope of Art. 182, could not admit of any doubt. Therefore the real question for our consideration is whether the claim of the liquidators-decreeholders fell within the scope of Art. 183.

The period of limitation prescribed by Art. 183—12 years—will apply where an application is to “enforce the judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction.” It was in exercise of the jurisdiction conferred on this Court by the Banking Companies Act (Act 10 of 1949) that the order dated 21st October 1953 was passed. That that jurisdiction was original civil jurisdiction within the meaning of Art. 183 was never in dispute. The learned Counsel for the appellant urged that to attract Art. 183 it was not enough to show that the order under execution was passed by this Court in the exercise of its original civil jurisdiction. It had to be established further that the order, the enforcement of which was sought by the decreeholders, was issued in the exercise of the ordinary original civil jurisdiction of this Courts. So the question for determination is whether the jurisdiction conferred on this Court as a High Court by the Banking Companies Act is ordinary original civil jurisdiction of this Court within the meaning of Art. 183.

That the jurisdiction, in the exercise of which this Court passed the order dated 21st October, 1953 did not come within the purview of the ordinary original civil jurisdiction defined in Cls. 11 and 12 of the Letters Patent could not admit of any doubt. Cl. 11 defined the territorial limits of the jurisdiction, suits arising within which could be tried by this Court in the exercise of the ordinary original civil jurisdiction conferred on this Court by Cl. 12. Is that exhaustive of the ordinary original civil jurisdiction prescribed by Art. 183 of the Limitation Act is the question. The learned Counsel for the appellant invited us to read Art. 183 as if it read:

“……..to enforce the……..order of any Court established by Royal Charter passed in the exercise of its ordinary original jurisdiction conferred by that Charter and defined by it.”

We are unable to read these further words of limitation into Arts 183. In our opinion, for this purpose of Art. 183, the test to decide what constitutes the ordinary original civil jurisdiction of a High Court originally established by Royal Charter is still that laid down by the Privy Council in In the matter of Candas Narrondas; Navivahu v. C.A Turner(1). At page 533, dealing with the contention, that the insolvency jurisdiction of the Bombay High Court, though civil and original was not ordinary, Lord Hobhouse said.

“But their Lordships are of opinion that the expression “ordinary jurisdiction” embraces all such as is exercised in the ordinary course of law and without any special step being necessary to assume it; and that it is opposed to extraordinary jurisdiction which the Court may assume at its discretion upon special occasions and by special orders.”

The order under execution in that case was that passed in the exercise of the insolvency jurisdiction of the High Court, which was entered up as a judgment of the High Court in 1868. Lord Hobhouse observed:

“The judgment of 1868 was entered up by the Hight Court not by way of special or discretionary-action, but in the ordinary course of the duty cast upon it by law according to which every other case of the same kind would be dealt with. It was therefore entered up in exercise of the ordinary original civil jurisdiction of the High Court;”

Judged by that test, the jurisdiction conferred on this Court by the Banking Companies Act is part of its ordinary original civil jurisdiction within the meaning of Art. 183. That jurisdiction has to be exercised in the ordinary course of law without any special step being necessary to assume it. The order dated 21st October 1953 was passed in the exercise of the jurisdiction assumed, not by way of special or discretionary action, but in the ordinary course of duty cast upon this Court by law according to which all cases of the same kind would have to be dealt with. In the application of that principle it is immaterial whether the ordinary original civil jurisdiction, besides that provided for by Cl. 12 of the Letters Patent is one conferred by the Letters Patent itself; or by a separate enactment.

The learned Counsel for the appellant referred to Kuppuswami Nayakar, In re(2). In his order of the reference Kumaraswami Sastri J. observed at page 240:

“I think there is a distinction between the original jurisdiction of the High Court and the Ordinary Original Civil Jurisdiction of the High Court. All applications to the High Court are either civil or criminal. They are Original Civil when matters come for the first time to the High Court, and they are Appellate Civil when they come in the form of appeals. The granting of probates or succession certificates will come within the Original Civil Jurisdiction, but it would not come under Ordinary Original Civil Jurisdiction, which, by the Letters Patent, seems to be confined to suits and matters under Cls. 12 to 21, which refer to the exercise by the High Court of its Ordinary Original Civil Jurisdiction.”

But to answer the question at issue before him, whether under the Indian Succession Act as it stood then, the High Court had jurisdiction to entertain an application for the issue of a succession certificate, the learned Judge was of the view that the test to apply was the one adumbrated by Lord Hobhouse in In the matter of Candas Narrondas; Navivahu v. C. A. Turner. We are not concerned at this stage with the question, whether the learned Judge's tentative conclusion which he reached in that case on the application of that test, was correct. That it was not correct was the view of a Division Bench of the Allahabad High Court in Banaras Bank v. Jyoti Bhushan(3).

It was on an application of the principle laid down in In the matter of Candas Narrondas; Navivahu v. C. A. Turner, that the learned Judges of the Allahabad High Court held in that case, that an order passed by the High Court of Allahabad under S. 186 of the Companies Act was an order passed in exercise of its ordinary original civil jurisdiction and was governed by Art. 183 and not by Art. 182 of the Limitation Act.

Our attention was not drawn to any reported decision bearing directly on the question, whether the jurisdiction exercised by this or other High Courts, originally established by Royal Charter, under the Banking Companies Act is its ordinary original civil jurisdiction within the meaning of Art. 183. The correctness of the principle laid down in In the matter of Candas Narrondas; Navivahu v. C. A. Turner, has never been questioned. It has been consistently applied by Courts in India. We have therefore refrained from examining the other cases cited before us at the Bar. Nor have we considered it necessary to trace the legislative history of Art. 183.

We are content with resting our decision in this appeal on the scope of Art. 183, interpreted in the light of the observations of Lord Hob-house in In the matter of Candas Narrondas; Navivahur v. C. A. Turner. We do not therefore consider it necessary to deal with the other contentions of the learned Counsel for the Liquidators, one of which was that, even if Art. 182 applied, the bar of limitation imposed by that Article should be held to have been removed by S. 45 (C) of the Banking Companies Act. Prima facie that contention looks untenable but it is not necessary to record any concluded opinion of ours even on that question.

We agree with Subramanyam, J., that it was the 12 year period of Art. 183 that applied, and that the claim of the liquidators-decreeholders to enforce the order dated 21 at October 1953 was not barred by limitation.

This appeal fails and is dismissed with costs.

V.C.S