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Punjab Co-Operative Bank Ltd. v. Bikram Lal And Others

Punjab & Haryana High Court
Sep 30, 1958
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

Ex. First Appeals Nos. 47 and 48 of 1951

Attorney(S)

S.D. Bahri

J.N. Seth and R. Sachar for Minor (Amrit Lal)

JUDGES

D. Falshaw

I.D Dua, JJ.

ACTS

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Factual and Procedural Background

These two appeals arose from execution proceedings connected with decrees whose execution had been pending in the Court at Ferozepur immediately before the appointed day of 15-8-1947. The matters originally came before Bishan Narain, J., who referred two specific questions to a larger Bench by an order dated 18-11-1955. The decree-holders had applied to the Courts which had passed the decrees to execute those decrees against the legal representatives of judgment-debtors; execution-related proceedings were also pursued in Lahore after 15-8-1947. The judgment-debtors contended that the Lahore Courts were "foreign" and that applications there were therefore ineffective. The Bench considered the effect of para 4 (sub-paras (1) and (3)) of the Indian Independence (Legal Proceedings) Order, 1947, Sections 42 and 50 of the Code of Civil Procedure (CPC), and a series of authorities addressing whether substitution of legal representatives is a matter of procedure or jurisdiction. The court ultimately allowed both appeals, set aside the orders below, and remanded the matter to the executing court for further proceedings, fixing a date for appearance and directing that there be no order as to costs in the appellate court.

Legal Issues Presented

  1. Whether the application for substitution of legal representatives must be made only in the Court which passed the decree and, without such an application in that parent Court, execution cannot proceed in the transferee Court.
  2. Whether an application for substitution of legal representatives made in the Lahore Court after 15-8-1947 is valid.

Arguments of the Parties

Decree-holders' Arguments

  • Relied on para 4(1) of the Indian Independence (Legal Proceedings) Order, 1947 to show that proceedings pending in Ferozepur immediately before 15-8-1947 should continue in that court as if the Order had not been passed, implying that Lahore could not be treated as a foreign court for these proceedings.
  • Also relied (or were treated as relying) on sub-para (3) of para 4 to the extent that that provision requires effect to be given in the territories of both Dominions to judgments, decrees or orders passed in such proceedings.
  • Pointed out compliance with Section 50 CPC because they did apply to the Courts which had passed the decrees to execute them against the legal representatives.
  • Invoked precedent (including the Privy Council decision in ILR 3 Luck 314 / AIR 1928 PC 162) to argue that substitution of representatives is a matter of procedure (not jurisdiction) and that non-compliance can be waived or regularised.

Judgment-debtors' Arguments

  • Asserted that the Courts at Lahore were foreign Courts after partition, so applications there were of no avail to the decree-holders.
  • Argued (through counsel) that although objections based on omission to approach the parent Court may be waivable, if not waived then the decree-holder has no right in the first instance to approach the transferee Court for proceedings against the legal representatives. Counsel relied on Official Trustee of Bengal v. Basdeo Bhagat (AIR 1937 Pat 239) to support this contention.
  • The respondents' counsel also referred to other authorities and attempted to distinguish or rely upon them to support the exclusivity of the parent Court's role under Section 50 CPC in substitution matters.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
ILR 3 Luck 314 (AIR 1928 PC 162) (Privy Council) Held that substitution of legal representatives is a matter of procedure and not of jurisdiction; non-compliance with the procedure can be waived. The court relied heavily on this authority to conclude that the matter is procedural and that a transferee Court's exercise of jurisdiction in such matters (even if irregular initially) may be acceptable or regularisable; used to support allowing execution in transferee Court in appropriate circumstances.
Sham Lal Pal v. Madhu Sudan Sircar (ILR 22 Cal 558) One of the decisions referred to in discussions about Section 50 and its interpretation (supports the view that substitution may be treated as procedural). Referenced (via Privy Council and subsequent cases) as part of the body of authority supporting the procedural character of substitution under Section 50.
Amar Chandra v. Guruprosonno (ILR 27 Cal 488) Referenced in the context of interpreting Section 50 as procedural rather than jurisdictional. Used as part of the chain of authorities that the court relied on when concluding Section 50 does not confer exclusive jurisdiction.
Swaminatha Aiyar v. Vaithianatha Sastrial (ILR 28 Mad 466 (FB)) Another authority referred to in the same line of decisions about Section 50's interpretation. Cited by the Privy Council and relied on by the court as part of the precedent base supporting the procedural view.
Mt. Begam Bibi v. Bulaqi Shah (AIR 1926 Lah 34) Held that application for substitution can be made to the transferee Court and that failure to apply to parent Court is a mere irregularity covered by Section 99 CPC. Followed as supportive authority for the proposition that transferee Courts may entertain substitution applications and that such irregularities are curable.
Marahmat Husain v. Oudh Commercial Bank Ltd. (AIR 1931 All 320) Observed that Section 50(1) does not confer exclusive jurisdiction on the Court which passed the decree; applications may be made to the transferee Court for execution; procedure should not obstruct justice. Relied on by the court to reinforce that Section 50 is not exclusive and that transferee Courts possess jurisdiction to execute decrees sent to them (supported also by Section 42 CPC).
Official Trustee of Bengal v. Basdeo Bhagat (AIR 1937 Pat 239) Relied upon by respondents' counsel to argue that omission to approach the parent Court may not be waivable and thus transferee Court cannot be approached in the first instance. The court considered the reliance but treated the Patna decision as of limited assistance on the facts before it and did not accept it as overriding the line of authority treating the matter as procedural.
Muthukaruppan Chettyar v. Sellami Achi (AIR 1938 Rang 385) Confirmed Section 50 matters are procedural; on its facts, separation of territory (Burma) and statutory time limits prevented transferee Court from proceeding. Distinguished on factual grounds: the court used it to show that factual circumstances (e.g., separation and statutory time limits) can prevent transferee Courts from proceeding, but it did not negate the general procedural principle.
S.S. Said-ul-Hamid v. Federal Indian Assurance Co. Ltd., New Delhi (AIR 1951 Simla 255) Addressed related questions but did not engage directly with para 4 of the Indian Independence (Legal Proceedings) Order as applied to the appointed day of 15-8-1947. The court found this decision of limited assistance because the relevant operative date for para 4 is 15-8-1947 and the facts of that case differed in timing.
AIR 1954 Pepsu 115 A Single Judge decision that relied on AIR 1937 Pat 239 and Prasadi Mahton v. Ghulam Murtaza (AIR 1951 Patna 18); interpreted by that judge in a way that suggested exclusivity of the parent Court. The present court expressly disagreed with any conclusion that Section 50 confers exclusive jurisdiction on the parent Court and therefore did not follow the restrictive interpretation attributed to this authority.
Prasadi Mahton v. Ghulam Murtaza (AIR 1951 Patna 18) Referenced via the Pepsu decision in argument about exclusivity of jurisdiction under Section 50. Not treated as persuasive to override the Privy Council and other authorities establishing the procedural character of substitution under Section 50.

Court's Reasoning and Analysis

The court's analysis proceeded in several interlocking steps, grounded in the text of para 4 of the Indian Independence (Legal Proceedings) Order, 1947, Sections 42 and 50 CPC, and the cited authorities.

  1. Interpretation of para 4(1) and (3) of the Indian Independence (Legal Proceedings) Order, 1947:
    • Para 4(1) preserves continuation of proceedings pending immediately before the appointed day (15-8-1947) in the same court (here, Ferozepur) as if the Order had not been passed—thus those proceedings continued in Ferozepur and that court could not be treated as foreign for such proceedings.
    • Para 4(3) requires that effect be given within the territories of either Dominion to judgments, decrees or orders of such courts "as if" they had been passed by a court of competent jurisdiction within that Dominion—supporting the view that orders passed in proceedings pending before the appointed day must be given effect in both Dominions.
    • The combined reading led the court to conclude that an order passed by the Ferozepur Court in proceedings pending before 15-8-1947 must be given effect in both Dominions and that the Ferozepur Court remained competent to proceed with execution applications.
  2. Application of Section 50 CPC:
    • Section 50 provides that when a judgment-debtor dies before a decree is fully satisfied, the decree-holder may apply to the Court which passed the decree to execute it against the legal representative.
    • In the present appeals, decree-holders did apply to the Courts which passed the decrees, meaning Section 50 formal requirements had been complied with in that respect.
  3. Addressing the contention that Lahore Courts were "foreign":
    • The court found it inconsistent for judgment-debtors to argue both that decree-holders must approach the parent Court wherever situated and also that applications in that parent Court are of no avail because it is in a foreign country.
    • The court noted two possibilities: either a parent Court exists and has been approached, or it does not exist—in either case the decree-holder had taken appropriate steps (either by applying to the parent Court or by moving the Ferozepur Court which was seized of the matter).
  4. Precedential support and procedural vs. jurisdictional distinction:
    • The Privy Council (ILR 3 Luck 314 / AIR 1928 PC 162) and several High Court authorities treat substitution under Section 50 as procedural rather than jurisdictional; non-compliance may be waived or acquiesced in by the judgment-debtor.
    • Cases like Mt. Begam Bibi v. Bulaqi Shah and Marahmat Husain v. Oudh Commercial Bank reinforced that a transferee Court may entertain applications for substitution and that procedure should facilitate, not frustrate, justice.
    • The court emphasized that where registry/territorial changes (e.g., partition) place the parent Court in a foreign territory, the transferee Court should, in appropriate circumstances, be held to possess jurisdiction for execution against legal representatives because the matter is procedural and can be regularised.
  5. Section 42 CPC:
    • Section 42 provides that a Court executing a decree sent to it has the same powers as if it had passed the decree; the court used this provision to support the view that the transferee Court can exercise full powers in execution, including dealing with substitution of legal representatives.
  6. Balancing waiver, acquiescence and regularisation:
    • The court observed that questions of acquiescence or waiver typically arise after execution steps have been taken and are then challenged; where proceedings can be regularised, they should be regularised rather than allowed to fail for mere procedural irregularity.
    • The court distinguished decisions (e.g., Official Trustee / Patna) relied upon by respondents on the facts and found them of limited assistance to the respondents' position in the present case.
  7. Conclusion of analysis:
    • The court concluded that Section 50 does not confer exclusive jurisdiction on the Court which passed the decree; the question is primarily procedural and the transferee Court is not completely without jurisdiction to proceed against legal representatives.
    • Accordingly, whether an application for substitution must be made only to the parent Court depends on the circumstances (waiver, impossibility of approaching parent Court, or other sufficient reasons), and an application in the Lahore High Court after 15-8-1947 could be valid on the facts of this case.

Holding and Implications

Holding: APPEALS ALLOWED. The court allowed both appeals, set aside the orders of the Court below, and remitted the matters to the executing Court for further proceedings in accordance with law and the observations made in the opinion. The parties were directed to appear before the executing Court on 27-10-1958 for further dates. There was to be no order as to costs in the appellate court.

Implications:

  • The court expressly held that Section 50 of the CPC does not confer exclusive jurisdiction on the Court which passed the decree for the purpose of substituting legal representatives; the matter is primarily procedural and not jurisdictional.
  • Where proceedings were pending immediately before 15-8-1947 in a Court (here, Ferozepur), para 4(1) and (3) of the Indian Independence (Legal Proceedings) Order, 1947 require those proceedings to be treated as continuing in that Court and that orders in such proceedings must be given effect in both Dominions as if passed by a competent Court in each Dominion; this supports treating transferee Courts as competent to act in appropriate circumstances.
  • Section 42 CPC further supports the transferee Court's power to execute a decree as if it had been passed by itself.
  • The court emphasised that whether a transferee Court may proceed without application to the parent Court depends on circumstances such as waiver, impossibility of approaching the parent Court, or other sufficient reasons; where irregularities can be cured, proceedings should be regularised rather than defeated by procedural technicalities.

Show all summary ...

I.D Dua, J.:— (His Lordship stated the facts and continued): These two appeals originally came up before Bishan Narain, J. who by his order dated 18-11-1955, felt that in view of the importance of the following two questions the case deserved to be decided by a larger Bench:

1. Whether the application for substitution of legal representatives must be made only in the Court which passed the decree and without such an application execution cannot proceed in the transferee Court, and

2. Whether an application for this purpose in Lahore Court after 15-8-1947, is valid.

2. It appears that before the learned Single Judge reliance on behalf of the decree-holders was only placed on sub-para (1) and not on sub-para (3) of para 4 of the Indian Independence (Legal Proceedings) Order, 1947. Para 4 of the Indian dependence (Legal Proceedings) Order, 1947, reads thus:

“4. Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1847—

(1) all proceedings pending immediately before the appointed day in any civil or criminal court other than a High Court in the Province of Bengal, the Punjab or Assam shall be continued in that court as if the said Act had not been passed, and that court shall continue to have for the purpose of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day;

(2) any appeal or application for revision in respect of any proceedings so pending in any such court shall lie in the court which would have appellate or as the case may be, revisional jurisdiction over that court if the proceedings were instituted in that court after the appointed day; and

(3) effect shall be given within the territories of either of the 2 Dominions to any judgment, decree order or sentence of any such court in the said proceedings, as if it had been passed by a court of competent jurisdiction within that Dominion.”

3. From the facts narrated above it would be clear that both the execution proceedings were pending in the Court at Ferozepur immediately before the appointed day, i.e, 15-8-1947. Those proceedings by virtue of para 4(1) were to continue in the Ferozepur Court as if the Indian Independence (Legal Proceedings) Order, 1947, had not been passed. In other words for the purposes of these proceedings the Lahore Court could not be considered to be a foreign Court; and in this view of the matter the Court below, in my opinion, was not right in observing that the order of the Additional District Judge, Lahore, after the 15-8-1947, was the order of a foreign Court with respect to the proceedings in dispute.

4. Reading together sub-paras (1) and (3) of para 4 of the Indian Independence (Legal Proceedings Order, 1947, the picture becomes clearer still. Sub-para (3) lays down that effect must be given within the territories of both the Dominions of India and Pakistan to any judgment, decree or order of any Court such as is referred to in sub-para (1) as if it had been passed by a Court of competent jurisdiction within that Dominion.

5. This, in my opinion, clearly shows that if an order is passed by the Ferozepur Court in the proceedings pending immediately before 15-8-1947, then that order must be given effect to in both the Dominions of India and Pakistan as if it had been passed by a Court of competent jurisdiction. In view of these provisions of law I am inclined to take the view that the Ferozepur Court should be considered to be competent to proceed with the execution application against the legal representatives, just as the Court passing the decree would be.

6. The matter may be looked at from another point of view as well. Section 50 of the CPC lays down that where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. In both the appeals before us the decree-holders did actually apply to the Courts which passed the decrees to execute the same against the legal representatives of the judgment-debtor. Section 50 of the CPC is, in the circumstances, fully complied with.

7. The judgment-debtors, however, say that the Courts at Lahore are foreign Courts and therefore the applications in those Courts are of no avail to the decree-holders. If that is so then the only Court which, can deal with the execution applications is the Ferozepur Court and here also the decree-holders have applied for executing their decrees against the legal representatives of the deceased judgment-debtor. I have not been able to appreciate the contention of the judgment-debtors when they contend in the one breath that the decree-holders must approach the parent Court wherever it may be situated, and in the second breath they object that because the parent Court is in a foreign country therefore an application in that Court can be of no avail.

8. Either there is a parent Court in existence which can properly be approached in accordance with law for the purpose of executing the decree against the legal representatives of the judgment-debtor or there is no such Court in existence. If such a Court is in existence then the decree-holder has properly approached that Court and if there is no such Court in existence then also the decree-holder has moved the only Court which is seized of the matter viz., the Ferozepore Court.

9. There is still another way of dealing with the question which arises for consideration in the present case, in ILR 3 Luck 314 : (AIR 1928 PC 162), their Lordships of the Privy Council after noticing an apparent divergence of opinion among the different High Courts in India on the question of interpretation of Section 50 of the CPC, observed that the matter of getting an order for substitution of the legal representative in place of the deceased judgment-debtor was a matter of procedure and not of jurisdiction and a non-compliance with such procedure could under the law be waived.

10. Their Lordships when dealing with this matter, made a reference to Sham Lal Pal v. Madhu Sudan Sircar, ILR 22 Cal 558, Amar Chandra v. Guruprosonno, ILR 27 Cal 488 and Swaminatha Aiyar v. Vaithianatha Sastrial, ILR 28 Mad 466 (FB) and finally observed as follows:

“After consideration of all the circumstances of the case under appeal, their Lordships come to the conclusion that the Hardoi Court had jurisdiction to deal with the matter of the execution transferred to it; that the exercise of such jurisdiction as against the appellant though irregular in the first instance was submitted to for a considerable time by him. He cannot now be heard to object to the exercise of such jurisdiction and it would be to permit a gross abuse of procedure if he was allowed to do so.”

11. In Mt. Begam Bibi v. Bulaqi Shah, AIR 1926 Lah 34, a Division Bench of the Lahore High Court followed ILR 22 Cal 558 and held that an application for substitution of the legal representative of the deceased can be made to the Court to which the decree has been transferred for execution and in any case if the application is not made to the Court passing the decree it is a mere irregularity which is covered by Section 99 of the CPC.

12. Similarly in Marahmat Husain v. Oudh Commercial Bank Ltd., AIR 1931 All 320 (2), it was observed that Section 50(1) of the CPC does not give an exclusive jurisdiction to the Court which passed the decree for the purposes of substituting the names of legal representatives of the deceased judgment-debtor and an application may also be made to & orders passed by the Court to which a decree has been transferred for execution. In that case also reference was made to ILR 22 Cal 558 and ILR 3 Luck 314 : (AIR 1928 PC 162). Procedure, it has repeatedly been observed, is a handmaid and not mistress of law and rules of procedure should subserve and not govern.

13. Procedure is only a channel to administer law, and it should not be instrumental in impeding or obstructing justice; rules of procedure should always be utilised for advancing and not for defeating the cause of justice. If therefore, as observed by their Lordships of the Privy Council, it is only a matter of procedure, and not of jurisdiction that the Court passing the decree should normally be approached for proceedings against the legal representatives of the judgment-debtor and if failure to approach such Court is a mere irregularity then, where by partition of the country such Court happens to fall in a foreign territory, the transferee Court should in such circumstances be held to possess full jurisdiction to execute the decree against the legal representatives. This principle, in my opinion, is also deducible from the provisions of Section 42 of the CPC which lays down that the Court executing the decree sent to it shall have the same powers in executing the decree as if it had been passed by itself.

14. The learned counsel for the respondents has also placed his reliance on the Privy Council decision mentioned above; he, however, contends that an objection based on the omission to approach the parent Court may be waived but if it is not waived then, so the counsel argues, the decree-holder has no right in the first instance to approach the transferee Court for proceeding against the legal representatives of the judgment-debtor. In support of his contention he has further referred us to the case of Official Trustee of Bengal v. Basdeo Bhagat, AIR 1937 Pat 239.

15. Their Lordships in the reported case after referring to ILR 3 Luck 314 : (AIR 1928 PC 162), observed as follows:

“Their Lordships have held that it is irregular for the Court which has not passed the decree to proceed with the execution against the representatives of a deceased judgment-debtor as under the provisions of Section 50 of the CPC, the application for such execution is to be made to the Court which passed the decree. Their Lordships have, however, held that if the judgment-debtor waived the objection or acquiesced in execution, the proceedings are not void because there is no want of jurisdiction.

16. In my opinion the learned Subordinate Judge has rightly pointed out that the questions of acquiescence or of waiver can only arise when steps have been taken for execution & the Courts are called upon to decide whether the steps taken should stand or should be set aside. We are at a stage when no execution has been issued. When it is brought to the notice of the Court that a certain procedure is irregular, and when the proceedings can be regularised by applications to the proper Court, there is no reason why the Court should allow the irregular proceeding to continue.”

17. It may be noticed that their Lordships of the Patna High Court expressly observed that if the proceedings could be regularised they should be regularised. In the present case the position adopted by the judgment-debtors clearly shows that if their objections are upheld then the proceedings cannot be regularised. The Patna case thus is of not much assistance to the counsel for the respondents. The next case on which he has placed reliance is Muthukaruppan Chettyar v. Sellami Achi, AIR 1938 Rang 385.

18. Here again the learned Judges relied on ILR 3 Luck 314 : (AIR 1928 PC 162), and clearly observed that the matter dealt with by Section 50 of the CPC was one of procedure and not of jurisdiction. On the facts of that case, however, an execution application had been filed in the transferee Court in Burma after Burma had separated from India. It appears that the decree in that case had been passed by a Subordinate Judge in Madras and had been transferred to Burma for execution in October 1936.

19. The order for transfer was received in the court at Burma in October 1936. According to. O. 21, R. 10(a), Code of Civil Procedure, as in force in Burma, it was provided that in the absence an application made by the decree-holder within six months of the date of receipt of the papers the court shall return them to the Court which passed ??? decree with a certificate of the circumstances, his period of six months had expired on the 29-4-1937 when according to the above provision of law ??? papers should have been sent back to the Court passing the decree. The application for execution the transferee Court was made on 19-5-1937.

20. Separation of Burma had taken effect on 1-4-1937. On these facts, the petition which the decree-holder filed on 19-5-1937, was obviously to a court which could not proceed with the application no application had been made within six months om the date of the receipt of the order of transfer ??? these circumstances the learned Judges of the ??? High Court held and in my opinion right ??? that the execution application could not proceed the Burma Courts. The learned counsel then laced his reliance on S.S Said-ul-Hamid v. Fedeal Indian Assurance Co. Ltd., New Delhi, AIR 1951 Simla 255. This is a judgment by a learned ingle Judge of this Court but it is not clear where any proceedings were actually, pending in a court in India on 15-8-1947, which circumstance is atrial for the purposes of interpreting the provisions of para 4 of the Indian Independence (Legal proceedings) Order.

21. The judgment only refers to the circumstance that between 11-10-1947 and 15-4-1948, there were of proceedings pending in the Court of the Senior subordinate Judge at Delhi. In my opinion the only time relevant for determining the applicability and true scope and purpose of para 4 of the Indian Independence (Legal Proceedings) Order, 1947, is the appointed day which is 15-8-1947, this decision is thus not of much assistance to the respondent.

22. Lastly, the learned counsel drew our attention to the judgment of a Single Judge of the erstwhile pepsu High Court reported as AIR 1954 pepsu 115. In that case the learned Judge particularly relied on AIR 1937 Pat 239 and Prasadi Mahton v. Ghulam Murtaza, AIR 1951 Patna 18. If this judgment holds that the Court passing he decree is the only Court which has the exclusive jurisdiction to entertain an application for proceeding against the legal representatives of the judgment-debtor then with the utmost respect I disagree with it. Their Lordships of the Privy Council have in clear and express words laid down that his is a mere matter of procedure and not of jurisdiction.

23. After fully considering the matter I am of he view that Section 50 of the CPC does not confer exclusive jurisdiction on the Court which passed the decree for proceeding against the legal representatives of the judgment-debtor and its a matter purely of procedure and the transferee court is not completely without jurisdiction in dealing with this matter. Section 42 of the CPC also supports this view. My answer therefore to the two questions referred by the learned Single Judge would be—

(1) an application for substitution of legal representatives need not necessarily be made only in he Court which passed the decree and without such an application execution can proceed in the transferee Court. It would, however, depend on the circumstances of each case. If the objection is waived or if otherwise it is not possible to approach the Court which passed the decree or for other sufficient and adequate reason the transferee Court so considers then it can proceed with the execution application; and

(2) an application for this purpose could on the facts of this case be validly made in the Lahore High Court after 15-8-1947.

24. For the reasons given above I would allow both the appeals, set aside the orders of the Court below and send the case back for further proceedings according to law and in the light of the observations made above. The parties are directed to appear before the executing Court on 27-10-1958, when the Court will give another date for further proceedings. There will be no order as to costs in this Court.

D. Falshaw, J.:— I agree.

V.R.B

25. Appeals allowed.

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