H.E.H. The Nizam Mir Barkat Ali Khan v. Mirza Nazir Ali Baig

Kuppuswami, J.:— The Ist respondent herein obtained a decree for a sum of Rs. 80000/- against Asifunnisa Begum in O.S 2 of 1962 on the file of the Chief Judge, City Civil Court, Hyderabad at Secunderabad on the foot of an award made on a private reference. When execution was pending, the judgment-debtor died on 26th December, 1965. Thereupon the petitioner desired to bring on record H.E.H the Nizam Nawab Mir Osman Ali Khan, the former Ruler of Hyderabad on the ground that he was the brother of the Judgment debtor and that as he was in possession of the properties of the Judgment-debtor he was her legal representative. The late H.E.H the Nizam raised an objection that the respondent herein could not proceed against him in execution without the consent of the Central Government. That objection was overruled, and the late Nizam preferred C.M.A 403/66 to this Court. During the pendency of the said appeal, the late Nizam died, and this Court dismissed the appeal observing that it would be open to the legal representatives of the late Nizam to take whatever grounds that are open to them when they are sought to be brought on record in the lower court. The Ist respondent herein thereupon filed E.A 111 of 1967 in the Court of the First Additional Judge, City Civil Court, Hyderabad seeking to bring on record the present Nizam as the legal representative of the deceased Judgment-debtor alleging that he was not only the legal representative of the deceased, but also in possession of the properties of the deceased judgment-debtor. It was held that the application should be made only to the Court which passed the decree. The 1st respondent herein, thereupon filed E.A 8 of 1968 praying that H.E.H the Nizam Mir Barkat Ali Khan may be brought on record as the legal representative of the deceased judgment-debtor, and the execution petition be proceeded with, and the decree executed against him. H.E.H The Nizam, who was the 3rd respondent in the petition, filed a counter affidavit stating that the consent of the Central Government not having been obtained the petition was incompetent, and was liable to be dismissed in limini in view of sec. 87-B read with section 86 of the Civil Procedure Code. As this plea went to the root of the case, and affected the jurisdiction of the Court, he requested that question should be decided as a preliminary issue.

2. The learned Chief Judge overruled the objection raised by him, and he was ordered to be brought on record as the legal representative of the deceased judgment-debtor. He also directed that execution will proceed in accordance with law. The appellant has preferred this appeal against the said order.

3. The question for consideration in this appeal is whether in the circumstances of the case, the petition is not maintainable as against the appellant without the consent of the Central Government under Section 85 reed with Section 87-B C.P.C

4. Section 86(1) so far as it is relevant for the purpose of this appeal, is as follows:—

“No Ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary that Government”.

5. Section 87-B C.P.C states that the provisions of Section 85, and of Section 86(1) and (3) shall apply in relation to the Rulers of any former Indian State as they apply in relation to the Ruler of a foreign State.

6. It is contended on behalf of the appellant that Section 86 applies also to proceedings in execution, and as admittedly, the consent of the Central Government has not been obtained, the petition in the lower court to bring on record the appellant as the legal representative, and to proceed against the properties of the judgment-debtor in his hands, is not maintainable.

7. On a plain reading of Section 86, it is clear that the embargo is on the Ruler being sued. The Expression “Sue” or “Suit” is not defined in the Civil Procedure Code. Mr. Ramaswamy Iyengar drew our attention to the meaning of the expression “Sue” in Wharton Law Lexicon “to prosecute by law, to claim a civil right by means of a legal procedure” and argued that Section 86 applies to all Civil Proceedings including execution. It has, however, been laid down in the decision of the Privy Council in Hansraj Gupta v. Dehra Dun Mussorie Electric Tramway Co., Ltd.,(1):—

“The word “suit” ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint”.

8. Accordingly, construing section 86, it has been held in a number of decisions referred to below including those of the Supreme Court that the expression ‘suit’ occurring in that Section also means a proceeding that commences with a plaint.

9. In Madan Lal Jhun Jhun Walla v. Reza Ali Khan* in U.P(2) it was held that section 86 applies in terms only to suits, and does not apply to insolvency proceedings. It was observed as follows:

“This section in terms applies only to suits. The expression “suit” has not been defined in the Code. By S. 26 Civil P.C every suit is to be instituted by the presentation of a plaint or in such other manner as may be prescribed. Excepting the presentation of a plaint, no other mode of instituting suits has yet been prescribed. A preceeding that does not commence with a plaint is therefore not a suit. An insolvency proceeding is started not by the presentation of a plaint but by the presentation of a petition”.

10. It was also observed that no reliance could be placed on Sec. 141 C.P.C which provides that the procedure in regard to suits shall be followed in all proceedings in any Court of Civil jurisdiction as the rule relating to the protection of Sovereign princes, and ruling Chiefs from being sued as embodied in Section 86, C.P.C is not, a rule of procedure as contemplated by section 141 of the Code. This decision was followed in Indrajitsinghji v. Rajendrasinghji(3) where it was held that Section 86 C.P.C did not apply to a petition for letters of administration with the Will annexed. It was also held that merely because at a subsequent stage such a petition is converted into a suit under the rules of the Bombay High Court, the petition does not become a plaint as understood in section 26 CPC and hence, the proceeding for letters of administration is not a suit as contemplated by Section 86.

11. In H.H The Maharana Sahib Sri Bhagwat Singh Bahadur of Udaipur v. The State of Rajasthan(4), the Supreme court had to consider whether sanction of the Union Government is necessary before a reference is made to the Industrial Tribunal in respect of an adjudication of a dispute between the ruler of Udaipur and his employees. The Supreme Court observed that the dispute was raised before the Industrial Tribunal in a reference under the Industrial Disputes Act, and not before a Civil Court in a suit. The appellant is, therefore, not ‘Sued’ in a court. It was held that Section 86 in terms protects a Ruler from being sued, and not against the institution of any other proceeding which is not in the nature of a suit. A proceeding which does not commence with a plaint, or petition in the nature of a plaint, or where the claim is not in respect of a dispute ordinarily triable in a Civil court, would prima facie, not be regarded as falling under Section 86, C.P.C They observed that section 86 which excludes the jurisdiction of the Civil Court, must be strictly construed. It does not debar the commencement of proceedings for adjudication of an industrial dispute for two reasons; neither party to the proceedings is sued, by the initiation of the proceeding, and the Tribunal is not a Court.

12. The next decision to which our attention is drawn is Nawab Osman Ali Khan v. Sagarmal(5). In this case, it was held that a proceeding under Section 14 read with Section 17 of the Arbitration Act for passing a Judgment, and a decree in an Award does not commence with a plaint, or a petition in the nature of a plaint, and cannot be regarded as a suit, and the parties to whom the notice of the Award is given under Section 14(2), cannot be regarded as “sued” in any court otherwise competent to try the suit within the meaning of Section 86(1) read with Section 87-B of the Code. Neither of those provisions are attracted by reason of Section 41(a) of the Arbitration Act or section 141 of the Code. The Court was compel tent to entertain the proceedings though no consent to the institution of the proceedings had been given by the Central Government.

13. In view of these decisions, in particular the decisions of the Supreme Court, there cannot be any doubt that section 86 has application only to suits which commence with the presentation of a plaint and can have no application to proceedings in execution.

14. Mr. Ramaswamy Iyengar, however, argued that the expression ‘sue’ in Section 86 has to be given a wide meaning as to include every proceeding in a Civil Court. He submitted that before the amendment of the Civil Procedure Code in 1951, Section 86 applied to any foreign prince, or Ruling Chief, and to any Ambassador, or Envoy of a foreign State. The princes who were before the integration of the Indian States, sovereign Rulers of the Indian States, enjoyed the same privileges as the Ruler of a Foreign State. It is an accepted principle of international law that the Court has no jurisdiction to entertain an action or other proceeding against any foreign State, or the Head of Government of any foreign State. This rule of International Law was incorporated in Section 86 of the Code in so far as Rulers of Indian States are concerned subject only to the exception that they may be ‘sued’ with the consent of the Crown Representative. As far as any Ruler of a foreign State is concerned, there is no distinction between a suit or any other civil proceeding. Hence a wide meaning to the expression, “suit” or “Sued” in section 86 has to be given so as to include every civil proceeding. When the Indian States were integrated with British India, the Rulers of the Indian States, and the Government of India entered into covenants, and agreements. In those covenants it was agreed that privileges, dignities, and titles of the Indian Princes would continue to be recognised, and when the Constitution was enacted, the assurances of the covenants were respected under Article 362, which provided that due regard shall be had to the guarantee, or assurance given under such covenants, or agreements with respect to the personal rights, privilege, and dignities of a Ruler of an Indian State. The privilege of exemption from civil jurisdiction except with the consent of the Central Government being one such, the Civil Procedure Code was amended in 1951 whereby Sections 83 to 87 were reenacted. Sec. 86 was amended by deleting all references to Ruling Chiefs. But, Section 87-B was inserted which provided that the provisions of Sections 85, and 86(1) and 86(3) shall apply in relation to Rulers of any foreign Indian State as they apply in relation to a Ruler of a foreign State. It was argued that the interpretation of Sections 86, and 87-B should be made in the light of this historical, and legislative background.

15. Mr. Ramaswamy Iyengar relied on certain observations in Kuthalidath Narayan Mootha v. The Cochin Sirgar Represented by Mr. K. Narayana Marar Avergar, Dewan of Cochin now represented by Mr. A.R Banjerjee present dewan of Cochin(6) In that Case the Raja of Cochin was sued not as such but in his capacity as trustee of certain temples. It was held that even in such a case the consent of the Governor-General in Council had to be obtained. The learned Judge referred to the general rule of International Law that foreign States and Sovereigns cannot be sued in England on their obligations whether ex-contractu, quasie contractu, exdelicto, and stated that this general rule with certain exceptions specified and clearly defined in the Section itself which exceptions are of legislative extension of the jurisdiction ordinarily exercised by Municipal Courts and are made to depend upon the consent of the Governor-General in Council being previously obtained.

16. Reliance was also placed on certain observations of the Supreme Court in Mohanlal Jain v. His Highness Maharaja Shri Swai Mansinghji, ex-ruler Jaipur(7). The question that had to be considered by the Supreme Court in that case was whether consent of the Government was necessary not only for filing the suit against the Ex-Ruler, but also for its continuation from the time consent was required. It was held that a person is ‘sued’ not only when the plaint is filed, but is ‘sued’ also when the suit remains pending against him and therefore, neither the suit could be filed nor maintained except with the consent of the Central Government. The word ‘sued’ denotes not only the start, but also the continuation of a Civil action. The Supreme Court was not concerned with the question whether the expression ‘suit’ would include proceedings other than those instituted by the presentation of a plaint.

17. Another decision of the Supreme Court relied on is Narottam Kishore Deb Varman v. The Union of India(8). That decision dealt only with the question whether Section 87-B violated Article 19(1)(f) of the Constitution and was, therefore, un-Constitutional. While considering the legislative background of the Section, their Lordships made the following observations which were relied on:

“The privileges conferred on the Rulers of former Indian States has its Origin in these agreements and covenants. One of the privileges is that of extra-territoriality and exemption from Civil jurisdiction except with the sanction of the Central Government. It was thought that the privilege which was claimed by foreign Rulers and Rulers of Indian States prior to the Independence of the Country should be continued even after independence was attained and the State has become part of India, and that is how in 1951, the Civil Procedure Code was amended and the present Sections 86, 87, 87-A and 87-B came to be enacted in the present form”.

18. Form this it was argued that the exemption is from Civil jurisdiction generally, and not to suits strictly so-called. We do not think that these observations can be relied upon for the purpose of arguing that the expression ‘suit’ in Section 86 can be construed as including every civil proceeding, as their Lordships were not concerned with this question, the only question before them being constitutional validity of Section 87-B, C.P.C On the other hand, in Nawab Usman Ali Khan v. Sagarmal it was pointed out that though a Sovereign foreign State, and a Ruler of such State may enjoy wider immunity from legal proceedings other than suits under the rules of International Law recognised by our courts. The appellant before them was not then a Ruler of a Sovereign State, and could not claim immunity from proceedings other than suits. In view of the categorical pronouncement of the Supreme Court in this decision, we cannot accept the contention of the appellant that Section 86 applies to execution proceedings also.

19. The principle underlying sections 86 and 87-B of the Code of Civil Procedure is that the ex-Rulers should be saved from harassment caused by the institution of false or frivolous suits against them and the Central Government grants permission only when the claim discloses triable issues between the parties, vide, Tokendra Bir Singh v. Government of India(9). Hence it follows that when a disputed claim gets crystalised in the form of a decree containing the solemn adjudication of the claim, there is no longer any question of harassment of the judgment debtor in the eye of law when the plaintiff seeks to execute the decree by filing an execution petition, as it is the duty of the Court to enforce its own decree. Questions as regards the validity of the decree or the sustainability of the suit claim no longer arise during the execution proceedings. It is therefore obvious that sanction of the Central Government is not required under Section 86 CPC for the purpose of executing a decree.

20. The preliminary objection was rightly over ruled by the Court below. Mr. Ramaswamy Iyengar then contended that the court below erred in stating towards the end of its order that the appellant is ordered to be brought on record as the legal representative of the deceased judgment-debtor. It is submitted that as the appellant is being sought to be made liable on the ground that he is in possession of the assets of the judgment-debtor, and is, therefore, her legal representative, unless and until it is proved that the appellant has intermeddled with the estate of the deceased, it cannot be decided that he is the legal representative within the meaning of Section 2(11) of the Civil Procedure Code, and he cannot be ordered to be brought on record as the legal representative of the deceased judgmeat-debtor before that question is determined. We do not think that any serious objection can be taken to this part of the order. Under Section 50, CPC where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court to execute the same against the legal representative of the deceased. All that the decree-holder now says is that the appellant is the legal representative in as much as he is in possession of the assets of the judgment-debtor. In order to substantiate his claim, the appellant has to be made a party to the petition. The decree-holder can execute the decree against him only if he is able to show that the property of the deceased has come to his hands. Section 50(2) expressly provides that such a legal representative shall be liable only to the extent of the property of the deceased which has come to his bands, and has not been duly disposed off. The court, while making the order that the appellant should be brought on record as the legal representative, meant only that he should be made a party to the petition so that the question whether he is in possession of the assets of the deceased, and if so, to what extent, can be decided in his presence. We do not think that the appellant is justified in his apprehension that this order means that he is already held to be liable as the legal representative. That question has to be decided. The court below merely overruled the preliminary objection, and held that execution will proceed in accordance with law. It was justified in doing so.

21. In the result, the appeal is dismissed with costs.