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S.N. Subramanian Chettiar v. Ramanadhah Chettiar
Factual and Procedural Background
An application under Section 39, Civil P.C. was filed by the plaintiff decree-holder in O.S. No. 31 of 1919 before the Subordinate Judge of Cuddalore to bring Ramaswami Chatty on record as legal representative of the deceased defendant 4 and to transmit the decree to the Subordinate Court, Devakotah for execution. The application complied with Rule 138, Clause (1) of the Civil Rules of Practice and the particulars in Clause (a) to (i), Order 21, Rule 11, Civil P.C.; notice was sent to the defendants under Rule 138 Clause (3). Defendant 1 (the appellant) did not object to the legal representative being brought on record nor to transfer per se, but contended that the decree was not executable and was barred by limitation and that these objections should be decided before transfer. The learned Subordinate Judge brought the legal representative on record and ordered transfer, holding that objections to executability could be advanced in the executing Court. The appellant appealed against that order.
Legal Issues Presented
- Whether objections as to the executability of a decree (including pleas of limitation) must be decided by the Court which orders the transfer under Section 39, Civil P.C., or by the Court to which the decree is transferred for execution.
- Whether the order directing transmission of the decree after notice and hearing is a ministerial order not open to appeal, or a matter for determination by the transferring Court.
Arguments of the Parties
Appellant's Arguments
- The decree is not executable and is barred by limitation.
- The Subordinate Judge was bound in law to decide these objections before ordering transfer.
Respondent's Arguments
- The proper Court to decide objections to executability and limitation is the executing Court to which the decree is transmitted.
- The order of the Subordinate Judge directing transmission is only a ministerial order against which no appeal lies.
- Relied mainly on the decision in Chatterput Singh v. Sait Sumari Mal [1916] 43 Cal. 903, as approved in Banku Behari Chatterji v. Naraindas Dutt A.I.R. 1927 P.C. 73.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chatterput Singh v. Sait Sumari Mal [1916] 43 Cal. 903 | Authority relied on by respondent for treating transfer as not requiring determination of limitation by transferring Court. | Distinguished as inapplicable to the present case because that decision concerned a Master of the High Court of Calcutta who had no authority to decide limitation and where notice need not have been issued. |
| Banku Behari Chatterji v. Naraindas Dutt A.I.R. 1927 P.C. 73 | Privy Council approval of the Calcutta decision relied on by respondent. | The Court instructed that the Privy Council observations be understood with reference to special Calcutta practice and did not apply to a Court which had authority to decide limitation and which issued notice and heard the parties. |
| Rajitagiripathy v. Bhavani Shankaran A.I.R. 1924 Mad. 673 | Held that objections as to executability and limitation should be decided by the transferring Court; Section 11, Ex. 4, Civil P.C. (constructive res judicata) applies where debtor had opportunity to plead limitation and failed to do so. | Followed as controlling authority: the Court concluded the Cuddalore Court should have dealt with the appellant's objections and that such objections are for the transferring Court. |
| Mungal Pershad Dichit v. Grija 'Kant Lahiri [1882] 8 Cal. 51 | Principle concerning application of constructive res judicata in execution proceedings. | Referred to in support of the proposition that pleas which might and ought to have been put forward to show decree inexecutable are barred by constructive res judicata. |
| Rajah of Ramnad v. Velusami Thevar A.I.R. 1921 P.C. 23 | Principle concerning constructive res judicata in execution proceedings. | Referred to alongside Mungal Pershad Dichit to justify application of constructive res judicata where objections could have been raised earlier. |
| Muthuveerasami Naidu v. Annamalai Chettiar A.I.R. 1926 Mad. 411 | Followed Rajitagiripathy on the identical question. | Noted as a decision of this Court that followed Rajitagiripathy; used to support the conclusion that transferring Court should decide limitation/executability objections. |
| Arunachalam Pillai v. Shunmugam Pillai [1928] M. W.N. 152 | Recent decision following the earlier Madras decisions on the same question. | Referred to as having followed the two earlier Madras decisions; the Court relied on it in preferring the view that transferring Court must decide such objections. |
| Chutter Putt Singh v. Sait Sumari Mul | Calcutta decision approved by Privy Council (referred to in Banku Behari Chatterji v. Narain Das Butt). | Held inapplicable to present circumstances because that case concerned a forum without authority to decide limitation and where notice need not be issued; distinguished on the facts and practice. |
| Banku Behari Chatterji v. Narain Das Butt | Privy Council observations approving the Calcutta practice. | The Court observed those remarks are to be understood in light of special Calcutta practice and did not control the present case. |
Court's Reasoning and Analysis
The Court examined whether objections to executability, including pleas of limitation, must be determined by the transferring Court or left to the executing Court. It reviewed earlier Madras decisions (notably Rajitagiripathy v. Bhavani Shankaran) which held that where the judgment-debtor had notice and an opportunity to appear, he must raise limitation and related objections before transfer or be barred by constructive res judicata under Section 11, Ex. 4, Civil P.C. The Court distinguished the Calcutta authorities relied on by the respondent (where the forum lacked authority to decide limitation and notice might not have been issued) and concluded those authorities were inapplicable. The Court further held that an application under Section 39 is governed by Section 3(1) of the Limitation Act and therefore the transferring Court must consider limitation. Because the Subordinate Judge had issued notice and heard objections, his order could not be treated as merely ministerial and he was bound to decide the executability objections.
Holding and Implications
Order set aside and petition remanded to the lower Court for disposal according to law.
Consequences: The Subordinate Judge at Cuddalore must decide the appellant's objections as to executability and limitation before any transfer for execution proceeds. The appellant was awarded costs in this Court and in the Court below. The opinion does not purport to lay down a new general precedent beyond applying and following the stated earlier decisions of this Court.
1. This appeal arises out of an application filed by the plaintiff decree-holder in O.S. No. 31 of 1919 on the file of the Court of the Subordinate Judge of Cuddalore for bringing on record one Ramaswami Chatty as the legal representative of the deceased defendant 4 and also for transmission of the decree to the Subordinate Court, Devakotah for execution under Section 39, Civil P.C. As required under Rule 138, Clause (1) of the Civil Rules of Practice, the application stated the particulars set out in Clause (a) to (i), Order 21, Rule 11, Civil P.C. and the circumstances relied on by the petitioner justifying the transmission of the decree; and notice of this application was sent under Rule 138 Clause (3) to the defendants. Defendant 1, the appellant before us, did not offer any objection to the legal representative being brought on record. He did not object to the transfer of the decree also, but he contended that the decree was not executable for various reasons and that these objections should be decided before the transfer was ordered. The learned Judge brought the legal representative on the record and ordered the transfer of the decree to the Devakottah Sub-Court as prayed for, holding that the objections which defendant 1 has raised as to the executability may, if so advised, be advanced in the executing Court.
2. In this appeal, defendant 1 argues that the decree is in executable and is barred by limitation and that the Subordinate Judge was bound in law to dispose of these objections before ordering the transfer. The respondent contends that the proper Court to deal with these objections is the executing Court and that the order of the Subordinate Judge is only a ministerial order against which no appeal lies. He relies mainly on the decision in Chatterput Singh v. Sait Sumari Mal [1916] 43 Cal. 903, which is referred to with approval in Banku Behari Chatterji v. Naraindas Dutt A.I.R. 1927 P.C. 73.
3. The question whether the objections as regards the executability of the decree should be decided by the Court which transfers the decree or the Court to which it is transferred for execution, was considered and decided by this Court in Rajitagiripathy v. Bhavani Shankaran A.I.R. 1924 Mad. 673, in favour of the view advanced on behalf of the appellant. In that case the learned Judges accepted the argument that if the debtor had an opportunity of appearing and pleading that the application was barred by limitation and failed to do so, Section 11, Ex. 4, Civil P C, will be applicable and that the question would be res judicata because it was one which might and ought to have been put forward to show that the decree was not one that was executable. After referring to the leading cases Mungal Pershad Dichit v. Grija 'Kant Lahiri [1882] 8 Cal. 51 and Rajah of Ramnad v. Velusami Thevar A.I.R. 1921 P.C. 23. as regards the application of the principle of constructive res judicata in execution proceedings, the learned Judges stated their conclusion thus;
It would appear from this, that even in an application for transfer of a decree it is open to the judgment-debtor to plead limitation, and in fact he ought to do so. If the decree is barred by limitation the transfer of it to another Court is a more infructuous proceeding which ought not to be taken and, therefore, if a valid plea of limitation is available it should be urged in order to prevent multiplicity of proceedings.
4. According to this decision it is clear that the Cuddalore Court in this case should have dealt with the objections which the appellant urged as regards the executability of the decree; and that it is the proper Court to deal with such objections. This case was followed in the decision reported in Muthuveerasami Naidu v. Annamalai Chettiar A.I.R. 1926 Mad. 411, to which one of us was a party. The identical question again came up for consideration very recently in Arunachalam Pillai v. Shunmugam Pillai [1928] M. W.N. 152 and the learned Judges followed the two earlier decisions of this Court we have referred to. In this last case, the two Calcutta cases relied on by the respondent were referred to and distinguished. In our opinion, the decision in Chutter Putt Singh v. Sait Sumari Mul approved by the Privy Council in Banku Behari Chatterji v. Narain Das Butt is inapplicable in the circumstances of the present case. In that case the question was whether the Master on the original side of the High Court of Calcutta who had no authority to decide limitation could receive a decree by ordinary transmission in a case where he need not have been issued notice and no one appeared for the judgment-debtor. We have here to consider whether a Court which had authority to decide questions of limitation and which was bound to issue notice and heard the parties can decline to go into the question of limitation and other grounds rendering the decree inexecutable. We are inclined to think that it cannot decline both on principle and on the authority of the previous decisions of this Court. The observations of the Privy Council in Banku Behari Chatterji v. Narain Das Dutt should be understood with reference to the special practice prevailing in the Calcutta Courts. If the judgment-debtor after receiving notice to show cause why the decree should not be transferred to another Court for execution does not raise all his objections to execution, such as limitation, discharge etc., it will not be open to him to raise such pleas in a later execution petition on the ground of constructive res judicata.
5. Further, it appears to us that the application under Section 39 is an application governed by Section 3(1), Lim. Act, and the Court must go into the question of limitation. It also appears to us that the order having been passed by the Subordinate Judge after the issue of notice to the judgment-debtor and hearing his objections, cannot be considered to be a ministerial order.
6. We must therefore, set aside the order and remand the petition to the lower Court for disposal according to law. We may note that apart from the plea that the decree is not executable, no other objection to the transmission of the decree has been urged before us by the appellant. The appellant will get his costs here and in the Court below.
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