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Meherunnissa Begum And Others v. Venkat Murli Manohar Rao .

Andhra Pradesh High Court

Jan 13, 1955

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The respondent (decree-holder) originally filed a money suit in the Chanda Court, Central Provinces, against Syed Mustafa (the ancestor of the appellants). Syed Mustafa, a resident of the State in question, did not appear despite service of summons and an ex parte decree was passed in favour of the respondent in 1946. On 20-12-1949 the decree-holder petitioned the Chanda Court for transfer of the decree; notices were issued to the legal representatives of the judgment-debtor but they did not appear. The decree was eventually transferred to the Hyderabad Court for execution on 10-1-1951. The decree-holder also filed a separate execution petition in the Hyderabad Court dated 19-7-1951. Upon service of notice on the legal representatives of the judgment-debtor they appeared and raised objections which were rejected by the trial court. The legal representatives appealed against that rejection; this opinion disposes of that appeal.

Legal Issues Presented

Whether the ex parte decree of the Chanda Court (a foreign court prior to the Constitution) is a nullity or is capable of execution.
Whether the execution petition filed in the Hyderabad Court (dated 19-7-1951) was time-barred — specifically, whether the Hyderabad Limitation Act or the Indian Limitation Act applied and whether any earlier step saved limitation.
Whether the order passed by the Chanda Court on the petition for transfer of the decree was void and illegal on the ground that that court was not competent to pass such an order (and whether such a petition could be considered to be "in accordance with law").

Arguments of the Parties

Appellants' Arguments (legal representatives of the judgment-debtor)

The decree of the Chanda Court was an ex parte decree passed against a person not residing within that Court's territorial jurisdiction and therefore was null and not executable.
The execution petition was time-barred; at the time of the transfer petition the Hyderabad Limitation Act applied and under that law the execution application had become barred.
The judgment-debtors had acquired a accrued right that the petition was time-barred and that accrued right could not be taken away by any subsequent change in the law; reliance was placed on cases (identified in the opinion as A–D).
The order passed on the petition for transfer by the Chanda Court was void and illegal because that court was not competent to pass the order; reliance was placed on other authorities (identified as E and F).

Respondent's Arguments (decree-holder)

No question of the execution petition being time-barred arises: the respondent urged that under the Indian Limitation Act a petition for the transfer of a decree constitutes a petition for a step in and of execution and therefore saves limitation.
The petition of 20-12-1949 was not merely one for transfer of the decree but also a petition for bringing the legal representatives of the judgment-debtors on record; bringing legal representatives on record is a step in execution and thus saved limitation under the Indian Limitation Act.
Relied on authorities including Chinna Vel Naick v. Venkatrama Naick and Manmohandas v. Rashiduddin to support the proposition that such petitions are steps in execution and are in accordance with law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nabibhai Vazirbhai v. Dayabhai Amulakh, AIR 1916 Bom 200	Cited by the appellants in support of limitation-related arguments (treated in the opinion as reference A).	The court treated this case as not directly applicable to the present facts because, in that case, no execution petition had been filed within three years; the court distinguished it from the present facts where an application had been made to the Chanda Court within three years.
Mohesh Narain v. Taruck Nath Moitra, 20 Cal 487	Cited by appellants (identified in the opinion as B) in relation to questions about revival/extinction of rights on change of limitation law.	The court noted the proposition stated in that case (about non-revival of a right where earlier law barred it) but held it did not apply to the present facts — there was no extinction of the decree-holder's right on the change of law.
Appaswamy Odayar v. Subramanian Odayar, 12 Mad 26	Cited by appellants (identified as C) on issues concerning which limitation law applies when the period changes.	The court held this authority concerned alteration in the period of limitation and was not applicable to the facts of the present case.
Khunni Lal v. Govindkrishna, 33 All 356	Cited by appellants (identified as D) on similar questions of alteration of limitation periods.	The court held this authority was also not applicable to the facts of the present case.
Ram Raj Dassundi v. Mt. Umaji, AIR 1926 All 345	Cited by appellants (identified as E) in support of the contention that the transfer order was void because the transferring court lacked competence.	The court noted the citation but did not discuss the authority in detail because the transfer order in the present case was passed after the Constitution came into force; the court therefore did not rely on this authority to decide the appeal.
Amritlal v. Murlidhar, AIR 1922 Pat 188	Cited by appellants (identified as F) in support of the incompetence argument regarding the transfer order.	The court did not examine this authority in detail for the reasons explained (transfer order passed after the Constitution); it did not treat this authority as decisive for the present facts.
Chinna Vel Naick v. Venkatrama Naick, AIR 1932 Mad 19	Cited by the respondent (identified as G) for the proposition that a petition for transfer or for substitution of legal representatives is a step in execution and saves limitation.	The court accepted this authority as supporting the view that the 20-12-1949 petition was a step in execution and in accordance with law, and that it saved limitation.
Manmohandas v. Rashiduddin, AIR 1927 All 698	Cited by the respondent (identified as H) for the same proposition regarding steps in execution and substitution of legal representatives.	The court relied on this authority along with Chinna Vel Naick to support its conclusion that the transfer/substitution petition constituted a step in execution and saved limitation.
Brajmohan Bose Benimadhav v. Kishori Lal Kishenlal, AIR 1955 Madh B 1	Cited by the court to support the proposition that an ex parte personal decree is not an absolute nullity merely because it was passed against a non-appearing defendant; and that, after the Constitution, a foreign court's decree may be executable.	The court relied on this authority to reject the appellants' contention that the ex parte decree was a nullity; it supported the view that the decree was valid and, after the Constitution, became capable of execution like other decrees.
Dyna Craft Machine Co. v. Syed Jehangir Ali, AIR 1953 Hyd 19	Cited by the court to support the proposition that after the Constitution the Chanda Court ceased to be a foreign court and its decrees became capable of execution.	The court cited this authority as supporting its conclusion that the decree was enforceable in the Hyderabad Court post-Constitution.
Bhagwan Singh v. Raja Ram, AIR 1951 Bom 125	Cited by the court for the same general proposition regarding enforceability after the Constitution.	The court cited this Bombay High Court decision in support of the conclusion that the decree was not an absolute nullity and could be executed after constitutional change.
Venkappa v. Lachmikant Rao, 32 Deccan LR 320	Cited by appellants (identified as L) to support the contention that, under the Hyderabad Limitation Act, a petition for transfer could not be treated as a petition for execution and thus could not save limitation.	The court expressly rejected the contention based on this authority, finding that under the Indian Limitation Act the petition in question was a step in execution and that the Indian Limitation Act was applicable to the Hyderabad State at the relevant time.

Court's Reasoning and Analysis

The court considered the parties' contentions sequentially and explained why each contention of the appellants failed on the facts and law as presented in the opinion.

First contention — validity/executability of the ex parte decree:

The court acknowledged the decree was ex parte and personal against Syed Mustafa who did not appear. However, the court concluded that this did not render the decree an absolute nullity; the Chanda Court had jurisdiction because the cause of action arose within its jurisdiction.
Although such a decree might not have been enforceable outside the court originally exercising jurisdiction under the then-prevailing Code of Civil Procedure, the coming into force of the Constitution changed the position: the Chanda Court ceased to be treated as a "foreign court" and its decrees became capable of execution under Article 261(3) of the Constitution.
The court relied on earlier decisions (including Brajmohan Bose Benimadhav and decisions from Hyderabad and Bombay High Courts) to support the conclusion that the ex parte decree was valid and not a nullity and that it became executable post-Constitution.

Second contention — limitation and time-bar:

The court observed that the Indian Limitation Act was made applicable to the State of Hyderabad on 1-4-1951, and the execution petition in Hyderabad Court was filed on 19-7-1951 — after the Indian Limitation Act applied.
The court applied Article 182 of the Indian Limitation Act, which prescribes three years for filing an execution petition and treats as a relevant starting point the date of a "final order passed on an application made in accordance with law to the proper Court for execution or to take some step in and of execution of the decree or order."
The court examined the petition of 20-12-1949 filed in the Chanda Court and concluded that it was not merely a transfer petition but also a petition for bringing the legal representatives of the judgment-debtor on record. Under the Indian Limitation Act such a petition qualifies as a step in execution and is "in accordance with law."
The court therefore held that the 20-12-1949 petition saved limitation for the later execution petition filed on 19-7-1951. The court rejected appellants' reliance on authorities to the contrary (including Venkappa and other cases) by distinguishing the present facts and by observing that the transfer order was actually passed on 10-1-1951 (i.e., after the Constitution came into force), which affected competence considerations.
The court further considered and distinguished authorities relied upon by the appellants regarding non-revival of rights on change of limitation law, concluding there was no extinction of the decree-holder's right in the present facts and therefore no question of preventing revival arose.

Third contention — competence of the Chanda Court to pass the transfer order:

The court noted the petition for transfer was dated 19-12-1949 but the Chanda Court actually passed the transfer order on 10-1-1951, i.e., after the coming into force of the Constitution.
Because the order was passed after the Constitution came into force, the court declined to engage in a detailed discussion of the authorities cited by the appellants on the competence point; it concluded that the petition and the order were in accordance with law and sufficient to save limitation.

On the basis of the foregoing, the court concluded that none of the objections raised by the appellants had merit: the decree was valid (not an absolute nullity), the earlier petition saved limitation, and there was no basis to treat the transfer as void or illegal in the circumstances shown.

Holding and Implications

Holding: The appeal is DISMISSED. The court found no force in the appellants' contentions and upheld the rejection by the court below of the objections raised by the legal representatives of the judgment-debtor.

Direct consequences and implications for the parties:

The ex parte decree of the Chanda Court (1946) was held to be valid and not an absolute nullity; following the coming into force of the Constitution the Chanda Court ceased to be treated as a foreign court and its decrees are capable of execution in the Hyderabad Court.
The execution petition filed in the Hyderabad Court on 19-7-1951 was not time-barred because the petition filed in the Chanda Court on 20-12-1949 constituted a step in execution and saved limitation under the Indian Limitation Act as applied to Hyderabad.
The order effecting transfer of the decree and the petition to bring legal representatives on record were held to be in accordance with law for the purposes of saving limitation.
The court passed no orders as to costs of this Court.

Broader legal effect: The opinion resolves the specific dispute between these parties and applies existing principles concerning (a) the effect of constitutional change on the status of previously "foreign" decrees, and (b) the saving of limitation by steps in execution (including petitions for transfer and substitution of legal representatives). The opinion does not purport to announce a novel legal principle beyond its application to these facts.

K.S.B

Show all summary ...

1. This is an appeal on behalf of the legal representatives of the judgment-debtor which arises out of execution proceedings started by the decree-holder-respondent. The respondent filed a money suit against Syed Mustafa, the ancestor of the appellants, in the Chanda Court, Central Provinces. The defendant, who was the resident of this State did not put in any appearance in spite of service of the summons, and accordingly an ex parte decree was passed in favour of the respondent in 1946. The decree-holder-respondent on 20-12-1949 filed a petition in the Chanda Court for the transfer of the decree to this Court. Notices were issued to the legal representatives of the judgment-debtor but they did not appear. Eventually the decree was transferred to the Hyderabad Court on 10-1-1951 for execution. The decree-holder also filed a separate execution petition in this Court on 19-7-1951. On notice being issued to the legal representatives of the judgment-debtor they appeared and raised various objections.

2. The first argument advanced was that the decree of the Chanda Court was an ex parte decree and that being a decree of a foreign court was not executable. The second contention was that the execution petition was time-barred. The third argument advanced was that the order paysed on the petition for the transfer of the decree by the Chanda Court was void and illegal inasmuch as that court was not competent to pass that order. The court below rejected all these objections against which order is this first appeal on behalf of the legal representatives of the judgment-debtor.

3. Shri Qadir Mohiuddin, the learned Advocate for the appellants, urged first that the decree was not capable of execution inasmuch as it was passed ex parte and against a person, who was not residing within the territorial jurisdiction of that Court. In other words it is contended that the decree was null and void. The second objection raised by the appellants is that at the time when the petition for the transfer of the decree was made, the Hyderabad Limitation Act was applicable to the case and according to that Law the execution application had become time barred. The third contention is that the judgment-debtor had acquired a right to say that the petition had become time barred and this accrued right cannot be taken away by any change in the law. Reliance was placed on the cases of — ‘Nabibhai Vazirbhai v. Dayabhai Amulakh’, AIR 1916 Bom 200 (A), — ‘Mohesh Narain v. Taruck Nath Moitra’, 20 Cal 487 (B), — ‘Appaswamy Odayar v. Subramanian Odayar’, 12 Mad 26 (C) and — ‘Khunni Lal v. Govindkrishna’, 33 All 356 (D). The fourth argument advanced is that the order on the petition for the transfer passed by the Chanda Court was void and illegal inasmuch as that court was not competent to pass that order and that such a petition could not be deemed to be one in accordance with law. The learned Advocate placed reliance on the cases of — ‘Ram Raj Dassundi v. Mt. Umaji’, AIR 1926 All 345 (E) and — ‘Amritlal v. Murlidhar’, AIR 1922 Pat 188 (F).

4. On behalf of the respondent it is argued that no question of the execution petition being time barred arises at all. He contends that according to the Indian Limitation Act, a petition for the transfer of the decree is a petition for a step in and of execution, and it would save limitation. He further submits that the petition of 20-12-1949 was not merely a petition for the transfer of the decree but it was a petition for bringing the legal representatives of the judgment-debtors on record, which again is a step in and of execution and such a petition is not only in accordance with law but has the effect of saving limitation. Reliance was placed on the cases of — ‘Chinna Vel Naick v. Venkatrama Naick’, AIR 1932 Mad 19 (G) and — ‘Manmohandas v. Rashiduddin’, AIR 1927 All 698 (H).

5. After giving a careful consideration to the arguments advanced by the respective lawyers of the parties, we are of the opinion that the contentions of the appellants do not hold good. So far as the first argument is concerned, which refers to the decree of the Chanda Court being null and void, we are of the opinion, that there is not much force in it. It is true that the defendant, Syed Mustafa, did not appear before the said Court and ex parte decree was passed against him and it is a personal decree but it cannot be said that Court had no jurisdiction to pass such a decree when the cause of action arose within the jurisdiction of that Court. No doubt it can be said that the decree is not enforceable in courts other than the Court, which passed the decree but it cannot be said that it is an absolute nullity. We are, therefore, of the opinion that it is a valid decree. The fact that it cannot be enforced in any other court would not make it a nullity. We are supported in this view by the case of — ‘Brajmohan Bose Benimadhav v. Kishori Lal Kishenlal’, AIR 1955 Madh B 1 (I). According to the Code of Civil Procedure prevalent then, the decree-holder could not directly execute the decree here in the courts of the Hyderabad State and had to file a regular suit on the basis of the foreign decree under Section 8 of the Hyderabad CPC, but before the decree-holder could take such a step the Constitution came into force. After the coming into force of the Constitution, the Chanda Court has ceased to be a foreign Court and its decrees are capable of execution as any other decree passed by this Court, under Article 261(3) of the Constitution. We are supported in this view not only by the rulings of our own High Court but by a judgment of the Bombay High Court; see — ‘Dyna Craft Machine Co. v. Syed Jehangir Ali’, AIR 1953 Hyd 19 (J) and — “Bhagwan Singh v. Raja Ram’, AIR 1951 Bom 125 (FB) (K). In the result we do not find any force in this argument and it fails.

6. The second contention is equally faulty that the execution application is time-barred. It is not correct to say that the Hyderabad Limitation Act applies to the case. When the execution petition was filed the Constitution of India had already come into operation. The Indian Limitation Act was made applicable to the State of Hyderabad on 1-4-1951; whereas the execution petition is dated 19-7-1951, that is, it has been filed after the Indian Limitation Act was made applicable to the State of Hyderabad. According to Article 182, Indian Limitation Act, the period prescribed for filing an execution petition is three years from the date of the decree or order or (where there has been an appeal) the date of the final decree or order of the appellate Court or withdrawal of the appeal or (where there has been a review of judgment) the date of the decision passed on the review or (where the decree has been amended) the date of amendment or (where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in and of execution of the decree or order.

7. It is not denied that the decree-holder had filed an application on 20-12-1949 to the Chanda Court. The contention is that it was not a petition for execution but one for the transfer of the decree and such a petition is not in accordance with law nor a step in and nor can it save limitation. We do not agree with this contention. The learned Advocate for the appellant concedes that if this petition is to be considered according to provisions of the Indian Limitation Act, it can be said to be in accordance with law. What is contended is that as the Hyderabad Limitation Act was applicable and according to the provisions of that Act a petition for the transfer of the decree could not be a petition for execution as such it cannot save limitation. Reliance was placed on the case of — ‘Venkappa v. Lachmikant Rao’, 32 Deccan LR 320 (L). We do not accept this contention also. As discussed above, the decree-holder could have filed a suit on the basis of the decree in this Court. Instead of doing so he put in a petition for the transfer of the decree. The right of the decree-holder to file such a petition is not denied. The only question is whether it is a petition in accordance with law. Further is it merely a petition for the transfer of the decree or is it anything more? From a perusal of the petition we find that it is not merely a petition for the transfer of the decree but it is also a petition for bringing the legal representatives of the judgment-debtor on the record. A petition for the transfer of the decree or for bringing the legal representatives on record according to the provisions of the Indian Limitation Act is a step in and of execution and in accordance with law. We are supported in this view by the cases of AIR 1932 Mad 19 (G) : AIR 1927 All 698 (H).

8. We do not wish to discuss in detail the authorities cited by the appellants for in our opinion the Limitation Act applicable to the petition at the time of the transfer petition was the Indian Limitation Act and not the Hyderabad Limitation Act. It is equally wrong to say that such an application is not in accordance with law. What is contended is that at the time when the application of the decree-holder was made in the Chanda Court requesting the Court to transfer the decree that court was not competent to transfer and therefore an order passed by an incompetent Court cannot be deemed to be one in accordance with law. It is true that the decree-holder did file a petition for the transfer of the decree on 19-12-1949 but the Court did not pass any order for the transfer on that date but actually passed the order for the transfer on 10-1-1951, that is, after the coming into force of the Constitution. The fact that the petition for the transfer was dated earlier could not become material. In view of this fact we do not wish to discuss the authorities cited on behalf of the appellants. We are, therefore, of the opinion, that the petition of the decree-holder for the transfer of the decree and for the substitution of the legal representatives is a petition for a step in and of execution and is in accordance with law and is sufficient to save limitation. It is further submitted that at the time when the decree was transferred on 10th January 1951, the Indian Limitation Act was not applicable but the Hyderabad Act was applicable and according to the provisions of the Hyderabad Act, the petition had become time barred and that a right so extinguished cannot be revived by a change in the law. The learned Advocate relied on the cases of 20 Cal 487 (B) : 33 All 356 (D) and 12 Mad 26 (C) in support of his contention. In the case of 20 Cal 487 (B), it was held that:

“With reference to the coming into operation of the subsequent Limitation Act 15 of 1877, S. 2 of the latter Act prevented the revival of any right to sue already barred by the previous Act, as the right now claimed had been.”

9. There is no question of extinction of the right in the present case when the new Limitation Act came into force. This ruling, in our opinion, does not apply to the facts of the case and does not help the contention of the learned Advocate for the appellants.

10. 12 Mad 26 (C) and 33 All 356 (D), are both cases where by the later Acts there was an alterantion in the period of limitation and the question was whether the earlier or later Act applied. This is not so in the present case and in our opinion these rulings do not apply to the facts of the case. As discussed above in the present case it cannot be said that the right of the decree-holder has been extinguished. It is contended that the execution petition must be brought within the period prescribed by the local law of the State and if it is not within the period prescribed by the local law of the State though it is within time according to law in the foreign country it would be deemed to be time-barred. Reliance was placed on the case in AIR 1916 Bom 200 (A). We do not agree with this contention for AIR 1916 Bom 200 (A) was a case where the decree-holder had not filed at all any execution petition in the Kalol Court within three years. In these circumstances it was rightly held by Batchelor and Shah, JJ. that the execution petition was time barred. This ruling does not help the contention of the appellants as in this case the decree-holder had applied to the Chanda Court within three years. In the result we do not find any force in the argument that the judgment-debtors have acquired any right to say that the petition is time-barred and it cannot be taken away. In our opinion, no such question arises. We are, therefore, of the opinion, that the petition of the decree-holder in the Chanda Court is sufficient to save limitation and no question arises of the execution petition being time-barred.

11. In the result, we find no force in this appeal and it is, therefore, dismissed. We pass no orders as to costs of this Court.