Seeni Nadan (Second ... v. Muthusamy Pillai And...

Oldfield, J.:— I have had the advantage of reading the judgment, which my learned brother is about to deliver, and agree with him as to the effect of the judgment of the Judicial Committee in Ashfaq Husain v. Gauri Sahai(1). On the first point argued we must hold that time began to run on the date on which the decree was made absolute.

I do not think it necessary to add to my learned brother's discussion of the decision in Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*(2), because I should be content to follow it, and should prefer to apply the principle of stare decisis in dealing with a question, such as this, of procedure. In deference however to his opinion I agree to a reference to a Full Bench in the terms be proposes.

Seshagiri Ayyar, J.:— A mortgage decree was obtained on the 28th of August 1901, in the Additional District Munsif's Court, Tinnevelly. The suit was originally instituted in the Principal District Munsif's Court which has jurisdiction over the property mortgaged. It was conceded in the lower Court and it seems fairly clear that at the time of the decree the Additional District Munsif's Court was not assigned any local jurisdiction. Therefore the Additional District Munsif's Court was an auxiliary to the Principal District Munsif's Court and as such the decree may be taken to have been passed by the Principal District Munsif himself. Under the decree money was made payable in six months. By an application to the Principal District Munsif the decree was made absolute on the 16th of September 1904. The present application for execution was made on the 6th of July 1916. It was first contended that as more than twelve years had elapsed since the passing of the decree and since the time fixed for payment, the present application is barred by limitation by virtue of section 48 of the Code of Civil Procedure. But the decree was passed when Act XIV of 1882 was in force and as was held by the Judicial Committee in Ashfaq Husain v. Gauri Sahai the decree-holder had twelve years from the date on which the decree was made absolute.

The more serious contention was this. In June 1910 by a notification in the Fort St. George Gazette the respective jurisdictions of the Principal District Munsif and the Additional District Munsif were fixed, and the property mortgaged fell within the jurisdiction of the Additional District Munsif. Notwithstanding this fact, prior to and after the notification and until February 1914, all applications for execution in the present suit were made to the Principal District Munsif. It was contended on behalf, of the judgment-debtor that these applications were not made to the proper Court and that consequently the present application was barred by limitation. We need only consider the propriety of the application of 12th of July 1913, for, if that was not properly made, the present application was undoubtedly out of time. The Subordinate Judge has held that the application to the District Munsif was a step in and of execution. He was greatly influenced by the fact that the records of the case were in the custody of the Principal District Munsif, and that the decree-holder had vainly tried to induce that officer to transfer these records to the Additional District Munsif. In this Court reliance was mainly placed on Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*. That was also a case from Tinnevelly. After the attachment of the property by the Court which passed the decree the Taluk in which the property was situate was assigned to the jurisdiction of another Court. The learned Judges held that the proper Court for entertaining applications for sale was the new Court and not the Court which passed the decree. The decision very elaborately discusses the whole question of executory process where there is a change in venue after the passing of the decree. There are strong observations suggesting that on the assignment of jurisdiction the Original Court ceases to have any right to execute the decree. At page 473 the learned Judges say:—

“the business of a Couch which loses jurisdiction over a certain area so far as it relates to cases affecting the lands in the transferred area will be ipso facto transferred to the new Court,”

and they point out that suits and execution proceedings stand upon the same footing. They conclude by saying;

“Even if we are wrong in the above view we are prepared to get over the difficulty sought to be raised on the question of jurisdiction by transferring Execution Petition No. 389 of 1909 from the Srivilliputtur Munsif's Court for disposal to the file of the Additional District Munsif of Tinnevelly.”

In another place also they expressed their opinion with some reserve. In the course of the judgment they refer to the decision in Panduranga Mudaliar v. Vythilinga Reddi, in which it was held that the original Court did not cease to have jurisdiction to execute the decree on the transfer of property from its jurisdiction, as such transfer did not take away the jurisdiction which it had to execute its own decree under the Civil Procedure Code. Although the learned Judges who decided Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .* do not say so expressly, it is clear from the trend of their judgment that they dissented from the view taken in Panduranga Mudaliar v. Vythilinga Reddi.

Now the question for consideration, apart from authority, is whether in this state of conflict of decisions I should not on the principle of stare decicis accept the view taken in the later decision or whether the more proper course is to refer the matter to a Full Bench. I am aware that in matters relating to procedure there should be some endeavour to maintain uniformity. But it may not unreasonably be argued that the observations in Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .* are obiter, whereas Panduranga Mudaliar v. Vythilinga Reddi actually decides the case which is on all fours with the present one. If such an argument was addressed to the lower Court it cannot be blamed for falling back upon the express decision in Panduranga Mudaliar v. Vythilinga Reddi and for refusing to act on the observations in the later case. It is true that Subbiali Naicker v. Ramanathan Chettiar has since been followed without further discussion in Maharafah of Bobbili v. Narasaraju Peda Baliara Simhulu Bahadur(3), Kasi Viswanaihan Chetty v. Murugappa Chetty(4), and Sri Rajah Parthasaradhi Appa Rao Bahadur Zamindar v. Sri Rajah Maka Venkatadri Appa Rao Bahadur Zamindar(5), and in Seshadri Iyer v. Anantha Iyer(6). In those cases curiously enough the conflict between Panduranga Mudaliar v. Vythilinga Reddi and Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .* was not emphasised. Nor was there any discussion as to the principles to be applied to such cases. Therefore we have this state of facts; a reported decision directly in point which has not been expressly overruled and a later decision which has been followed and which may be said to contain observations by way of obiter dicta. I think in the interests of litigants and in order that proper guidance may be given to the Courts below, it is desirable that there should be a reference to a Full Bench on the question.

Now I shall give my reasons very shortly for doubting the correctness of Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*. Mr. A. Krishnaswami Ayyar frankly confessed that the reason of the rule for the pronouncement in Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .* is that only one Court can at the same time execute a decree. I think that this proposition is not unexceptionable. For a long time it has been the practice in this Presidency to order concurrent executions of the same decree. Rule 221 of the Original Side Rules of the High Court impliedly sanctions this course. In Saroda Prosaud Mullick v. Luchmeepul Sing Doogur(7), the Judicial Committee stated that there can be concurrent execution of, the same decree. Krishto Kishore Dutt v. Rooplall Dass(8) follows this ruling as also Baij Nath Goenka v. F.H Holloway(9). All these decisions were under the old Code of Civil Procedure. It is not easy to trace in the sections and the orders of the Civil Procedure Code the provisions of law on which this theory is founded. Mr. Ameer Ali in his edition of the Civil Procedure Code seems to incline to the view that the practice is not justifiable on principle. However there can be no doubt that it has always been regarded as undisputed law in this Presidency that there can be concurrent execution. As against these decisions it was said that the view taken by the Judicial Committee in Maharajah of Bobbili v. Narasaraju Peda Baliara Simhulu Bahadur is inconsistent with the theory. I do not think so. In this latter case what the Privy Council said was that after the transfer of the records at the instance of a party from one Court to another it was not open to that party to apply to the Original Court for execution. In the second place I am not satisfied that the Court which passes a decree ipso facto ceases to have jurisdiction by the deprivation of territorial jurisdiction. If a decree was passed by a Court, and if proceedings in execution had been started in that Court, until the records are transferred to another Court, that Court, in my opinion, will have jurisdiction to entertain applications. It is undoubtedly the Court which passed the decree and under section 38 of the Civil Procedure Code a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. The fact that under clause (b) of section 37 the Court to which jurisdiction has been assigned is within the definition of the expression “Court which passed a decree” does not make it clear that the Original Court becomes fundus officio by the tare fact of ceasing to have territorial jurisdiction. It was held with reference to section 234 of the Civil Procedure Code of 1882 in Swaminatha Ayyar v. Vaidyanatha Sastri that, notwithstanding the transfer to another Court for execution, the first Court is the only Court which can entertain applications for bringing in the legal representatives of the parties. That provision has been re-enacted in section 50, clause (1). The expansion of the definition of the term “Court which passed the decree” may enable the party to apply to the transferred Court for bringing in the legal representatives. Supposing after a partial execution by the first Court it is found that there is no property within the jurisdiction of that Court sufficient to satisfy the balance of the decree, then the records would be sent to the Court where either the judgment-debtor resides or where no has got other property. If in these circumstances the records are transferred, cannot the decree-holder regard the application which was made to the Original Court as still pending and ask the transferred Court either to arrest or attach and sell the other properties of the judgment-debtor? If I am right in this, it would show that an application made to a Court which cannot give the particular relief prayed for would be effectual in another Court where that relief can be obtained. I am inclined to agree with the view taken in Calcutta that the Court which passed the decree does not cease to have jurisdiction to entertain applications until the records are sent away to the Court to which jurisdiction has been assigned. Even if I am not right in this conclusion I think it is desirable, as I stated already, that the matter should be set at rest by a pronouncement from a Full Bench having regard to the difference of view between Panduranga Wudaliar v. Vythilinga Reddi and Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*. I would therefore refer for the opinion of the Full Bench the following question:—

Whether the Court which passed the decree is not the proper Court for execution within the meaning of clause (4) of article 182 of Limitation Act by virtue of the fact that the property over which it had jurisdiction at the time of the decree was taken away from it and assigned to another Court at the time of the presentation of the application for execution.

On this reference

A. Krishnaswamy Ayyar (with him T.M Ramaswami Ayyar) for appellant.—After the transfer of the territorial jurisdiction including the area in which the suit hypothecated properties were situate from the Principal District Munaif's Court to that of the Additional District Munsif, the former Court became incompetent to entertain any application for execution whether for sale of properties or for transmission, of the decree to another Court. The transfer of jurisdiction was made by a notification in 1910. The order absolute was passed by the Principal District Munsif on 16th September 1904. The intermediate applications were all made to that Court even after the transfer of torritorial jurisdiction. The previous application of 12th July 1913 which was made to the above Court was not made to the proper Court within the terms of article 182, clause (5) of the Limitation Act. Application for execution can be made only to a Court which passed the decree or a Court to which it is transferred for execution under Order XXI, rule 8, Civil Procedure Code. The Court which passed the decree is for this purpose defined by section 37. The question is governed by the provisions of sections 37, 38 and 150 of the Code. Where the business of a Court is transferred from one Court to another, the former Court ceases to be a “Court which passed the decree” for purposes of execution under section 37 of the Code. Section 37, clause (b) shows that an Appellate Court (which might have passed the decree), is not a Court falling within the definition of section 37. The term ‘include’ in section 37 should be construed as equivalent to “means and includes” though ordinarily it will take in some things in addition to certain other things—Stroud's Judicial Dictionary. The fact that there is no express exclusion of the Court which passed the decree in sections 37 and 38 of the Code is not conclusive. The term ‘include’ is used in a restrictive sense, and from the context only the Court to which jurisdiction is transferred is denoted as the Court which passed the decree for this particular purpose. Even in the case of a transfer of the decree by the original Court to another Court for execution, the transferring Court is not expressly excluded, but still the Privy Council has held that the transferring Court has no jurisdiction to entertain an application for execution. See Maharajah of Bobbili Narasaraju Peda Baliara Simhulu Bahadur Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*, Venlcatachallam v. Sithayamma, Subbayya v. Raohayya, Kasi Viswanathan Chetty v. Murugappa Chetty, Sri Rajah Parthasaradhi Appa Rao Bahadur Zamindar v. Sri Rajah Malia Venkatadri Appa Rao Bahadur Zamindar, Latchman Pundeh v. Maddan Mohun Shye, Begg Dunlop & Co. v. Jagannatha Marwari, Mohendro Narain Chaturaj v. Gopal Mondul.

There is do distinction as to proper Court, whether the application is one for sale of property in execution or the application is worded as one for execution by transmission of the decree for execution to another Court.

K.R Rangaswami Ayyangar for respondent.— Under section 37, the Court which passed the decree does not cease to have jurisdiction to execute the decree by the mere fact that local jurisdiction is taken away from such Court. The Court can sell property outside its jurisdiction in certain cases. Though property is transferred, the Court may execute the decree personally against the judgment-debtor if he remain within its jurisdiction; or the Court may execute by appointing a receiver of properties outside its jurisdiction. For several purposes the Court which passed the decree still has jurisdiction, sometimes exclusive jurisdiction in certain matters relating to execution, even if the decree was transferred to another Court. See Order XXI, rules 3, 6, 8, 10, 16, 26 and 28, and section 39, clause (c) of the Civil Procedure Code; also section 46, under which the Court can issue precepts to another Court.

When only territorial jurisdiction in whole or in part is transferred to another Court, the business of the Court is not transferred to the latter under section 150, Civil Procedure Code.

Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .* is based on the terms of section 150 of the Code, and the observations on the question now under reference are only obiter. The reference to American Cyclopaedia is not in point, as the passage deals with abolished Courts and not to transfer of territorial jurisdiction.

Reference was made to the following cases: Jahar v. Kamini Dabi, Maharajah of Bobbili v. Sri Raja Narasaraju Peda Baliar Simhulu Bahadur, Panduranga Mudaliar v. Vythilinga Reddi, Prem Chand Dey v. Mokhoda Debi, Venkatasami Naik v. Sivanu Mudali, Sivakolundu Pillai v. Ganapathi Ayyar.

A. Krishnaswami Ayyar in reply.—The mode of execution is also part of the application for execution; if the Court cannot grant the relief asked for, the Court cannot entertain the application for execution. See Order XXI, rules 10 and 11, Civil Procedure Code. Stroud's Judicial Dictionary points out that ‘include’ may signify ‘mean and include.’ See Dilworth v. Commissioner of Stamps.

Opinion

Wallis, C.J:— The terms of the reference have, if I may say so, been very properly framed with reference to the terms of article 182, clause (5) of the Limitation Act (4 is a misprint) which makes the date of applying in accordance with law to the proper Court for execution or to take some steps in and of execution of the decree a fresh starting point for the purposes of the article which deals generally with applications for the execution of decrees. The question really is, whether a litigant who has been authorized to bring his suit in a particular Court and has obtained a decree in such Court in his favour, which be is strictly bound to execute within the time limited in article 182, is not entitled to apply as of course to that Court as the proper Court for the purpose of saving limitation under the article, or whether, when he decides to apply for execution possibly at the last moment, he is bound to stop and inquire whether the limits of the territorial jurisdiction of the Court which passed the decree have been altered, and, if so, whether the immovable property which is the subject of the suit or the place where the cause of action arose was within the limits of the transferred area, on pain of losing his right to execute under the article if he omits to make these inquiries or comes to a wrong conclusion when he make them. This last proposition is so unreasonable and involves such hardships to the decree-holder in a country such as India with a stringent law of limitation that we should hesitate to impute such an intention to the legislature if we can possibly avoid it.

Under the Code of 1859 it was open to the decree-holder to apply to the Court which passed the decree to execute itself or to transmit it to another Court for execution, and such an application would have been sufficient for the purpose of saving limitation under article 167 (now 182) of the Limitation Act of 1871. The question is, when and how has the decree-holder been deprived of this right? In 1877 and again in 1882 the Code was repealed, and re-enacted with some re-drafting and re-arrangement which included the insertion of the present sections 37 and 38 in the Code of 1877. Now there is a well-known presumption that such re drafting and re-arrangements leave the substance of the law unaltered, and it follows that such a serious change as the abolition of the decree-holder's right to apply in all cases to the Court which passed the decree in the first instance cannot be raised by implication but should plainly and clearly appear on the language of the sections. Now at the time when the Code of 1908 was enacted there was a long and unbroken series of express decisions that this was not the effect of these sections—Latchman Pundeh v. Maddan Mohun Shye, Kartick Nath Pandey v. Tilukdhari Lall, Kali Pado Mukerjee v. Bino Nath Mukerjee, Jahar v. Kamini Debi, and Panduranga Mudaliar v. Vythilinga Reddi. So that the legislature was well warranted in considering this point as settled. Two questions only had arisen under these sections, one whether the Court which passed the decree had jurisdiction to execute fully a decree for the sale of immoveable property by selling it where the area in which the immoveable property was situated had been removed to another jurisdiction. It was held by the Full Bench in Prem Chand Dey v. Mokhoda Debi that it had not, but it was assumed in that case and expressly decided in Girindro Chunder Roy v. Jarawa Kumari, Pigot, J., being a party to both decisions, that in such a case it was a proper course to apply to the Court which passed the decree to send the decree for execution to the other Court. Then there was a difference of opinion as to whether this was the only proper coarse, or whether after such a transfer the Court which passed the decree could be treated as “having ceased to have jurisdiction to execute the decree” within the meaning of section 649, now section 37, so as by virtue of that section to cause the Court to which the area had been transferred to be regarded as a Court which passed the decree within the meaning of section 223 (now 38). One view was taken in Latehman Pundeh v. Maddan Mohun Shye, Jahar v. Kamini Debi and another in Kali Pado Mukerjee v. Dino Nath Mukerjee and Panduranga Mudaliar v. Vythilinga Reddi. This was the state of the authorities when the Code of 1908 was enacted, and we are told by Messrs Woodboffe and Ameer Ali that it was proposed to enact expressly that application might be made to either Court. The draft section to that effect which dealt with other complicated questions was not adopted, but it seems to me that the legislature brought about the same result in another way. The jurisdiction of the Court which passed the decree was sufficiently recognized by the decisions, as I have pointed out, and indeed had never been doubted up to that time, and there was therefore no need to re-affirm it. The case of direct application to the Court to which the area had been transferred was met by the enactment of the new section 150 which was in terms wide enough to authorize that Court to entertain in the first instance any application which might have been made to the Court which passed the decree.

This, I think, should have settled the question. Unfortunately in Alagappa Mudaliyar v. Thiyagaraja Hdudaliyar when I was sitting with Krishnaswami Ayyar, J., the Advocate-General cited certain American treatises to us passages from which are cited in the later case of Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*, and formed the main ground for that decision, and though we came to no decision we were sufficiently influenced by them to leave the point open and proceed by way of transfer in the particular case. In this, I think, we were wrong. The Privy Council has since deprecated the tendency of Indian. Courts to resort unnecessarily to American instead of the English authorities. That is how I understand their observations in Imambandi v. Mutsaddi, and in this case it would have been better to see how the question had been dealt with in England, especially as the case of the County Courts affords a complete analogy. Those Courts were established some years before the Code of 1859, and have jurisdiction over immoveable property. Power to transfer particular areas from one Court to another was given and has been freely exercised, but it has never been suggested that the fact of such a transfer takes away the power of the Court which passed the decree to entertain application for execution. The power of sending the decree to another Court, if the Court itself was not in a position to execute it, has been found sufficient to meet the case. That, it seems to me, was the scheme of the Code as held in Panduranga Mudaliar v. Vythilinga Reddi until 1908 when section 150 then conferred upon the Court of the transferred area power to entertain the application in the first instance; but this cannot be read as taking away from the Court which passed the decree the power which it then had according to the unbroken current of authorities for many years which the legislature must be taken to have recognized. Again, as the American writers allow, in questions of the kind, the particular statutes must always be looked to, and where, as in the present case, the Code provided two methods of executing decrees both originating in the Court which passed the decree and one of them admittedly applicable to the case, of the area having been transferred to the jurisdiction of another Court before the application for execution, this sufficiently indicated the procedure which the legislature desired to be followed, and removed all occasion for raising inferences which might possibly have had to be raised if the legislature had provided no method at all of executing decrees where the areas had been transferred.

It only remains to refer to the arguments which have been addressed to us on the language of sections 37 and 38 (formerly 649 and 223) to show that all to decisions on this point down to 1908 were wrong. The words to be interpreted are “a decree may be executed by the Court which passed it” in section 38(223), a section first inserted in 1877 and merely declaratory of the existing law. These words again have to be interpreted in the light of section 37, an interpretation clause reproduced from section 649 of the Code. Section 37 provides that the words “Court which passed a decree” shall be deemed to include (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of First Instance, and an argument has been based on this clause. Now it may well be that under sections 37 and 38 the Appellate Court has no jurisdiction to execute its own decree, but that is not because such jurisdiction is excluded by the use of the word ‘include’ as has been argued, but because it had no such jurisdiction under section 362 of the Code of 1859, and it may well be questioned, having regard to the presumption already referred to, whether, when that section was eliminated in re-drafting and the matter was dealt with in sections 649 and 223 (new 37 and 38), there was any intention to confer on the Appellate Court jurisdiction which it had not till then possessed. We have however to deal with clause (b), and where the decree-holder had a valuable right under the Code of 1859 to apply to the Court which passed the decree at least for execution by way of transmission, and where the present Code provides expressly that a decree may be executed by the Court which passed it, the contention that this important right must be held to have been taken away because of the provision in section 37 that these words shall be deemed to ‘include’ another Court appears to me to be altogether untenable. It may be that in some rare and exceptional instances the category of things ‘included’ in a definition may be held to be exhaustive, but ordinarily, as observed in Stroud's Dictionary, it is “a phrase of extensive and not of restrictive jurisdiction”, and it cannot in my opinion be used here to deprive the decree-holder of the important right which he had till then of applying in all cases in the first instance to the Court which passed the decree, especially having regard to the fact that the section itself was inserted when the Code was in process of re-drafting and re-arrangement, when, as I have already said, there is a presumption against alterations by implication only. In Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .* the question does not seem to have been sufficiently argued from the point of view of the decree-holder's rights, and attention was not called to the history of the section Farther the decision is opposed to a long line of authorities which I think the legislature accepted in 1908, and is also mainly based on citations from American treatises which I now think do not afford a satisfactory basis for the decision of a question of this kind, or afford any sufficient reason for answering the question in the negative. Both on principle and on the balance of authority and convenience my answer is that the Court which passed the decree is a proper Court for the purpose mentioned in the question referred to us.

Ayling, J.:— I agree. After careful reconsideration in the light of the arguments now adduced before us, I am inclined to think that, in our judgment in Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*, we went too far in saying that the Court which passed the decree for sale of a property could not even entertain an application for sale of such properties, once they had been transferred out of its territorial jurisdiction. This decision was not necessary for the disposal of the case before us where the question was whether such an application could be properly made to the Court to whose jurisdiction the property had been transferred. I think it could, if only by reason of section 150, Code of Civil Procedure: for this section certainly seems to me to cover the case of the transfer of all the litigations arising out of a tract of country from one Court to another. I would prefer to base this proposition on section 150, rather than on an interpretation of section 37, regarding which I must confess to considerable difficulty. But I am of opinion that the latter section, whatever it means by ceasing to have jurisdiction to execute, does not operate to exclude the Court which actually passed the decree, and to substitute for it another Court; and that it is still open to the decree-holder to apply to the former for execution by way of transmission of the decree to the Court which has territorial jurisdiction.

Sadasiva Ayyar, J.:— The question referred to the Full Bench is “whether the Court which passed the decree is not the proper Court for execution within the meaning of the clause (5) of article 182 of the Limitation Act by virtue of the fact that the property over which it had jurisdiction at the time of the decree was taken away from it and assigned to another Court at the time of the presentation of the application for execution.”

The answer to this question depends upon one's view on the following points:—

(1) Does a Court which passes a decree for sale of land within its jurisdiction at the time of the passing of the decree continue according to general principles of jurisprudence to have jurisdiction to execute (a) such a decree by sale or (b) even to entertain an application for execution of such decree by sale after it ceases to have territorial jurisdiction over that property; (2) even if it has not got the power according to general principles of jurisprudence, has it got such power owing to the provisions of section 37 of the Civil Procedure Code (old section 649, paragraph 2) read with sections 38 and 39 (old section 223)?

On the first point I have very little to add to what has been said in the judgment of Ayling, J., and myself in Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*. That was a considered judgment of ours in which we attempted to show that the Calcutta High Court from 1890 [see Prem Chand Dey v. Mokhoda Debi] Full Bench of five Judges including Justices Prinsep and O'kinealy who were Judges learned in Procedure law) has uniformly held that a Court though it passed a decree for sale ceases to have jurisdiction to execute that decree for sale when the property has passed out of its territorial jurisdiction. The learned Judges refer to section 16 of the Civil Procedure Code as indicating that the Code intended the Courts in this country to have no power to determine any right or interest in any immoveable property lying wholly outside its jurisdiction. The execution of a decree being only a continuation of the suit, there appears to be no legitimate reason

“why a Court in the later stage of a suit should have greater powers than it possessed at its institution.”

The earlier case in Latchman Pundeh v. Maddan Mohun Shye, though quoted by Dr. Rash Behari Ghose in his arguments, must be deemed to have been overruled by this Full Bench decision in Prem Chand Dey v. Mokhoda Debi.

Of course in a matter of procedure when there is a uniform practice of this Court, that must no doubt override even the Full Bench decision of the Calcutta High Court, unless there is a decision of the Privy Council which settles the question for all Courts. I cannot say that there are any such pronouncements of the Privy Council. The case in Kamini Sundari Chaodhrani v. Kaliprossunno Ghose, relied on in Prem Chand Dey v. Mokhada Debi, merely dealt with the power of the High Court as an Appellate Court making a remand order to give jurisdiction to a Court having no territorial jurisdiction over the suit land to deal with a question relating to that land. In Maharajah of Bobbili v. Narasaraju Peda Baliara Simhulu Bahadur, it was held that after the District Court which had passed a decree sent that decree to a District Munsif's Court for execution by the latter Court with a copy of the decree, no execution application could be presented to the District Court for the sale of the property attached by the District Munsif in execution, unless the copy of the decree with a certificate of non-satisfaction was returned back to the District Court. I do not think that any clear guidance can be obtained on the present point from those two Privy Council decisions.

On principles recognized in the Civil Procedure Code, section 16, it seems to me clear that no Court has any jurisdiction either to entertain an execution application for the attachment of property outside its jurisdiction or for the sale of immoveable property outside its jurisdiction or to sell it in execution, even though it had jurisdiction at the time of the passing of the decree to pass such a decree. The fact that at a particular time it was competent to pass a decree for sale cannot mean that its jurisdiction to proceed further could be retained for ever. An extreme case might be taken as an illustration. Supposing the District Munsif of Cuddalore passes a mortgage decree in 1918 for sale of a property within his jurisdiction but situated near the French limits and suppose in this year that property is ceded to the French by treaty with the British, can it be said that in 1920 that decree could be executed by the Cuddalora Munsif or an application for execution of the said property could be entertained by him? On principle, I do not see why the loss of territorial jurisdiction in any other manner not to a foreign power but to a Native State or to some other Court within British India should make any difference.

This question was further considered with reference to the new section 150; Civil Procedure Code, in Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*, and also on general principles on pages 471 and 472 of the same case. It is also clear from Oldfield, J.'s opinion in this Order of Reference to the Full Bench that from 1910 [(see Alagappa Mudaliyar v. Thiyagaraja Mudaliyar up to data—see also Seshairi Iyer v. Anantha Iyer, decided in September 1917: and Venhatasami Naik v. Sivanu Mudali]—the course of decisions has been pretty uniform in this Court on this point. In Begg Dunlop & Co. v. Jagannatha Marwari, Mookerjee, J., with whom Carnduff, J., agreed, held that it was not competent to a Court in execution even of a decree for money to attach a debt payable to the judgment-debtor by a non-resident debtor. The matter is elaborately discussed on principles at pages 233 to 236 citing English and American authorities also, the conclusion being that where the situs of a bond debt is outside the jurisdiction the Court has no power to deal with it. A fortiori it seems to me that where the situs of an immoveable property is outside the jurisdiction, the Court has no power to deal with it unless the statute law gives it such power. Because there was some conflict whether the statute law enacted in sections 223 and 649 of the old Civil Procedure Coda really intended to give such jurisdiction that the legislature seems to have indicated in the new section 150 that the Calcutta view in Prem Chand Dey v. Mokhoda Debi should be followed and not the view enunciated in Panduranga Mudaliar v. Vythilinga Reddi. As to the argument based on the language of section 37 (old section 649) when an expression is said in a statute to include something, it no doubt means ordinarily that it should mean that thing in addition to the thing which the expression naturally means. But it is clear from the context of section 37, namely clauses (a) and (b), that the word ‘include’ in section 37 signifies “mean and include and comprise” and that is a permissible meaning where the context requires it—see Stroud's Judicial Dictionary, pages 945 and 946. If the natural meaning is not to be excluded under any circumstances and in any case so as to substitute for it the new meaning in that case, section 37 ought to be interpreted as follows: the expression “the Court which passed a decree” shall in relation to the execution of decrees be deemed to mean (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction (1) the Court of First Instance and (2) also the Appellate Court or the Second Appellate Court which passed the decree; (b) where the Court of First Instance has ceased to exist or to have jurisdiction to execute it (1) the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suits and (2) also the Court of First Instance which has ??? to exist or to have jurisdiction to execute it. These natural meanings which I have italicised as (a)(2) and (b)(2) which would have to be taken in addition to the new meanings, if the ordinary meaning of ‘include’ was to be given to the word, are inadmissible from the context. Therefore, the real meaning of the section is that the expression “the Court which passed the decree” shall mean, of course, the Court which passed the decree ordinarily but shall exclude that Court and “include and mean” (a) where the decree to be executed, (b) where the Court of First Instance has ceased to exist, etc.

In the result, both on principle and on the interpretation of sections 37, 38, 39 and 150 of the Civil Procedure, Code and on the principle of stare decicis, I am inclined to answer the question against the jurisdiction of the Court which passed the decree but which has lost jurisdiction over the immoveable property sought to be pursued inexecution.

After I had written the above, I had the advantage of perusing the opinions of my Lord and Ayling, J., in this case. I was at first inclined to think that the hardship pointed out by my Lord as caused to a litigant who has obtained a decree and who may not know when he applies for execution to the Court which passed the decree in his favour that its territorial limits had been altered is a matter for the legislature to consider. I would venture to suggest that article 182 of the Limitation Act, clause (5), should be amended by adding after the words “to the proper Court” the words “or to a Court which the decree-holder in good faith believed to have jurisdiction to entertain the application.” This suggestion I would make to the legislature notwithstanding that I have come to the conclusion that I should not differ from my learned colleagues on the narrow question referred to us. I have been much pressed by the fact referred to in the judgment of my Lord that notwithstanding Prem Ghand Dey v. Mokhoda Debi it was held in Girindro Chunder Roy v. Jarawa Kumari that an application might be made to a Court which passed the decree to send the decree for execution to the Court which had jurisdiction to sell the property in execution. On principle I am unable to see any distinction between jurisdiction to entertain an application for sale of property outside the jurisdiction and jurisdiction to execute the decree by sale of such property. I am still inclined to think that section 150 was enacted so as to take away both rights from the Court which ceased to have territorial jurisdiction.

No doubt I quoted the American Cyclopaedia in support of my view in Subbiati Naicker v. Ramanathan Chattiar. I am myself not very familiar with American or English decisions and I felt glad when their Lordships of the Privy Council made the following pronouncements in Imambandi v. Mutsaddi:— “Their Lordships cannot help deprecating the practice which seems to be growing in some of the Indian Courts referring largely to foreign decisions. However useful in the seientific study of comparative jurisprudence, reference to judgments of foreign Courts to which Indian practitioners cannot be expected to have access based on considerations and conditions totally differing from those applicable to or prevailing in India is only likely to confuse the administration of justice.”

The case in which their Lordships made this pronouncement was an appeal against the decision of the Calcutta High Court decided in 1911 in Imambandi v. Mutsaddi. In that judgment, at pages 627 and 630, several English and American cases have been quoted. Not a single foreign decision, however, is referred to in the judgment of their Lordships of the Privy Council on appeal. I take it that, as in the eye of the law, both English and American Courts except, of course, the Privy Council are “Foreign Courts”, their Lordships deprecated quotations from decisions of such Courts. That their Lordships of the Privy Council deprecated unnecessary references to English decisions in their strict sense seems to me to be supported by what Lord Macnaghten said in delivering the judgment of their Lordships in Bhola Nath Nundi v. Midnapore Zemindary Co. as follows:—

“Unfortunately, however, both in the Munsif's Court, and in the Court of the Subordinate Judge, the question was overlaid, and in some measure obscured, by copious references to English authorities, and by the application of principles or doctrines more or less refined, founded on legal conceptions not altogether in harmony with Eastern notions. The result is that, although the decrees appear to be justified by the main facts, which both the lower Courts held to be established, it is impossible to say that the judgments delivered are entirely satisfactory.”

It may be that where questions of International Law or of Commercial Law or Constitutional Law are involved, it becomes indispensable (owing to paucity of Indian decisions) to refer to such cases and even then it would be no doubt advisable to confine ourselves to Eaglish decisions. Also where the Statute Law of India “is silent” and rules of justice, equity and good conscience have to be applied by Indian Courts and such rules have been clearly set out in famous decisions of foreign Courts (such as those collected in Smith's Leading Cases), references to such authorities cannot conveniently be avoided; see the very recent Privy Council decision in Maharajah of Jeypore v. Rukmini Pattamahadevi on the question of forfeiture of tenancy by denial of title, a thing which is “not ancient Indian Law and rules relating to which were adopted by Indian Courts from rules laid down in English cases.

Why than did I quota the American Cyclopædia in Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*? My explanation is that when I was first appointed to the Bench of this Court (about the beginning of 1912) I found that reference to and quotations from American and English treatises and decisions were not only permissible but were generally treated by respectable lawyers of greater learning than I could ever hope to have as indications of a laudable desire to possess an up-to-date knowledge of legal principles and precedents, I, therefore, ventured to do so in that case with great diffidence and I am glad that I am able to give up that practice now. But wholly apart from American treatises and decisions, there seems to be much in principle in favour of the view taken in Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*.

As my lord is inclined to the view that, notwithstanding the enactment of the new section 150 the probabilities are that the legislature did not thereby intend to overrule the then prevalent view of the Calcutta High Court that the Court which passed the decree could entertain as “the proper Court” or as “a proper Court” within the meaning of article 182, clause (5), an application for execution, though it might be bound to transfer the decree for execution to the new Court which has obtained territorial jurisdiction over the land to be proceeded against in execution, and as Ayling, J., who was a party with me to Subbiah Naicker v. Ramanathun Chettiari is also of that opinion, I do not feel strong enough to differ from them on that point. I would, however, suggest that rules should be made under the rule-making power of the High Court, clearly including (a) that though under Order XXI, rule 11, read with sections 37 and 38, an application for execution might be made to the Court which passed the decree notwithstanding that it had ceased to have jurisdiction to execute it owing to the transfer of territorial jurisdiction, the Court which passed the decree might and should treat it as also as application for transfer of the decree for execution to the new Court and pass orders accordingly and that it should not order the sale of the property which has passed out of its territorial jurisdiction, if it could not then entertain a suit brought for the same reliefs; (b) that where applications are made to both Courts, an order analogous to the order passed under section 10 in respect of suits between the same parties in two different Courts having concurrent jurisdiction should be passed; (c) that Order XXI, rule 16, which refers to the Court which passed the decree should be modified by adding an explanation that unless the Court which passed the decree has ceased to exist, it is that Court to which an application should be made under Order XXI, rule 16, though it ceased to have jurisdiction to execute it by reason of a suit for the same relief having since passed out of its jurisdiction. The Court which passed the decree should, in such a case, pass orders not for execution in favour of the assignee decree-holder or the heir of the decree-holder but recognizing the assignee decree-holder's or the heir's rights to execute it should then transfer the execution to the new Court. If both Courts, are given concurrent jurisdiction, the result would be that one alleged assignee decree-holder might make his application to the Court which passed the decree and another alleged assignee decree-holder or the original decree-holder himself might make his application to the new Court (which is included in the definition of the Court which passed the decree) and there might be conflicting decisions as to who is the real assignee decree-holder or who is really entitled to execute the decree. It is because Order XXI, rule 16, raises such difficulties and because very complicated questions might arise, under some of the other orders and sections (such as section 47) if concurrent jurisdiction is recognised and if the expression “the Court which passed the decree” may mean two Courts at the same time, that I have felt so much difficulty in agreeing with my learned colleagues in the answer to the question referred to us and it was the consideration that in a matter of procedure an unanimous decision of a question referred to the Full Bench is desirable that has finally settled the matter in my mind.

K.R