Meherunnissa Begum and others vs Venkat Murli Manohar Rao

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.

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 passed 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.

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 Vs. Dayabhai Amulakh and Others, -- ''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 Dassundhi Vs. Mt. Umraji and Another, and -- W.M. Grant and others Vs. Eklal Jha and others

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 aid 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 aid 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 Vs. Venkatarama Naick and Another, and Manmohan Das and Others Vs. Rashiduddin and Others

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 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 arc, 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 - The Stae Vs. Rashid and Others, . According to the CPC 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 S. 8, Hyderabad Civil P. C., 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 Art. 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 - Shivji Poonja Kothari Vs. Ramjimal Babulal, . In the result we do not find any force in this argument and it fails.

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 Art. 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 stop in aid of execution of the decree or order.

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 aid 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 aid of execution and in accordance with law. We are supported in this view by the cases of Manmohan Das and Others Vs. Rashiduddin and Others

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 aid 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.

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, docs not apply to the facts of the case and does not help the contention of the learned Advocate for the appellants.

12 Mad 26 (C) and 33 All 356 (D), are both cases where by the later Acts there was an alteration 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 ridings 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 Nabibhai Vazirbhai Vs. Dayabhai Amulakh and Others, . We do not agree with this contention for Nabibhai Vazirbhai Vs. Dayabhai Amulakh and Others, was a case where the decree-holder had not filed at an 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.

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.