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HIGH COURT OF CALCUTTA
GUHA RAY, SEN GUPTA
GANGULI ENGINEERING LTD. - Appellant
Versus
SUSHILA BALA DASI - Respondent
A. F. O. O. 58 Of 1954
Decided On : AUGUST 24, 1955
MONEY EXECUTION CASE - ABATEMENT - AWARD OF DEBT SETTLEMENT BOARD - JURISDICTION - CIVIL COURT - INTERPRETATION - LEGAL PROCEEDINGS ORDER, 1947 - BENGAL AGRICULTURAL DEBTORS ACT, 1935 - CODE OF CIVIL PROCEDURE, 1908 - SECTION 47 - SECTION 23 RULE 1 - SECTION 21 RULE 22 - SECTION 34 - SECTION 18(3) - SECTION 19(1)(A) - SECTION 3 - SECTION 2(6)(A) - ORDER 23 RULE 1 - ORDER 21 RULE 22 - PARAGRAPH 4 - PARAGRAPH 3 - PARAGRAPH 2(2) - PARAGRAPH 4(3) - ADAPTATION OF EXISTING LAWS ORDER, 1947 - PARAGRAPH 4(1) - PARAGRAPH 4(2) - ADAPTATION OF BENGAL AND PUNJAB ACTS ORDER, 1948 - PARAGRAPH 3(2) - INDIAN INDEPENDENCE ACT, 1947 - SECTION 9(1) - INTERPRETATION ACT, 1889 - BENGAL, AGRA AND ASSAM CIVIL COURTS ACT, 1887 - AWARD OF DEBT SETTLEMENT BOARD IN PAKISTAN - ENFORCEABILITY IN INDIA - JURISDICTION OF INDIAN COURTS - INTERPRETATION OF LEGAL PROCEEDINGS ORDER, 1947 - DEFINITION OF CIVIL COURT - APPLICABILITY OF BENGAL AGRICULTURAL DEBTORS ACT, 1935 - EFFECT OF PARTITION ON PROCEEDINGS BEFORE DEBT SETTLEMENT BOARD - VALIDITY OF ORDER OF ABATEMENT - WITHDRAWAL OF APPLICATION FOR SETTING ASIDE ABATEMENT - CONTINUATION OF EXECUTION CASE.
Fact of the Case:
The appellant obtained a money decree in 1941 and started execution proceedings in 1944. The execution was stayed under the Bengal Agricultural Debtors Act due to an application by the debtor before the Debt Settlement Board in Jhenidah, Pakistan. After the partition of India in 1947, the Special Officer of the Debt Conciliation Board at Jhenidah made an award under Section 19(1)(a) of the Bengal Agricultural Debtors Act, determining the debt and making it payable in installments. The appellant filed an application to set aside the order of abatement of the execution case in 1952 but later withdrew the application with permission to file a fresh execution petition. The appellant filed a fresh execution case in 1953, which was objected to by the judgment-debtors under Section 47 of the Code of Civil Procedure, arguing that the execution case could not proceed due to the award of the Jhenidah Debt Settlement Board. The Subordinate Judge allowed the objection and dismissed the execution case as not maintainable.
Finding of the Court:
The court held that the award of the Debt Settlement Board in Pakistan could not be enforced in India and that the order of abatement of the execution case passed in 1950 was without jurisdiction. The court also held that the order passed in 1953 permitting the withdrawal of the application to set aside the abatement did not validate the order of abatement. The court further held that the second execution case could be treated as a continuation of the first execution case, which was still pending.
Issues: 1. Whether the award of the Debt Settlement Board in Pakistan could be enforced in India? 2. Whether the order of abatement of the execution case passed in 1950 was valid? 3. Whether the order passed in 1953 permitting the withdrawal of the application to set aside the abatement validated the order of abatement? 4. Whether the second execution case could proceed as a continuation of the first execution case?
Ratio Decidendi: 1. The court held that the award of the Debt Settlement Board in Pakistan could not be enforced in India because: a) Under the principle of international law, a decision by a foreign court or tribunal is not enforceable in another country unless embodied in a decree of that country's court. b) The Bengal Agricultural Debtors Act, 1935, as adapted after the partition of India, only applies to the territory of West Bengal and not to Pakistan. c) The Debt Settlement Board in Jhenidah was not a civil court within the meaning of the Legal Proceedings Order, 1947, and therefore its award could not be given effect to in India. 2. The court held that the order of abatement of the execution case passed in 1950 was without jurisdiction because the executing court had lost sight of the fact that the intimation of the award had been received from a Board in Pakistan and that an award of a Pakistan court was no longer binding after the Partition. 3. The court held that the order passed in 1953 permitting the withdrawal of the application to set aside the abatement did not validate the order of abatement because: a) The order of abatement was originally without jurisdiction. b) There was no need to ask for leave to file a fresh execution case if a fresh execution case was maintainable under the law. 4. The court held that the second execution case could proceed as a continuation of the first execution case because: a) The first execution case was still pending as the order of abatement was without jurisdiction. b) An application for execution of a decree may be treated as one in continuation or for revival of a previous application for execution, similar in scope and character.
Final Decision: The appeal was allowed, the order allowing the objection under Section 47 was set aside, and the objection under Section 47 was dismissed. The second execution case was allowed to proceed as a continuation of the first execution case.
( 1 ) THIS is an appeal from ex , parte order passed by Sri G. S. Chatterjee, Subordinate Judge, 6th Court, 24-Parganas allowing an objection under Section 47 of the- Code of Civil Procedure and dismissing Money. Execution Case No. 1 of 1953 as not maintainable. The facts are briefly as follows. The appellant Ganguly Engineering Ltd. obtained a money decree for Rs. 10462 7/- including costs in Money Suit No. 1 of 1940 of the 2nd Additional Court of Subordinate Judge, Alipore. The decree was obtained on 31-5-1941 and after obtaining the decree the appellant started Money Execution Case No. 10 of 1941. This execution case was stayed under Section 34, Bengal Agricultural Debtors Act on 28-8-1944, the debtor having made an application before the Debt Settlement Board at Jhenidah in the district of Jessore for settlement of the debt comprising the decretal amount. The money execution ease was still stayed under Section 34 of the Bengal Agricultural Debtors Act on the date of the partition, namely, 15-8-1947. After the partition the Special Officer, Debt Conciliation Board at Jhenidah who had taken the charge of the cases before the Debt Settlement Board made an award under Section 19 (1) (a) Bengal Agricultural Debtors Act by which the debt was determined at Rs. 10562/7/- and this amount was made payable in 11 annual instalments, the first ten instalments being of Rs. 1000/- each and the last instalment being Rs. 562/7/-, the first instalment being payable in Chaitra, 1355 B. S. This settlement was made on 3-12-1949 and the settlement was communicated by an intimation to the Subordinate Judge's Court at Alipor'e where the Money Execution Case No. 10 of 1941 was pending, and on 6-1-1950 the Subordinate Judge then in charge of the court recorded an order referring to the intimation received from the Debt Settlement Board, Jhenidah, that the debt had been settled and noting that the execution case had abated. Thereafter, on 4-4-1952 the present appellant filed an application for setting aside the order of abatement, but' ultimately the appellant did not press the application to a hearing, but he filed a petition for withdrawing the same with leave to file a fresh execution petition. The learned Subordinate Judge on 5-1-1953 passed an order permitting the decree-holder to withdraw the petition filed on 4-4-1952 at his own risk, after pointing out that O. 23 R. 1 of the Code of Civil Procedure had no application to the present case. On the same date, that is, 5-1-1953 the present execution case was started. As soon as notices under Order 21, Rule 22 C. P. C. had been served on the judgment-debtors, Sm. Sushila Bala Dasi and another, they appeared and filed an objection under Section 47 of the Code of Civil Procedure objecting that the execution case could not proceed in view of the fact that the Money Execution case had abated and the decree had become merged in the award of the Jhenidah Debt Settlement Board. The objection was fixed for hearing on 25-7-1953. On that date the decree-holder appellant filed an application for time, but the application for time was rejected and thereafter the objection under Section 47 filed by the judgment-debtors was decided ex parte. The learned Subordinate Judge decided that in view of the award of the Debt Settlement Board and in view of the fact that the previous execution case had abated no fresh execution case was maintainable. The Money Execution Case No. 1 of 1953 was thereupon , dismissed as not maintainable. Against this ex parte order the decree-holder has filed the present appeal.
( 2 ) IT is contended on behalf of the decree-holder appellant that after the partition of India and the creation of two dominions, the award of a Board or a Special Officer in Pakistan could no longer be taken notice of by an Indian Court and therefore the order passed on 6-1-1950 that the first execution case had abated was an order made without jurisdiction and therefore Void, and there was nothing ther
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