Madras High Court
Balakrishnan vs Krishna Moorthy And Ors. on 16 June, 1981
Equivalent citations: AIR1982MAD436, (1982)2MLJ159
JUDGMENT
1. This is an appeal under, Order 43, Rule 1, C. P. C. by the respondent Balakrishna against the judgment and decree dated 24th Aug., 1977 in A. S. 146 of 1977, on the file of the Court of the learned Principal District Judge, Pondicherry, allowing the appeal and setting aside the judgment and decree of the trial Court, and remanding the matter to the trial Court for fresh disposal in accordance with the law. The court-fee paid in the appeal was directed to be refunded. The appeal was against the order and decree dated 5-3-1976, in E. A. 65 of 1972 in E. P. 25 of 1972, passed by the learned Subordinate Judge, Karaikal.
2. E. P. 25 of 1972 in A. S. 38 of 1967, E. A. 26 of 1972 in E. P. 25 of 1972 and E. A. 65 of 1972 in E. P. 25 of 1972, were disposed of altogether by the learned Subordinate Judge, Karaikkal on the 5th Mar., 1976. We are concerned only with respect to E. A. 65 of 1972 in E. P. 25 of 1972.
3. E. P. 25 of 1972 is the petition filed by the legal representative of the deceased decree-holder, one Govindasami Pillai, for the delivery of possession of immovable properties (lands) purchased by the petitioners in court auction on 15-3-1972.
4. The proceedings out of which the appeal A. S. 146 of 1977 arises were laid under the following circumstances. One Balakrishnan, the appellant before this Court, and who was the respondent in the said appeal A. S. 146 of 1977, executed a mortgage deed in favour of one Govindasami Pillai. The latter took steps for recovery of money by way of court auction sale. During the proceeding, he passed away and the proceeding was continued by his legal representative namely, the respondents before this Court and the appellant in A. S. 146 of 1977. In the first auction, the highest bidder was one Deivasagayam for Rs. 15,000. In the 'Surenchere' auction held on 18-8-1968, the sale was in favour of Anjalai. Since she failed to pay the, sale amount, a fresh sale on 'felle enchere' was ordered in which the fourth appellant before the appellate Court became the auction purchaser for an amount of Rs. 8,000 on 15-3-1972. The sale has been confirmed and sale certificate issued in favour of the auction purchaser. It appears also that possession was given by the Amin and at the stage of recording the delivery of possession by the Amin two petitions were filed, one by Balakrishnan and the other by Anjalai Balakrishnan asked for setting aside the sale in favour of the fourth appellant and to stay the proceedings. Anjalai stated that she was still in possession of the property and prayed for an injunction against the appellants restraining them from interfering with her peaceful possession. Both the petitioners attacked the sale in favour of the fourth appellant on the ground that it was ordered under the French Procedure which was not then in force and also on the ground that even under that procedure, the sale was irregular as some of the essential formalities of French Law were not followed. The trial Court finding that the appellants raised new questions of some importance treated these applications as suits under Section 47, C. P. C. but failed to recover the corresponding court fees. It held that since the sale in favour of the fourth appellant took place in the year 1972, after the coming into force of the Indian Civil P. C., the sale should have been conducted in accordance with the principles of Indian Civil P. C., that many of the essential formalities embodied in the latter Code were not followed and accordingly decided that the sale was not valid. In the result, it dismissed the application of Anjalai and allowed the application of Balakrishnan, the appellant herein by order dated 5-3-19,76. It is against that order that the appeal A. S. No. 146 of 1977 was preferred before the lower appellate Court only by the legal representatives of the original creditor,
5. The lower appellate Court took the view that the matter dealt with by the trial Court, the execution Court, was really in the nature of a suit and therefore the appeal which was originally numbered as a C. M. A. was renumbered in the lower appellate Court as an appeal upon payment of the corresponding court -fees by the appellants. Though an adjournment was sought for on the ground that on account of Ramzan, the learned counsel for the respondent was observing fast and therefore was not able to come before the lower appellate Court to argue the appeal, the lower appellate Court found that the move for the adjournment appears to be an attempt to protract the proceedings and is not for any bona fide reason. Therefore, the lower appellate Court dismissed the application for adjournment and proceeded with the matter under 0. XVII, R. 3, C. P. C.
6. The lower appellate Court considered the point whether the sale proceedings started under the French Law should be continued under the same law after the coming into force of the Indian Civil P. C. on 5-9-1968. The lower appellate Court found that the trial Court has disposed of the matter only in finding that the sale on 'FELLE ENCHERE' in favour of the 4th appellant held on 15-3-1972 should have been conducted under the Indian Civil P. C. and was not in conformity with the provisions therein and that the trial Court did not consider any of the objections raised by Balakrishnan, the appellant herein, stating that even under the French Civil P. C., the proceeding was not regular and as such for considering these aspects of the case, the lower appellate Court found it proper to remand the matter back to the trial Court. Hence the lower appellate Court directed the trial Court that before starting again the matter it shall direct the respondent to pay the necessary court-fees and the proceedings shall be treated as a suit. In the result, the appeal preferred by the respondents herein was allowed by the lower appellate Court. The order of the trial Court was set aside and the matter was remanded to the trial Court for fresh disposal in accordance with the law. The court-fees paid in the appeal was directed to be refunded by the lower appellate Court.
7. Aggrieved by the above order of remand made by the lower appellate Court, the respondent Balakrishnan and the appellants before the lower appellate Court have come forward with this appeal inter alias contending that the lower appellate Court erred in entertaining an appeal against the order passed under Section 47, C. P. C. and converting the original C. M. A. into one as a regular appeal on payment of ad valorem. court-fees when the provisions of the Civil P. C., deeming an order passed under S. 47 as a decree had been repealed retrospectively. In other words, it is vehemently contended an behalf of the appellant that the lower Court ought to have held that the order made in an application under Section 47, C. P. C., not being a decree, neither a civil miscellaneous appeal nor a regular appeal would lie. Therefore, it is contended on behalf of the appellant that the order of remand, passed in A. S., No. 146 of 1977 is without jurisdiction. In this regard, the provisions of Sections 4 and 5 of the Pondicherry (Extension of Laws) Act, 1968 (Act 26 of 1968) are also referred to. Section 4 of the Act reads as follows-
"1. Any law in force in Pondicherry or any area thereof corresponding to any Act referred to in sub-section (1) of Section 3 or any part thereof (except m so far as such law continues, to be applicable to Renoncants) shall stand repealed as from the coming into force of such Act in Pondicherry.
2. Nothing in sub-section (1) shall affect-(1). the previous operation of any law so repealed or, anything duly done or suffered there under; or. (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed or
(c) any penalty, forfeiture, or Punishment incurred in respect of any offence committed against any law as replaced ;or
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, for feiture, or punishment may be imposed as if this Act had not been passed;
Provided that, anything done or any action taken (including any appointment or delegation made, notification, instruction or direction issued, form, bye-law or scheme framed, certificate obtained, permit licence granted, or registration effected) under any such law, shall be deemed to have been done or taken under the corresponding provision of the Act extended to Pondicherry by this, Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act."
Section 5 of the Act reads as follows-
"All rules notifications orders regulations and bye -laws made or issued by the central government under the provisions at any Act generally for The territories to which such Act extends shall, as from the commencement of the provisions of such Act in Pondiclierry, extended to, and come into form in Pondicherry."
It is also provided in Section 3 of the. said Act, that the Acts specified in Part I of the Schedule as they are generally in force in the territories to which they extend and the Acts, specified in Part II of the Schedule they were in force on the 1st day of Aug., 1966, in the State or Union territory mentioned there against shall extend to Pondicherry, subject to The modifications, if any, specified in the schedule. Not withstanding anything contained in sub-section (1) or in the relevant provision, if any, of each such Act for the commencement thereof, the provisions of each such Act shall come in to force in Pondicherry on such date as the Administrator may by notification in the official Gazette appoint. It is relevant in this connection to note that the Civil P. C, is also mentioned as a last item in the schedule to the Act under Section 3(1) of the Act it is, stated as, against the said Act under schedule that after Section 45, Section 45-A has to be inserted. It reads as follows-
"Execution of decrees etc, passed or made before the commencement of the Code in Pondicherry - Any judgment, decree or order passed or made before the commencement of this Code by any Civil Court in the Union Territory of Pondicherry shall, for the purpose of execution, be deemed to have been passed or made under this Code."
The point for consideration in this appeal is, wherther the lower appellate Court is correct in having remanded the matter to the trial Court for fresh disposal in accordance with the law.
8. It is common ground that 'Surenchere' took place on 6-3-1968 and the subsequent sale 'Felle Enchere' in favour of the 4th appellant took place on 15-3-1972. According to the respondents herein the sale proceedings started under the French Civil P. C should be continued as per the same procedure. As per the appellant's contention, which was upheld by the trial Court, it was the Indian Civil P. C., which applies after 5-9-1968 even for proceedings which are pending at that time. Indian Civil P. C. came into force with effect from 5-9-1968. It is provided under sub-section (1) of S. 4 of the Pondicherry (Extension of Laws) Act, 1968 (Act 26 of 1968) that the French Civil P. C. has been repealed. But the sub-sec. (2) to S. 4, as incorporated supra, has made Some saving provisions,
9. A careful perusal of the contents of Section 4 of the Pondicherry (Extension of Laws) Act, 1969 (Act 26 of 1968) clearly shows that a legal proceeding can be continued for the enforcement of any right which has accrued to any party at the time of the change of law. An introduction of the procedural law of the land, namely India, had been introduced into the memory of Pondicherry.
10. The decision in Ramaswarni in re, (1965) 2 Mad LJ 332 is retied upon for the following Proposition -
"It is a well known principle of International Law that a foreign settlement, obtained in an inhabited country, by conquest or by cession from another power stands in a different position from a settlement made by colonising, that is, peopling an uninhabitated country. In the latter case the subjects of the country from which they emigrate carry with them the laws of the country of their origin, there being, of course, no Lexi Loci. In the former the law of the country to which they go continues until the Crown or the Legislature change it.
This principle has been carried out successively in Sec. 5, of the French Establishments (Administration) Order 1954, S. 4 of the Pondicherry (Administntion) Act, 1962, and S. 4(2)(d) of the Pondicherry (Laws) Regulation, 1963. By the force of these repealing and saving provisions the pre-existing French Law has become as much 'the established law' in force in the territory of India within the meaning of Art. 13(3)(a) of the Constitution of India, as any other law for the Indian Union, such as, the Criminal P. C. or the Penal Code. That the law thus given validity was originally a law in force in what was foreign territory would not affect the question of its being an established law in the territory newly added to the Indian Union.
The pre-existing French Law preserved for enforcement in the newly addled French territories, if; not an ad hoc legi4ation designed to meet a particular contingency or -a particular set of persons, but was a law firmly and well established in the territory, having general acceptance under the principles of International law. The citizens of that territory have, therefore, a vested right to be governed by the French Law, i.e., the French Criminal Procedure and French Penal Code, until such times as competent authority introduces new patterns -of legislation. It is also clear that the modified provision of the 'code De Procedure Penale which came into force in France and other French territories after the date, when the former French possessions in India came under the de facto jurisdiction of the Government of India in 1954, and before the de jure transfer of jurisdiction in 1962 would have no application to a case where after the de facto transfer in 1954 and before the de jur transfer in 1962, after the investigation by the police in a criminal case, and other process a committal had been made for trial before the 'Tribunal Criminal'.
It is not the law that after the extension of the Constitution of India to Pondicherry, only the Indian Criminal Procedure and Penal Code, should be applied for the trial of the accused in such case and not the French Laws".
11. 'The decision in Susama Bala v. Bibhuti Bhushan, (FB), is relied upon for the proposition that the grosses copy can be executed under the Indian Law without filing a suit, that the right obtained under the grosses copy is a substantive right and not a procedural one and was preserved under the Indian Law after merger of Chandernagore and that this right is not inconsistent with the provisions of the Civil P. C.
12. The decision in Adaikappu Chettiar v. Ayesha Natchiar, (1975) 2 Mad LJ 298: (AIR 1976 Mad 32) is relied upon for the proposition that a holder of a mortgage, although it has been granted under the. French Law, and procedure, is certainly entitled under the Civil P. C. to file a suit in accordance with the procedure thereof. This decision if, also relied upon for the proposition laid down in it, namely, that when a person, who enjoyed a privilege, filed a suit in the ordinary Civil Court on foot of a notarial mortgage deed, it is the plain duty of the Court to entertain it under Sec. 9 of the Indian Civil P. C. Even though the plaintiff might have had The alternative relief of enforcing the mortgage as if it were a decree without restoring to an action in a Civil Court, undoubtedly the plaintiff shared with the other Indian citizens the right to file a suit on the mortgage deed in a Civil Court, obtain a decree and then proceed to execute it.
13. The above said decisions are to the effect that it is the duty of the Court to follow the old Procedure wherever it is necessary under law and with such adaptations as may be required under the change of machinery,
14. In the present appeal before this Court, the question which arises is whether any right or privilege arose for any of the parties in the Court-auction proceedings started before 5-9-1968 justifying the continuance of the old procedure. It is relevant in this connection to note that Anjalai had become sole auction-purchaser for an amount of Rs. 17,000 prior to 5-9-1968. This created for her a valuable right and also the liability to pay the difference between the price offered by her and the price of the final sale, in case of resale for the non-payment within time. This has created corresponding rights for the respondents herein in their capacity as creditors and also in favour of other creditors of the appellant herein and ultimately for the appellant himself. If the changed procedure is affected at that stage many of the rights and privileges acquired by diverse parties would be affected. It would be unsafe and unwise to make a radical change of procedure at that stage. Therefore, the legal position is quite clear that the auction-sale proceedings started before 5-9-1968 and which had reached the stage of 'Felled Enchere' should not be discontinued, and that new Civil P. C. would not apply in the instant case.
Therefore, the lower appellate Court is correct in answering that point accordingly. The owner appellate Court is also correct in having remanded the matter inasmuch as it has found that the trial Court has disposed of the matter only in finding that the sale as 'Felled Enchere' in favour of the 4th respondent held on 15-3-1972, should have been conducted in accordance with the provisions of the Indian Civil P. C. The trial Court had not considered any of the objections raised by the appellant Balakrishnan stating that even under the French Civil P. C., the proceeding was not regular. For considering these aspects of the case, the lower appellate Court is correct in having found that it is proper to remand the matter back to the trial Court and also giving directions to the lower Court that before starting again the matter, it shall direct the respondent (the appellant herein) to pay the necessary court-fees and the proceedings shall be treated as a suit.
Therefore, the order of remand made by the lower appellate Court is correct. The judgment and decree of the lower. appellate Court are confirmed. There is no merit in the appeal. The appeal is, dismissed. but under the circumstances, there will be no order as to costs.
15. Appeal dismissed.