DARBARA SINGH AND CO Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicant-plaintiff instituted a Civil Suit to recover a sum of Rs. 6 62 273 ps. from the State Government. That suit was instituted in the City Civil Court at Ahmedabad and was numbered Civil Suit No. 333 of 1964. In that suit a preliminary issue was raised as to whether the Court had jurisdiction to hear the suit. The learned Judge in the City Civil Court by his judgment and order dated 23/03/1967 held that the City Civil Court had no jurisdiction ab initio to entertain and try the suit and accordingly directed that the plaint be returned to the plaintiff for presentation to proper Court. After this order as passed the plaintiff presented the suit in the Court of the Civil Judge (Senior Division Junagadh on 6/04/1967. On re-presentation of the plaint in the Junagadh Court it came to be numbered as Special Suit No. 14 of 1967. That suit was partly decreed by the trial Court. In the cross-suit filed by the State of Gujarat against the said plaintiff also part of the claim was decreed. The parties filed appeals against the said judgment and decree of the learned trial Judge in this Court. The plaintiffs appeal was numbered 548 of 1971. The High Court by its judgment and order dated 27/04/1978 partly allowed the plaintiffs appeal and directed the State to pay a sum of Rs. 2 25 492 ps. together with interest at the rate of six per cent per annum on the entire decretal amount (decreed by the trial Court as well as by the High Court) from the date of the suit until realisation with proportionate costs on the claim allowed. The applicant-plaintiff thereafter filed Special Execu- tion Application No. 38 of 1978 in the trial Court to recover the decretal dues from the State Government. In the said execution proceedings interest was claimed from the date of the original ins- titution of the suit in the City Civil Court at Ahmedabad and not from the date of its re-presentation in the Junagadh Court The short question which therefore arose before the executing Court was whether the applicant-plaintiff was entitled to interest on the amount decreed from the date on which the plaint was lodged in the City Civil Court at Ahmedabad or from the date of its re-presentation in the Junagadh Court. The learned Second Joint Civil Judge (Senior Division) Ahmedabad (sic Junagadh) upheld the objection filed by the judgment-debtor to the effect that interest could only be calcul- ated under the decree from the date of the re-presentation of the plaint in the Junagadh Court and not from the date of its original presentation in the City Civil Court at Ahmedabad. Aggrieved by the said order the original plaintiff-decree holder has filed this Revision Application.

(2.) Mr. Hathi argued that the executing Court was bound to execute the decree as it was and it was not open to it to read words in the decree which were totally absent. According to Mr. Hathi the High Court decree permitted interest on the decretal amount at six per cent per annum from the dale of suit until realisation. According to him the words from the date of suit had to be understood as the date on which the plaint was initially presented in the City Civil Court Ahmedabad and not the date of its re-presentation in the Junagadh Court. He submitted that the learned Judge had read the words from the date of suit in Junagadh which did not exist in the High Courts decree and had thereby gone behind the decree. He therefore contended that the order passed by the learned Judge in execution was clearly erroneous and had to be set aside to give full effect to the High Courts decree. In support of this contention he relied on the decision in Ramaswami v. Veerayan Raja A.I.R. 1941 Madras 711.

(3.) In the above case the Division Bench of the Madras High Court held that presentation of the plaint to a Court which has no jurisdiction to try the suit cannot be said to be proper institution of the suit even though the plaint is accepted as being in order and registered. It further held that when a plaint is presented to a competent Court having jurisdiction but later on because of a finding of fact recorded on the question of value of the subject matter the Court holds that it lacks pecuniary jurisdiction and returns the plaint its re-presentation would not mean that it was not instituted in the Court in which it was first presented. In that view that it took it distinguished the decision of the Bombay High Court in Hirachand Succaram v. G.I.P. Railway Co. A.I.R. 1928 Bombay 421.