SHEIK ALI Vs. SHEIK MOHAMED

JUDGEMENT

(1.) THIS Civil Miscellaneous Appeal is directed against an order of the learned District Judge of East Thanjavur at Nagapattinam and turns on whether there is any limitation and, if so, what is it for execution by that Court of a foreign judgment of a superior Court in a reciprocating territory. The District Judge held that Article 183 of the Limitation Act, 1908, was inapplicable but Article 182 was. On the view that the starting point of limitation would be the date of the order of the appellate Court in such territory, he directed execution to proceed. He also repelled a contention that execution was barred under Section 13 of the Code of Civil Procedure but this question is no longer reiterated. For the appellant -judgment -debtor reliance was placed on Uthamarama v. Abdul Kassim and Company, (1963) 2 M.L.J. 412 and it was urged that on the principle of this authority, the execution petition should be held to be barred as the judgment of the foreign Court had been obtained on 4th January, 1954. Srinivasan and Ramakrishnan, JJ., who heard the appeal were of the opinion that Uthamarama v. Abdul Kassim and Company, (1963) 2 M.L.J. 412 required reconsideration by a larger Bench.

(2.) ON 4th January, 1954, the respondent obtained a judgment against the appellant in the Consolidated Civil Suits Nos. 53 of 1945 and 51 of 1950 on the file of the High Court at Penang for $ 24,682 -72 and costs which were taxed at $ 5,453 -80. Pending an appeal of the appellant from that judgment to the Supreme Court of Federation of Malaya, the respondent made an application for a direction to the appellant to furnish on or before 30th June, 1954, security for the payment of taxed costs and a further security in a sum of $1,000 towards costs of the appeal within the same period which was ordered on 31st May, 1954. This order provided that unless the security was furnished within time, the appeal should be stayed. On the respondent's application, again the Supreme Court by an order dated 23rd July, 1954, extended the time upto 31st July, 1954, for compliance. But this time the order stated that if the appellant should make default in giving such security by the date fixed, the appeal be dismissed with costs. The appellant defaulted with the consequence that the appeal stood dismissed on 31st July, 1954. The respondent then applied for and obtained from the Supreme Court on 7th December, 1954, a certificate of non -satisfaction of the judgment. No execution was levied against the appellant until 3rd December, 1959, when the respondent filed a certified copy of the foreign judgment together with the non -satisfaction certificate and an execution petition in the Court of the District Judge of East Thanjavur for attachment and sale of the appellant's properties. On 13th July, 1960, the District Judge ordered attachment from which this appeal has arisen. In the meantime, on 19th February, 1960, the respondent applied to the Supreme Court for a formal order striking out the appeal which was given on 23rd February, 1960. When this appeal in the first instance was before Ramachandra Ayyar, C.J., and Venkataraman, J., the learned Judges adjourned it on 10th January, 1963, to enable the appellant to have the order of 23rd February, 1960, set aside. The appellant's application was disposed of by the Supreme Court on 21st October, 1963, allowing it. While doing so, the Supreme Court set aside the earlier order dated 23rd February, 1960, and made it explicitly clear that the order of that Court dated 23rd July, 1954, was the final order and by its operation the appeal stood automatically dismissed on 31st July, 1954.

(3.) K . Rajah Ayyar who appears for the appellant supports the view taken in Uthamarama v. Abdul Kassim and Company, (1963) 2 M.L.J. 412 that Article 182 applies. He contends that the words ' as if it had been passed by the District Court' in Section 44 -A of the Code of Civil Procedure mean that a foreign decree, for the purpose of execution on filing a certified copy thereof in that Court, shall be deemed to have been passed by it on the date the decree originally bears and if it be the case, limitation should be computed from that date or in any case from 3rd January, 1956, when the Government of India notified declaring the Federation of Malaya to be a reciprocating territory. Learned Counsel argues that though Section 44 -A does not by itself provide for limitation for execution, it is settled that by operation of International Law, the Indian Limitation Act, as part of procedure, will govern and apply to execution locally of foreign judgment. He submits that Article 182 is the proper Article and that if that is not so, Article 181 applied, the starting point for limitation being the date on which the non -satisfaction certificate was obtained by the respondent from the foreign Court whence according to Mr. Rajah Ayyar the right to apply for execution accrued. On the other hand, Mr. V.K. Thiruvenkatachari for the respondent urges that whatever be the effect of the words ' as if it had been passed' in Section 44 -A and assuming that the law of limitation, as part of procedure, applies -to execution proceedings in the executing Courts in India, there is nothing in section, 44 -A or its legislative history or any other provision of India law to warrant the view that the Indian Limitation Act will apply to execution of a foreign judgment even before it had been filed in a District Court in India. He also contends that, in any case the proper Article which is applicable is Article 183 and that if that be not so, on the same logic neither Article 182 will be applicable so that one is left with Article 181. He would however recognise that to be consistent with the principle of reciprocity, it would be open to a judgment -debtor to show under Section 47, Civil Procedure Code, to the executing Court in India that between the date of the non -satisfaction certificate in relation to the foreign judgment and the date of its filing in and execution by that Court, the foreign judgment or decree became barred by limitation in the country of its origin or otherwise stood partly or wholly satisfied or discharged.