TULSI CHARAN SUROL Vs. KANGALI CHARAN DEY

JUDGEMENT

(1.) This appeal is by the judgment-debtor against an appellate order upholding the order of the learned Subordinate Judge, 1st Court, Hooghly, dismissing an objection under section 47 of the Code of Civil Procedure to the execution of grosses copy of a notarial mortgage deed as a mortgage decree in the Court of the Subordinate Judge. The case arises from Chandernagore which until its defacto transfer to India on the 2nd May, 1950, was governed by the French Laws. A decret, corresponding to an Ordinate or Regulation in India, was promulgated by the Governor of French India on Nov. 23, 1887, regarding the organisation of the profession of notaries. A notary or notaire was defined as a public officer appointed to take charge of deeds and contracts which had to be clothed with the character of the authenticity; the party was to deposit the original deed before the notary and could obtain an authenticated copy known as the grosses copy. In respect of a mortgage bond deposited with a notary the grosses copy delivered to the party was made out in an executory form, in the same terms as a judgment of Court of Justice. Such a grosses copy of a mortgage bond could be executed as a decree of the Court, if the mortgagor did not pay up the mortgage dues within the stipulated time mentioned in the deed of mortgage, this being provided by article 545 of the French Civil Procedure Code.

(2.) Under the Chandernagore (Application of Laws) Order, 1950, such laws in force in Chandernagore immediately before the commencement of the Order (i.e. immediately before the 2nd May. 1950) as corresponded to the enactments mentioned in the schedule to the Order ceased to have effect save as respects things done or omitted to be done before the commencement of the Order. In the schedule to the Order were included the Bengal, Agra and Assam Civil Courts Act, 1887, the Code of Civil Procedure, 1908, the Indian Evidence Act, 1872 and certain other Acts like the Indian Penal Code, the Code of Criminal Procedure, the General Clauses Act etc. Accordingly, with effect from 2nd May, 1950, Civil Courts under the Bengal, Agra and Assam Civil Courts Act were set up and they were governed by the Code of Civil Procedure and the Indian Evidence Act; and the French Code of Civil Procedure and any other corresponding law ceased to be applicable.

(3.) There was de jure transfer of Chan dernagore to India with effect from 9th June, 1952, by a treaty between the French and Indian Governments, and the Chandernagore (Administration) Regulation, 1952, which was published in the Gazette of India on 30th June, brought about certain changes in the law with section 11 of the Regulation, the Central Government was empowered to extend and did extend certain further Indian Acts to Chandernagore and repealed the corresponding law in force in Chandernagore. Law in force in Chandernagore was made uniform with that in the rest of West Bengal by the Chandernagore (Merger) Act, 1954 and the Chandernagore (Assimilation of Laws) Act, 1955, the first one being a Central Act and the second one being a West Bengal Act.