BHANUMATI DASI Vs. GOUR MOHAN SETT

JUDGEMENT

(1.) This appeal arises from an order of Shri K.M. Roy, Subordinate Judge, Chandernagar, dismissing an objection under Section 47 of the Code of Civil Procedure against the execution of "grosse" copies of four Notarial Mortgage Bonds executed in French Chandernagar during the French regime.

(2.) The facts are briefly as follows: One Upendra Nath Sett of Chandernagar executed four Notarial Mortgage deeds in favour of Gour Mohan Sett, the Respondent, for the sums of Rs. 10,000, 3,000, 4,000 and 3,000, respectively, on May 6, 1940, September 18, 1940, March 1, 1941 and July 18, 1941, the interest being stipulated at 8 per cent, per annum. The deeds were Notarial deeds and the Notaire gave grosse copies of these deeds to the mortgagee. Grosse copies are copies of the deeds executory in character by virtue of the formula endorsed thereon by the Notaire. The debts covered by the deeds were not paid within the stipulated time. The mortgagee Gour Mohan Sett then had copies of the deeds notified on the present Appellant Bhanumati, who is the daughter and sole heir of the mortgagor Upendranath Sett. The mortgagee also got a "commandment" served on Bhanumati and as the money was not paid he had the mortgaged property attached except one lot and a cahier des charges or a booklet containing the history of the debts, description of attached properties and terms and conditions of the sale was prepared and presented before the French Court in accordance with the provisions of French Code of Civil Procedure. The proceeding was termed as Sale Suit No. 5 of 1944. The "cahier des charges" was duly notified to the present Appellant, the mortgage-debtor, and the May 6, 1944, was fixed for holding the sale of the attached properties. In the meantime one Sachindranath Sett, a kinsman of the mortgagor Upendranath Sett, claimed to be the heir of Upendranath Sett in preference to the daughter Bhanumati and he filed an application in the sale suit to stay the sale until the final disposal of his suit claiming the declaration that he was the preferential heir. The sale was accordingly stayed by an order of the French Court until the final disposal of the suit brought by Sachindranath Sett. Sachindranath Sett's suit was finally disposed of by the judgment of the appellate court of Pondichary on December 17, 1946, declaring Bhanumati Dassi as the sole legal heir of Upendranath. A copy of this judgment was served on the mortgagee, that is the Respondent Gour Mohan Sett, on November 10, 1947. Thereafter the mortgagee got a notice served on Bhanumati on August 27, 1949, asking her to appear before the court on September 10, 1949, for fixing the date of sale. The parties appeared before the French Court and certain adjournments were taken by the lawyer of Bhanumati for obtaining communication of documents, and the sale date had not been finally fixed when on May 2, 1950, Chandernagar was de facto transferred to India and the French Courts were replaced by Indian Civil Courts constituted under the Bengal, Agra and Assam Civil Courts Act by an order issued under Section 4 of the Foreign Jurisdiction Act, 1947, styled as the Chandernagar (Application of Laws) Order, 1950, published in the Gazette of India on May 1, 1950. By Section 7 of that Order, such laws in force in Chandernagar immediately before the commencement of this Order 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 this Order. In the schedule was included the Code of Civil Procedure. Accordingly with effect from May 2, 1950, the French Code of Civil Procedure ceased to have effect and the Code of Civil Procedure of India took its place. Until, however, the passing of the Chandernagar (Administration) Regulation, 1952, there was a confusion as to the laws applicable to pending proceedings and practically nothing was done until June 9, 1952, when the Chandernagar (Administration) Regulation, 1952, came into force. By Section 10 of that Regulation it was provided that all proceedings, civil or criminal, which immediately before May 2, 1950, were pending in any court in Chandernagar would, by virtue of this regulation, stand transferred or be deemed to have been transferred to the corresponding court constituted under the Bengal, Agra and Assam Civil Courts Act, 1887 or the Code of Criminal Procedure, 1898, and any decree, order or sentence made or passed by any court of competent jurisdiction immediately before the aforesaid date would have effect as if it were a decree, order or sentence made or passed by the corresponding court constituted under the Bengal, Agra and Assam Civil Courts Act, 1887, or the Code of Criminal Procedure, 1898, as the case might be. Accordingly after June 9, 1952, the proceedings were properly resumed before the Subordinate Judge, Chandernagar. On January 21, 1953, the mortgagee Gour Mohan Sett filed a petition praying for expeditious disposal of the sale suit. On January 22, 1953, the Appellant Bhanumati filed an application under Section 47 of the Code of Civil Procedure praying for disposal of the sale suit on the grounds that the suit was no longer maintainable. She contended that Suit No. 5 of 1944 was not pending on May 2, 1950 and could not therefore be continued in the present court by virtue of the provisions of Section 10 of Regulation 1 of 1952, namely, the Chandernagar (Administration) Regulation, 1952; that the grosse copies of the Notarial mortgage deeds were not decrees or orders of court of competent jurisdiction within the meaning of Clause (b) of Section 10 of the aforesaid Regulation and could not therefore be executed under the provisions of the Code of Civil Procedure, and that further the suit was not maintainable as the French Code of Civil Procedure under which the proceeding was started had been repealed. The mortgagee-Respondent opposed the application under Section 47 of the Code of Civil Procedure, contending that the Suit No. 5 of 1944 had never been dismissed by an express order or by implication, that the grosse copies of the Notarial mortgage bonds had the force of decrees and were always treated as such during the French regime, and that under Section 10 of Regulation 1 of 1952 the proceeding for execution could be continued. The learned Subordinate Judge decided the objection in favour of the mortgagee-Respondent. He held that suit No. 5 of 1944 was pending on May 2, 1950; he held that grosse copies of Notarial mortgage bonds were not strictly speaking decrees or orders made by a competent court but still the grosse copies of Notarial mortgage deeds could be executed, and the pending proceedings could be validly treated as execution proceedings and that the proceedings should therefore be continued from the stage at which it had been left by the French Court.

(3.) The first point urged by Mr. Mukherjee for the debtor-Appellant is that Suit No. 5 of 1944 before the French Court cannot be deemed to have been pending on May 2, 1950. In this connection Mr. Mukherjee has pointed out that the date for sale was fixed on May 6, 1944 but by orders passed on April 1, 1944 and May 6, 1944, the suit was stayed indefinitely and it was not resumed until August 27, 1949, when notice of the suit was served again on the Appellant to appear on September 10, 1949, for fixation of the date of sale, and thus there was a gap of over three years during which nothing was done in the suit. He has referred us to Article 397 of the French Code of Civil Procedure of which a translation is as follows: