SEENI NADAN ALIAS VIRAKUMARU NADAN Vs. MUTHUSAMI PILLAI

JUDGEMENT

(1.) The terms of the reference have, if I may say so, been very properly framed with reference to the terms of Article 182, Clause 5 of the Limitation Act (4 is a misprint) which makes the date of applying in accordance with law to the proper court for execution or to take some step-in-aid of execution of the decree a fresh starting point for the purposes of the Article which deals generally with applications for the execution of decrees. The question really is, whether a litigant who has been authorised to bring his suit in a particular court and has obtained a decree in such court in his favour, which he is strictly bound to execute within the time limited in Article 182, is not entitled to apply as of course to that court as the proper Court for the purpose of saving limitation under the Article, or whether, when he decides to apply for execution possibly at the last moment, he is bound to stop and enquire whether the limits of the territorial jurisdiction of the court which passed the decree have been altered, and if so, whether the immoveable property which is the subject of the suit or the place where the cause of action arose was within the limits of the transferred area, on pain of losing his right to execute under the Article if he omits to make these enquiries or comes to a wrong conclusion when he makes them. This last proposition is so unreasonable and involves such hardships to the decree-holder in a country such as India with a stringent law of limitation that we should hesitate to impute such an intention to the legislature if we can possibly avoid it.

(2.) Under the Code of 1859 it was open to the decree-holder to apply to the court which passed the decree to execute it itself or to transmit it to another court for execution, and such an application, would have been sufficient for the purpose of saving limitation under Article 167 (now 182) of the Limitation Act of 1871. The question is, when and how has the decree-holder been deprived of this right. In 1877 and again in 1882, the Code was repealed, and re-enacted with some re- drafting and re-arrangement which included the insertion of the present Sections 37 and 38 in the Code of 1877. Now there is a well-known presumption that such re-drafting and re-arrangements leave the substance of the law unaltered, and it follows that such a serious change as the abolition of the decree-holder s right to apply in all cases to the court which passed the decree in the first instance cannot be raised by implication but should plainly and clearly appear on the language of the sections. Now at the time when the Code of 1908 was enacted there was a long and unbroken series of express decisions that this was not the effect of these sections. Latchman Pundeh v. Maddan Mohun Shye (1880) I.L.R. 6 Cal. 513, Kartick Nath Pandey v. Tilukdhari Lall (1888) I.L.R. 15 Cal. 667, Kali Pado Mukerjee v. Dino Nath Mukerjee (1897) I.L.R. 25 Cal. 315, Jahar v. Kamini Debt (1900) I.L.R. 28 Cal. 238, and Pandu Ranga Mudaliar v. Vythilingam (1907) I.L.R. 30 Mad. 537 : 17 M.L.J. 417. So that the legislature was well warranted in considering this point as settled. Two questions only had arisen under these sections, one whether the court which passed the decree had jurisdiction to execute fully a decree for the sale of immoveable property by selling it where the area in which the immoveable property was situated had been removed to another jurisdiction. It was held by the Full Bench in Prem Chand Dey v. MoKhada Debi (1890) I.L.R. 17 Cal 699 (F.B.), that it had not; but it was assumed in that case and expressly decided in Girindro Chunder Roy v. Jarawa Kumari (1891) I.L.R. 20 Cal. 105, Piggott, J., being a party to both decisions, that in such a case it was a proper course to apply to the court which passed the decree to send the decree for execution to the other court. Then there was a difference of opinion as to whether this was the only proper course, or whether after such a transfer the court which passed the decree could be treated as "having ceased to have jurisdiction to execute the decree " within the meaning of Section 649, now Section 37, so as by virtue of that Section to cause the court to which the area had been transferred to be regarded as a court which passed the decree within the meaning of Section 223 (now 38). One view was taken in Latchman Pundeh v. Maddan Mohun Shye (1880) I.L.R. 6 Cal. 513, and Jahar v. Kamini Debi (1900) I.L.R. 28 Cal. 238 and another in Kali Pado Mukerjee v. Dino Nath Mukerjee (1897) I.L.R. 25 Cal. 315 and Panduranga Mudaliar v. Vythilingam (1907) I.L.R. 30 M. 537. This was the state of the authorities when the Code of 1908 was enacted, and we are told by Messrs. Woodroffe and Amir Ali that it was proposed to enact expressly that application might be made to either court, The draft section to that effect which dealt with other complicated questions was not adopted but it seems to me that the legislature brought about the same result in another way. The jurisdiction of the court which passed the decree was sufficiently recognised by the decisions as I have pointed out and indeed had never been doubted up to that time, and there was therefore no need to re-affirm it. The case of direct application to the court to which the area had been transferred was met by the enactment of the new Section 150 which was in terms wide enough to authorise that court to entertain in the first instance any application which might have been made to the court which passed the decree.

(3.) This I think should have settled the question. Unfortunately in Alagappa Mudaliyar v. Thiyagaraja Mudaliyar (1910) M.W.N. 477 when I was sitting with Krishnaswamy Aiyar, J., the Advocate-General cited certain American treatises to us, passages from which are cited in the later case of Subbiah Naicker v. Ramanathan Chettiar (1914) I.L.R. 37 Mad. 462 and formed the main ground for that decision, and though wecame to no decision, we were sufficiently influenced by them to leave the point open and proceed by way of transfer in the particular case. In this I think we were wrong. The Privy Council has since deprecated the tendency of Indian Courts to resort unnecessarily to American instead of the English authorities, that is how I understand their observations in Imambandi v. Matsaddi (1917) L.R. 45 I.A. 73 at 93, and in this case it would have been better to see how the question had been dealt with in England, especially as the case of the County Courts affords a complete analogy. Those courts were established some years before the Code of 1859, and have jurisdiction over irnmoveable property. Power to transfer particular areas from one court to another was given and has been freely exercised, but it has never been suggested that the fact of such a transfer takes away the power of the court which passed the decree to entertain application for execution. The power of sending the decree to another court, if the court itself was not in a position to execute it, has been found sufficient to meet the case. That it seems to me was the scheme of the Code as held in Pandu Ranga Mudaliar v. Vythilingam (1907) I.L.R. 30 Mad. 537, until 1908 when Section 150 then conferred upon the court of the transferred area power to entertain the application in the first instance; but this cannot be read as taking away from the court which passed the decree the power which it then had according to the unbroken current of authorities for many years which the legislature must be taken to have recognised. Again, as the American writers allow, in questions of the kind the particular statutes must always be looked to, and where, as in the present case, the Code provided two methods of executing decrees both originating in the court which passed the decree and one of them admittedly applicable to the case of the area having been transferred to the jurisdiction of another court before the application for execution,this sufficiently indicated the procedure which the legislature desired to be followed, and removed all occasion tor raising inferences which might possibly have had to be raised if the legislature had provided no method at all of executing decrees where the areas had been transferred. It only remains to refer to the arguments which have been addressed to us on the language of Sections 37 and 38 (formerly 649 and 223) to show that all the decisions on this point down to 1908 were wrong. The words to be interpreted are " a decree may be executed by the court which passed it" in Section 38 (223), a section first inserted in 1877 and merely declaratory of the existing law. These words again have to be interpreted in the light of Section 37, an interpretation clause reproduced from Section 649 of the Code. Section 37 provides that the words " court which passed a decree shall be deemed to include (a) where the decree to be executed has been passed in the. exercise of appellate jurisdiction, the court of first instance", and an argument has been based on this clause. Now it may well be that under Sections 37 and 38 the appellate court has no jurisdiction to execute its own decree, but that is not because such jurisdiction is excluded by the use of the word "include " as has been argued, but because it had no such jurisdiction under Section 362 of the Code of 1859, and it may well be questioned, having regard to the presumption already referred to, whether, when that section was eliminated in re-drafting and the matter was dealt with in Sections 649 and 223 (now 37 and 38), there was any intention to confer on the appellate court jurisdiction which it had not till then possessed. We have however to deal with Clause (b), and where the decree-holder had a valuable right under the Code of 1859 to apply to the court which passed the decree at least for execution by way of transmission, and where the present Code provides expressly that a decree may be executed by the court which passed it, the contention that this important right must be held to have been taken away because of the provision in Section 37 that these words shall be deemed to "include " another court appears to me to be altogether untenable. It may be that in some rare and exceptional instances the category of things " included " in a definition may be held to be exhaustive, but ordinarily, as observed in Stroud s Dictionary it is " a phrase of extensive and not of restrictive jurisdiction," and it cannot in my opinion be used here to deprive the decree-holder of the important right which he had till then of applying in all cases in the first instance to the court which passed the decree, especially having regard to the fact that the section itself was inserted when the Code was in process of re-drafting and re-arrangement, when, as I have already said, there is a presumption against alterations by implication only. In Subbiah Naicker v. Ramanathan Chettiar (1914) I.L.R. 37 Mad. 462 the question does not seem to have been sufficiently argued from the point of view of the decree-holder s rights, and attention was not called to the history of the section. Further the decision is opposed to a long line of authorities which I think the legislature accepted in 1908, and is also mainly based on citations from American treatises which I now think do not afford a satisfactory basis for the decision of a question of this kind, or afford any sufficient reason for answering the question in the negative. Both on principle and on the balance of authority and convenience my answer is that the court which passed the decree is a proper court for the purpose mentioned in the question referred to us. Ayling, J.