Bhanumati Dasi vs Gour Mohan Sett

Sen, J.—This appeal arises from an order of Shri K.M. Roy, Subordinate Judge, Chandernagar, dismissing an objection u/s 47 of the CPC against the execution of "grosse" copies of four Notarial Mortgage Bonds executed in French Chandernagar during the French regime.

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 u/s 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 CPC ceased to have effect and the CPC 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 u/s 47 of the CPC 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 CPC under which the proceeding was started had been repealed. The mortgagee-Respondent opposed the application u/s 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 u/s 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.

Against that order the debtor Bhanumati Dasi has filed the present appeal. The points urged before the lower court have been repeated before us and we have to deal with them one by one.

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 CPC of which a translation is as follows:

Any suit, although there may not be appointment of pleader, shall be extinct by discontinuation of proceedings during three years. This period will be increased to six months in all cases where there will be occasion to petition for resumption of the suit or appointment of a new pleader.

Under the French CPC it appears that the parties or their pleaders have to take the initiative at several stages of the proceedings and this article provides that if the parties or their pleaders fail to take any step during a period of three years the suit would be deemed to be extinct. In the present case the suit was stayed by an order of the French Court from May 6, 1944, till the final disposal of the suit brought by Sachindranath for a declaration that he was the preferential heir of the original mortgagor Upendranath Sett. The suit of Sachindra was finally disposed of on December 17, 1946. Accordingly between May 6, 1944 and December 17, 1946, the suit was stayed under an order of the court and that was not a period during which the party or his pleader could have taken any step. Between December 17, 1946 and August 27, 1949, it is true that no step was taken by the creditor but the period of three years did not elapse between December 17, 1946 and August 27, 1949 and therefore it cannot be held that the suit became extinct. Mr. Mukherjee has urged that even stay by an order of the court would amount in discontinuation of proceedings within the meaning of Article 397 of the French Code of Civil Procedure. We are however, unable to accept this interpretation and we think that the term "discontinuation of proceedings" must mean failure of the parties or their pleaders to take proper steps when it was open to them to take such steps. There was no discontinuation of suit for three years within the meaning given by us and it cannot be said that the suit had become extinct.

The next point urged by Mr. Mukherjee is that the "grosse" copy was not filed when the commandement was issued under Article 673 of the French Code of Civil Procedure. The first sentence of Article 673 runs as follows:

The distress on real property shall be preceded by a demand notice (commandment) in person or at residence; ahead of this writ, entire copy of the title-deed by virtue of which it is made, will be given.

Mr. Mukherjee''s argument is that by "entire copy of the title "deed" is meant the grosse copy of the Notarial mortgage deed, but the terms of the section, as quoted above, do not refer to the grosse copy of the Notarial mortgage deed. It merely refers to the "entire copy of title deed". In the present case there is material on the record to show that copy of Notarial mortgage deed was served on the debtor before the commandement was issued. This appears from the copy of the "commandement" printed at pp. 3 to 5 of the paper-book. The commandement started with the description of each of the four grosse copies of the Notarial mortgage deeds and in describing them it is mentioned that the copy after having been duly signed and sealed had been served on the heir, by process of the Nazir on August 20, 1943. The commandement or notice to pay the dues within 30 days was issued thereafter on November 30, 1943. Thus the relevant terms of Article 673 were complied with and there was therefore no such defect in the procedure before the French Court as has been urged by Mr. Mukherjee.

Mr. Mukherjee has next referred to Articles 675 to 678 of the French CPC which lay down the procedure in connection with the attachment which follows the service of the demand notice or commandement and he has objected that the procedure was not correctly followed. It is necessary under Article 678 that the distress or attachment of property shall be transcribed in the register kept in the office of the Conservator of Mortgages. Article 675 mentions the requirements of the writ or proceedings for attachment. In that writ also the description of all the mortgaged properties is necessary. Mr. Mukherjee has pointed out that item (1) of the properties mentioned in the Nazir''s report as to the attachment of mortgaged properties which is printed at pp. 5 to 10 of the paper-book was not registered in the register kept under Article 678 (vide the note printed at p. 11 of the paper-book). The note in the register was made only in regard to the properties mentioned in the 2nd, 3rd, 4th and 5th of the lots, and it was noted that the property mentioned in the first lot had been the subject-matter of a previous attachment and had been registered on transcription in the office in connection with such previous prayer for attachment by one Harinath Banerjee. Accordingly, that item was not registered on the present occasion. This was in accordance with Article 680 of the French Code of Civil Procedure, which provides that if there has been a previous attachment the Conservator shall declare his refusal in the margin of the second one; he shall state the date of the preceding attachment, the names, residence, etc. of the execution creditor and of the person distrained and other necessary details. The result would be that lot No. 1 would remain subject to the previous attachment by the other creditor and therefore only lots Nos. 2 to 5 could be sold by the present creditor-Respondent. In fact in the subsequent sale notice which was issued, lot No. 1 was excluded and lots Nos. 2 to 5 only were notified for sale. This appears from the cahier de charges or the booklet for conditions of sale dated February 5, 1944, which is printed at pp. 13 to 22 of the paper-book. It is, therefore, clear that there is no substance in this objection.

The next objection pressed in this connection by Mr. Mukherjee is that the sale was adjourned sine die in contravention of provisions of Article 703 of the French CPC and this made the entire proceedings a nullity. Article 703 provides that the auction sale, after a date has been fixed for the sale, could be postponed on the petition of the execution creditor or one of the registered creditors or of the person distrained but only for serious and duly justified causes; and that the postponement shall fix the date of the sale not less than fifteen days and not more than sixty days from the date originally fixed. Mr. Mukherjee has urged that as the sale was adjourned sine die by the order of court dated May 6, 1944, that was a bad order. He has referred in this connection to Article 715 which provides that unless the procedure prescribed by certain articles is followed the proceeding shall be a nullity. In Article 715, however, Article 703 is not one of the articles mentioned non-observance of the provisions of which" render the proceeding a nullity. It is to be observed that Article 703 deals with such adjournment of sale as is possible without issuing a fresh sale proclamation. In the portion of the French CPC which has been placed before us, we have not been able to find any provision relating to the adjournment of the sale sine die in connection with another proceeding. There must, however, be such provision for staying the proceedings of sale on account of another proceeding or on account of an order of the appellate court. Even if there is no such provision, it must be presumed that the court has inherent power to make such an order adjourning a sale sine die pending the decision of the question of title of the debtor or the creditor. Accordingly, it cannot be urged either from general principles or by reference to the provisions of the French CPC that the proceedings became invalid merely because it was stayed pending the final disposal of the suit brought by Sachindranath Sett claiming the declaration that he was the legal and valid heir of original mortgagor.

The proceeding was resumed on August 27, 1949, when notice of the suit was served again on the Appellant to appear on September 10, 1949, for fixing a date of sale. That notice is printed at pp. 38 and 39 of the paper-book. The effective portion of the notice was as follows:

Whereas according to the judgment of April 1, 1944, the court... ordered the suspension of the sale till the definite decree on the appeal preferred against the judgment of August 14, 1942 and whereas on the appeal lodged by the Petitioner, the court has confirmed the aforesaid judgment and whereas it is now necessary to fix a date for the sale in accordance with the judgment of the court dated April 1, 1944; consequently, at the request of the Petitioner, I have summoned the Defendant to appear on Saturday, September 10, 1949, to be present for fixing the date of the auction sale of the properties distrained against her.

Mr. Mukherjee has argued that even assuming, that the proceedings were validly resumed on August 27, 1949, with the issue of the notice, the proceedings were not held continuously and must be deemed to have been dismissed when no order was passed in the proceeding on the date fixed. By reference to the Plaintiff or general register which appears to be something like a court''s diary at pp. 40-41 of the paper-book, it appears that on September 10, 1949, the proceedings were adjourned by a month for communication of documents and again on October 8, 1949, the proceedings were adjourned by another month. But after one month there was no order and the next order appeared on January 28, 1950, on which date the proceedings were again adjourned for a fortnight for communication of documents. Other orders followed on February 10, 1950, February 25, 1950, March 18, 1950 and April 29, 1950, which is the last order before the de facto transfer of Chandernagar on May 2, 1950.

It is true that this Plaintiff or case diary shows certain breaks but, as pointed out by the learned Subordinate Judge, if the papers were not put up before the presiding officer of the court on certain intermediate dates it could not be said that the proceedings had lapsed. There was in any case no break for a period of three years and it cannot, therefore, be held that the" proceedings, even if validly resumed on August 27, 1949, with the issue of notice on the debtor, had again lapsed for want of continuity.

Thus all the arguments advanced by Mr. Mukherjee to show that no proceedings were validly pending on May 2, 1950, must be rejected and we must hold that the proceeding, namely, Sale Suit No. 5 of 1944, was pending on May 2, 1950, and therefore it stood validly transferred to the court of Subordinate Judge of Chandernagar by the provisions of Section 10 of the Chandernagar (Administration) Regulation.

The next objection on behalf of the Appellant is that the grosse copy of the Notarial mortgage bond does not amount to a decree of the court, and therefore, it cannot be executed. The learned Subordinate Judge held that the grosse copies were not decrees or orders of civil courts of competent jurisdiction, but he held at the same time that the grosse copies could in themselves be executed, and therefore, the execution proceedings would not fail. It must be held in view of the French procedural law that the grosse copies of Notarial mortgage-deeds, while they are not strictly speaking decrees of a competent court, have the force of decrees and can be executed as if they are decrees, after the service of the copies of the mortgage-deeds on the debtor and after issue of the "commandement" calling upon the debtor to pay up the debts with interest accrued within the stipulated period. In one unreported case of this High Court Gour Mohan Sett v. Gokul Chatterjee Unreported, F.M.A. No. 50 of 1953, it appears to have been conceded by both parties that Notarial Bonds with grosse engrossed upon them have the force of decrees of a civil court. That position was tacitly accepted by both the parties in the case cited above. In the present case no doubt Mr. Mukherjee does not admit that grosse copies of Notarial Bonds amount to decrees of a civil court, but in view of the fact that it could be executed by sale after service of the notice or commandement calling upon the debtor to pay and after an attachment of the mortgaged properties it must be held that the grosse copies of Notarial Bonds have the force of decrees and can therefore be executed now in view of the provisions of the Chandernagar (Administration) Regulation.

Mr. Mukherjee has urged that since the French CPC is no longer in force and the proceeding must continue under the CPC of India the creditor must proceed from the stage of obtaining a preliminary decree and a final decree, and he can proceed to execution only after obtaining such decrees. In view of the provisions of the Chandernagar (Administration) Regulation, however, it must be held that the creditor will not lose the benefit of the proceeding already started by him, namely, Sale Suit No. 5 of 1944; and the Chandernagar (Administration) Regulation expressly, provides that in respect of the pending suits the CPC shall not apply in its entirety but only in so far as possible. This is clear from Clause (c) of Section 10 of the Regulation which provides that the provisions of the CPC shall apply to all proceedings instituted after May 2, 1950, and so far as may be to all cases pending on the aforesaid date. Section 12 of the Regulation further provides that for the purpose of facilitating the application of any law in Chandernagar, any court or other authority may construe any such law with such alterations, not affecting the substance, as may be necessary or proper to adapt it to the matter before the court or other authority. This is a sufficient answer to Mr. Mukherjee''s contention that unless there is a decree, the civil court cannot execute the same and cannot proceed to sell the mortgaged properties in execution. Since under the French CPC the grosse copies of the Notarial Mortgage deeds after issue of commandement or notice of demand and after attachment of the properties had the force of decrees and the creditor could proceed to sell the mortgaged properties, and since the proceeding had reached the stage of sale, it must be held that the creditor can now proceed to the sale of the mortgaged properties without the necessity of having to obtain a mortgage decree again under the Code of Civil Procedure. The creditor is entitled to proceed from the stage of execution which had already been reached before May 2, 1950. At that stage the debtor was already before the court and the matter before the court was for fixing a date of sale. In view of the long lapse of time we consider it desirable that the creditor should now start from the stage of issuing a notice for settling the terms of sale within the meaning of Order XXI, Rule 66(2) of the CPC because the price of land as noted in the cahier de charges must now be substantially increased in view of the rise in land value and other changes may be necessary due to the long lapse of time.

Subject to the aforesaid observations this appeal is dismissed with costs-hearing fee being assessed at five gold mohurs.

Guha Ray, J.

I agree with the judgment just now delivered by my learned brother and the order made by him dismissing the appeal but I should like to add a few words of my own, on the last point argued by Mr. Mukherjee on behalf of the Appellant, namely, that the grosse copies of the Notarial Bonds not being decrees the execution cannot proceed and everything will have to be started afresh on the footing that what is pending, if anything is pending at all, is really a suit. It is certainly true that the proceeding before the French Court was classified as a sale suit. Under the French Code of Civil Procedure, Notarial Bonds have not got to be enforced by way of a suit but the creditor can apply to the court for enforcement of the Bonds by sale of the mortgaged properties; in other words, unlike our CPC the French CPC does not provide for a suit for the enforcement of such Bonds. Naturally, therefore, under the French law there is no question of a decree being passed and the court has under the French law to proceed straight to a sale of the mortgaged properties according to the formalities laid down in the French CPC Code. Mr. Mukherjee''s contention was that what was actually pending before the court was a sale suit and therefore if the suit was pending it should begin afresh and should proceed according to our CPC or in other words, it should be tried as a suit first and there should be a preliminary decree and then a final decree and then alone the final decree could be put into execution. If this contention is correct it will mean that whatever has happened according to the French CPC during all these ten years or more will be completely wiped out although u/s 10 of the Chandernagar (Administration) Regulation, 1952, all proceedings, civil or criminal, which immediately before May 2, 1950, were pending in any court in Chandernagar shall 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. It is clear from Section 10(a) of this Regulation that whatever civil proceedings were pending on May 2, 1950, before a French court at Chandernagar stood automatically transferred by virtue of this Regulation to a corresponding civil court for the area. The proceedings, therefore, which were pending, could not be treated as though nothing had happened up to that date; on the other hand, what was validly done under the French law up to that date would have to be regarded on May 2, 1950, as something in the nature of an accomplished fact behind which one was not entitled to go and then the Indian law which came into force at Chandernagar, with effect from that date had to be applied to the proceedings from the stage it had already reached up to that date. That this was so would be further clear from Section 7 of the Chandernagar (Application of Laws) Order, 1950, passed u/s 4 of the Foreign Jurisdiction Act, 1947. It came into effect from May 2, 1950. Section 7 provides as follows:

Unless otherwise specially provided in the Schedule to this Order all laws in force in Chandernagar immediately before the commencement of this Order which correspond to the enactments specified to the Schedule shall cease to have effect, save as respects things done or omitted to be done before the commencement of this order.

This expressly saves things already done under the French law and in these proceedings the starting point of the application of Indian law will be the stage the proceedings have already reached under the French law. Now although the proceedings themselves were described under the French law as a sale suit they were, if they would be compared to anything in our law, really proceedings in execution, if not of a decree, of a Notarial Bond by way of sale of the properties mentioned in the Bond. They were thus having the effect of decrees though, as already stated, under the French law there could be no question of their being treated as decrees as there was no provision at all in the French CPC for a suit for enforcement of such Bonds. The contention, therefore, of Mr. Mukherjee cannot be given effect to.