P.T. Munia Servai vs Hanuman Bank Ltd. by Official Liquidator

P. Rajagopalan, O.C.J.

The appellant, P.T. Munia Servai, was indebted to the Hanuman Bank. The Bank was ordered to be wound up in 1947. During the liquidation

proceedings Munia Servai deposited the title-deeds of certain of his properties situate in Tanjore District as security for the amount due from, him

to the Bank. That was on 13th February, 1948. On Application No. 4085 of 1948, preferred by the Official Liquidators, the Court determined the

liability of Munia Servai at Rs. 4,80,596-9-0 and he was further directed to deliver his properties to the Liquidators. Subsequent to that, Munia

Servai preferred Application No. 3701 of 1953 to reduce the quantum of his liability to the Bank. By agreement between the Liquidators and the

debtor, the liability was reduced, and the Court fixed the reduced liability at Rs. 1,74,238-8-0. By clause (3) of its order dated 21st October,

1953, this Court directed that out of the amount of Rs. Rs. 1,74,238-8-0, a sum of Rs. 25,000 should be paid on or before 21st November,.

1953 and that the balance should be paid on or before 21st July, 1954; Clause (4) of the order, dated 21st October, 1953, directed that in default

of payment of the sum of Rs. 25,000 the entire amount due, that is, Rs. 1,74238-8-0 should become immediately payable. The direction in clause

(6) was that

upon the failure of the said P.T. Munia Servai to discharge the liability within the time feed in clause 3, all the said charged properties including the

Thanampadigai properties shall be sold for the realisation of the dues.

Munia Servai, however, was appointed Receiver of the Thanampadigai properties and he continued in possession as such. Munia Servai did not

comply with the directions contained in the order, dated 21st October, 1953. On 26th August, 1957, the Liquidators preferred Application No.

1598 of 1957, which was in effect an application to execute the order, dated 21st October, 1953. The Liquidators sought a direction for the sale

of the charged properties and for the appointment of a Commissioner to conduct that sale. The defences to that claim for execution put forward by

the judgment-debtor, Munia Servai, were overRuled by Subrahmanyam, J., by his order, dated 26th November, 1957. The learned Judge

ordered the sale of the properties other than those at Thanampadigai. The learned Judge directed the Liquidators to apply for further directions for

the sale of the Thanampadigai properties. It was against this order, dated 26th November, 1957, that this appeal was preferred by the judgment-

debtor Munia Servai.

In the proceedings before Subrahmanyam, J., several defences were put forward in bar of the claim of the Official Liquidators to realise by

execution and sale of the charged properties the amount ultimately decreed on 21st October, 1953, in Application No. 3701 of 1953. It may not

be necessary to set out those contentions. The only plea of the judgment-debtor which was also overruled by the learned Judge which was pressed

before us by the learned Counsel for the appellant was that the application preferred in August, 1957, to execute the decree, dated 21st October,

1953, was barred by limitation. That was the only question we were called-upon to decide.

The question for determination is whether Application No. 1598 of 1957,which as we said, was in effect an application for execution, fell within

the scope of Article 182 or Article 183 of the Schedule to the Limitation Act. The contention of the judgment-debtor was that it was Article 182

that applied and not Article 183, and that the application having been preferred more than three years after the date of the decree, 21st October,

1953, was barred by limitation The contention of the Liquidators-decree-holders which was accepted by the learned Judge, was that Article 183

applied. That if Article 183 did not apply, the claim would fall within the scope of Article 182 could not admit of any doubt. Therefore, the real

question for our consideration is whether the claim of the Liquidators-decree-holders fell within the scope of Article 183.

The period of limitation prescribed by Article 183, 12 years, will apply where an application is to ""enforce the judgment, decree or order of any

Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction"". It was in exercise of the jurisdiction conferred on this

Court by the Banking Companies Act (Act X of 1949) that the order, dated 21st October, 1953, was passed. That that jurisdiction was orginal

civil jurisdiction within the meaning of Article 183 was never in dispute. The learned Counsel for the appellant urged that to attract Article 183 it

was not enough to show that the order under execution was passed by this Court in the exercise of its original civil jurisdiction. It had to be

established further that the order the enforcement of which was sought by the decree-holders, was issued in the exercise of the ordinary original

civil jurisdiction of this Court. So the question for determination is whether the jurisdiction conferred on this Court as a High Court by the Banking

Companies Act is ordinary original civil jurisdiction of this Court within the meaning of Article 183.

That the jurisdiction, in the exercise of which this Court passed the order, dated 21st October, 1953, did not come within the purview of the

ordinary original civil jurisdiction defined in clauses 11 and 12 of the Letters Patent could not admit of any doubt. Clause 11 defined the territorial

limits of the jurisdiction, suits arising within which would be tried by this Court in the exercise of the ordinary original civil jurisdiction conferred on

this Court by clause 12. Is that exhaustive of the ordinary original civil jurisdiction prescribed by Article 183 of the Limitation Act, is the question.

The learned Counsel for the appellant invited us to read Article 183 as if it read ""to enforce. the order of any Court established by Royal Charter

passed in the exercise of its ordinary original jurisdiction conferred by that Charter and defined by it"". We are unable to read these further words of

limitation into Article 183. In our opinion, for the purposes of Article 183, the test to decide what constituted the ordinary original civil jurisdiction

of a High Court originally established by Royal Charter is still that laid down by the Privy Council in the Matter of (1889) L.R. 16 I.A. 156 (Privy

Council) , dealing with the contention, that the insolvency jurisdiction of the Bombay High Court, though Civil and Original was not ordinary, Lord

Hobhouse said:

But their Lordships are of opinion that the expression ''ordinary jurisdiction'' embraces all such as is exercised in the ordinary course of law and

without any special step being necessary to assume it ; and that it is opposed to extraordinary jurisdiction which the Court may assume at its

discretion upon special occasions and by special orders.

The order under execution in that case was that passed in the exercise of the insolvency jurisdiction of the High Court, which was entered up as

a judgment of the High Court in 1868. Lord Hobhouse observed:

The judgment of 1868 was entered up by the High Court not by way of special or discretionary action, but in the ordinary course of the duty cast

upon it by law according to which every other case of the same kind would be dealt with. It was therefore entered up in exercise of the ordinary

original civil jurisdiction of the High Court;

Judged by that test, the jurisdiction conferred on this Court by the Banking Companies Act is part of its ordinary original civil jurisdiction within

the meaning of Article 183. That jurisdiction has to be exercised in the ordinary course of law without any special step being necessary to assume

it. The order, dated 21st October, 1953 was passed in the exercise of the jurisdiction assumed, not by way of special or discretionary action, but

in the ordinary course of duty cast upon this Court by law according to which all cases of the same kind would have to be dealt with. In the

application of that principle it is immaterial whether the ordinary original civil jurisdiction, besides that provided for by clause 12 of the Letters

Patent is one conferred by the Letters Patent itself, or by a separate enactment.

The learned Counsel for the appellant referred to Kuppuswami Nayagar, In re (1929) 59 M.L.J. 17 ; ILR Mad. 237. In his order of reference

Kumaraswami Sastri, J., observed at page 240:

I think there is a distinction between the Original Jurisdiction of the High Court and the Ordinary Original Civil Jurisdiction of the High Court. All

applications to the High Court are either civil or criminal. They are Original Givil when matters come for the first time to the High Court, and they

are Appellate Civil when they come in the form of appeals. The granting of probates or succession certificates will come within the Original Civil

Jurisdiction, but it would not come under Ordinary Original Civil Jurisdiction, which, by the Letters Patent, seems to be confined to suits and

matters under clauses 12 to 21, which refer to the exercise by the High Court of its Ordinary Original Givil Jurisdiction.

But to answer the question at issue before him, whether under the Indian Succession Act as it stood then, the High Court had jurisdiction to

entertain an application for the issue of a succession certificate, the learned Judge was of the view that the test to apply was the one adumbrated to

by Lord Hobhouse in In the matter of (1889) L.R. 16 I.A. 156 (Privy Council) . We are not concerned at this stage with the question, whether the

learned Judge''s tentative conclusion which he reached in that case on the application of that test, was correct. That it was not correct was the view

of a Division Bench of the Allahabad High Court in Banaras Bank Ltd., (In Liquidation) Vs. Jyoti Bhushan Gupta and Another, . It was on an

application of the principle laid down in In the matter of (1889) L.R. 16 I.A. 156 (Privy Council) that the learned Judges of the Allahabad High

Court held in that case, that an order passed by the High Court of Allahabad u/s 186 of the Companies Act was an order passed in exercise of its

ordinary original civil jurisdiction and was governed by Article 183 and not by Article 182 of the Limitation Act.

Our attention was not drawn to any reported decision bearing directly on the question, whether the jurisdiction exercised by this or other High

Courts, originally established by Royal Charter, under the Banking Companies Act is its or dinary original civil jurisdiction within the meaning of

Article 183. The correctness of the principle laid down in In the matter of (1889) L.R. 16 I.A. 156 (Privy Council) has never been questioned. It

has been consistently applied by Courts in India. We have therefore refrained from examining the other cases cited before us at the bar. Nor have

we considered it necessary to trace the legislative history of Article 183.

We are content with resting our decision in '' his appeal on the scope of Article 183, interpreted in ihe light of the observations of Lord

Hobhouse in In the matter of (1889) L.R. 16 I.A. 156 (Privy Council) We do not therefore consider it necessary to deal with the other contentions

of the learned Counsel for the liquidators, one of which was that, even if Article 182 applied, the bar of limitation, imposed by that Article should

be held to have been removed by Section 45(0) of the Banking Companies Act. Prima facie that contention looks untenable but it is not necessary

to record any concluded opinion of ours even on that question.

We agree with Subrahmanyam, J., that it was the 12 year period of Article 183 that applied, and that the claim of the Liquidators-decree-

holders to enforce the order, dated 21st October, 1953 was not barred by limitation.

This appeal fails and is dismissed with costs.