Seth Chand Mull Dudha, C.I.E. vs Purushothamdoss

Murray Court Trotter, C.J.—This is an application under Order 38, Rule 1, Civil Procedure Code, for arrest before judgment of the

defendant and an order that he should be made to show cause in compliance with Section 94(a), Civil Procedure Code, why he should not give

security for his appearance. At the close of the argument I intimated what I proposed to do in the matter but as it is one of considerable general

importance I thought it best to state my reasons formally. The facts are shortly as follows: The suit was brought on the Original Side of this Court

for a sum of very nearly 5 1|2 lakhs and it was founded! upon what he described as ""the decree dated 19th December, 1925, at Hyderabad,

Deccan, of the Court of the Judicial Commissioner in, the State of His Exalted Highness the Nizam of Hyderabad,"" that suit is not before me but

will be tried in the ordinary course by a Judge sitting on the Original Side of this Court and I desire to say nothing that would in any way seem to

anticipate that decision. But I am asked here to exercise a jurisdiction the effect of which might be to compel a man either to furnish security in a

very large sum of money or possibly on his failure to do so to undergo imprisonment. 1 think it is desirable that I should state what are the

principles which in my opinion should guide me in exercising that jurisdiction. It appears to me that before exercising the powers conferred by

Order 38 a Court should be satisfied on two points. The first is that the plaintiff''s cause of action is prima facie an unimpeachable one subject to

his proving the allegations made in the plaint. The second is that the Court should have reason to believe on adequate materials that unless the

jurisdiction is exercised there is a real danger that the defendant will remove himself from the ambit of the powers of the Court. For the reasons

which I am about to give I do not think it necessary for me to go into the second point in this case as I do not think that the plaintiff has succeeded

in establishing his position on the first point. The debt on which the Hyderabad proceedings were founded was incurred about 50 years ago before

the present defendant was born, in any event before the year 1877, because in that year a suit of some sort was launched for this very debt against

Hargopaldoss, the brother of the present defendant''s grandfather. It appears to have been started in a tribunal called the Court of Bankers which

ceased to exist before any conclusion was arrived at; and according to the plaintiff, the suit was then transferred to the High Court of Hyderabad

which I take to be the ordinary and regular tribunal in that State for the disposal of civil cases. No final judgment was ever delivered1 in that Court

because owing to some failure by the plaintiff to pay stamp-duties or fees in the regular course the High Court ordered the suit to be taken off its

list of pending cases. This statement I take from the affidavit of the plaintiff himself. The defendant says that that order was passed as long ago as

1881, and his statement is uncontradicted. In March 1922 a petition was addressed by the plaintiff to His Exalted Highness the Nizam of

Hyderabad and in response to that petition a firman was issued by His Exalted Highness appointing a special Commission to hear and report to

him upon the claim and apparently some special directions were given in the firman, a complete copy of which has not been put before me, as to

how the plea of limitation which, it was doubtless anticipated, the defendarft would set up was to be dealt with. The Commissioners were two

Judges of the High Court and a gentleman who is described as holding the office of Sadrul Maham which is translated as Head of the Department

of Commerce and Industries. That tribunal issued a report a copy of which is before me furnished by the plaintiff. The Commissioners framed

issues, heard evidence, and examined accounts. The wording of a portion of the firman is quoted to the effect that the suit is to be heard by the

Commission "" irrespective of limitation "". The issue that was framed is this: ""Is this case different from the case of Amersi Sejan Mal and Mahanand

Ram Puran Mal (that is apparently the Original Suit in the Court of Bankers) and is it not covered by the firman and is it not exempt from limitation

with a note ""onus on the defendant?"" The reason for framing this issue in this form appears to be as follows, that the plaintiff contended that the

proceedings before the Commissioners were a mere continuation of the old suit that was filed before the defunct Court, the Court of Bankers, in

1877, and it was alleged that in that Court no question of limitation was ever entertained and no such plea was ever open to a defendant there.

I have not had put before me any information as to how the Courts of Ordinary Civil Jurisdiction in Hyderabad are constituted nor under what

authority the ordinary law of limitation is in force as it undoubtedly appears to be in the Ordinary Civil Courts of the State. I have no information as

to how far the prerogative of His Exalted Highness extends and I am not suggesting any doubts that His Exalted Highness was acting entirely within

his constitutional powers in issuing the firman of 1923. So far as I can ascertain from perusing the document, the proceedings of the Commission

really amounted to what I should call a report to be laid before His Exalted Highness and I gather that the mandate to pay a sum of money issued

to the defendant took the form of an order passed by His Exalted Highness in the amount reported by the Commissioners to be the sum in their

opinion due. I may add that the principal debt was found by them to be a sum of about 2 3|4 lakhs and that interest at the rate which is alleged to

have been originally agreed upon between the parties would, on a rough calculation, appear to amount to nearly 8 lakhs at simple interest and to

the stupenduous figure of about half a crore at compound. Such a conclusion obviously staggered the Commissioners and they cut down the

interest to the exact sum of the principal, I do not know on what legal basis.

I have already said that I do not propose to say anything about the merits of this case but I think before I make an order under Order 38 I must

at least be satisfied that the plaint does not reveal on the face of it any matter which is obviously doubtful and arguable. In my opinion this plaint

discloses highly contentious matters. Assuming as I do for the purposes of this case that the acts of His Exalted Highness as a sovereign prince

cannot be questioned in these Courts and that his subjects cannot be heard to say that any orders passed by him in relation to them are not binding

upon them or that he has not power to take away any matter from the jurisdiction of the ordinary Courts, to be dealt with by himself or anybody

appointed for the purpose by them, it nevertheless seems to me that there are two matters apparent on the face of this plaint which preclude me

from exercising the jurisdiction conferred on me by Order 38. The plaint is founded on the proceedings of the Special Tribunal created under the

firman and describes it as a decree of that Commission. As I have already pointed out, it is at least highly arguable that the proceedings before the

Commissioners terminated not in anything that could be called a decree or a foreign judgment within the meaning of Section 13 of the CPC but a

report submitted to His Exalted Highness to guide him as to what action he should take. It is also obvious that it is highly arguable that the order to

pay passed by His Exalted Highness, though binding on the defendant as a subject, is not a judgment but an executive Act. I pass no opinion as to

whether those arguments are sound or unsound but it appears to me that it would be wrong for me to subject this defendant to any process before

he has had an opportunity of urging them. It is inapposite to speak in this case of safeguarding the liberty of the subject because the matter comes

before me on the footing that the defendant is not a subject of His Majesty the King Emperor but of His Exalted Highness the Nizam. But at the

same time when the jurisdiction of this Court is involved against a subject of a foreign State on the ground that by coming within the physical

boundaries of the jurisdiction of this Court he is liable to be sued as if he were a subject of His Majesty, a duty is cast upon me to be as jealous in

safeguarding his liberties as if he were for all purposes a subject of His Majesty. I do not think it necessary to refer to the provisions of Section 13

of the CPC except in so far as inferentially I may be taken to have founded myself on Clause (a) of that S. as being a provision which it will be

open to the defendant to invoke in his favour, and I do not feel called upon to pay any attention to the argument about natural justice which is

referred to in Clause (d). It would obviously be grossly disrespectful of this Court to entertain any argument to the effect that an order passed by a

sovereign power by virtue of its prerogative was opposed to natural justice: nor for the matter of that am I able to see how natural justice,

whatever the expression may mean, can be said to include the right of a defendant to plead limitation, unless it is granted to him by a Statute

acknowledged by the Sovereign Prince to be binding upon him and to limit by its terms the exercise of his prerogative. I may add that the

impossibility of this Court taking upon itself to question the act of a Sovereign Prince on any such ground adds additional force to the defendant''s

contention that the act of His Exalted Highness was an executive act performed by him by virtue of his prerogative as a Sovereign Prince and not in

any sense a judgment or a judicial decree. In conclusion, I wish to repeat once more that all these matters which I have discussed are ultimately

matters for the Judge before whom the suit will come for trial, and that I need say no more than this: that they raise to my mind sufficient ground for

my refusing to act in anticipation of that determination by that tribunal. The summons will be dismissed with defendant''s taxed costs in any event.