T.A. Chidambaram Chetty and Another vs M.L.M. Ramanatham Chetty

In Original Suit No. 111 of 1915, the respondent obtained a decree on the original side of the High Court against the appellant for a large sum

of money. In November 1915, an application was made for concurrent execution of this decree in Madras, Burma, Tanjore and Pudukottah. As

the decree was passed within a year of the application, it was granted without notice to the appellant. The decree was transmitted to the Chief

Court at Pudukottah on the 23rd November 1915 for execution. On the 19th October 1916, an application was made td Coutts Trotter, J. for the

cancellation of the order transferring the decree to Pudukottah. The application was dismissed, on the ground apparently that it was in accordance

with settled practice. Hence this appeal.

Section 39 of the CPC provides for the transmission of decrees for execution to Courts within whose jurisdiction either the judgment debtor

resides or his property is situate. Section 40 deals with the transmission of decrees to another province in British India. Section 43 provides for a

decree being sent to a court established by the Governor General in Council outside British India under the Foreign Jurisdiction Act. As

supplementary to Section 43, Section 45 lays down that in the courts so established the rules which are observed in the execution of decrees in

Courts in British India shall be followed. Section 44 deals with decrees of what are known as favoured Native states. That section provides that

decree of the Courts of any Native Province or state in alliance with His Majesty may be executed in British India as if they were passed in British

India. There is no converse provision that decrees passed in British India can similarly be executed in Courts established by the authority of a

Native Province or state. The absence of such a provision seems to be conclusive upon the question. Further it is a well known principle of

jurisprudence that no country can legislate for the procedure to be followed in a foreign state. Therefore it seems to us that the order transmitting

the decree for execution is not sanctioned by the Code. There is the positive authority of Kasturchand Gujar v. Parsha Mahar ILR (1887) B. 230

in favour of this view. The case of Rantan Mahanti v. Khatoo Sahoo ILR (1902) C. 400 also enunciates the same principle. As regards the

suggestion that a long practice should not be departed from on a question of procedure it is enough to say that where want of jurisdiction is

established, long practice would not avail. Palmer v. Hutchinson (1881) L.R. 6 A.C. 619 and Rajah of Ramnad v. Seetharam Chetty ILR (1902)

M. 120.

Mr. Krishnaswami Aiyar for the respondent drew our attention to the fact that no appeal was preferred against the order transmitting the decree

for execution, and argued that it is not open to us to question its validity at this stage. We are of opinion that as the order was passed exparte and

was without jurisdiction the appellant is entitled when it comes to his notice to apply to vacate it within the time limited under Article 182 of the

Limitation Act. As it relates to the execution of the decree which was sent to Pudukottah in November 1915, there is no bar of limitation. See

Tikat Ajant Singh v. F.T. Christen (1912) 17 C.W.N. 862.

We must therefore hold that the order transmitting the decree was made without jurisdiction and must be set aside. We make no order as to

costs.