Hansraj Nathu Ram vs Lalji Raja and Sons Of Bankura

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 173 of 1956

Decision Date: 30 April 1962

Coram: J.L. Kapur, A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter Hansraj Nathu Ram versus Lalji Raja and Sons of Bankura, the Supreme Court of India delivered its judgment on 30 April 1962. The judgment was authored by Justice J. L. Kapur and the bench comprised Justices J. L. Kapur, A. K. Sarkar, K. C. Das Gupta, N. Rajagopala Ayyangar and J. R. Mudholkar. The parties were identified as petitioner Hansraj Nathu Ram and respondent Lalji Raja and Sons of Bankura. The citation of the decision is reported as 1963 AIR 1180 and 1963 SCR Supplement (2) 619, with a later citator reference R 1971 SC 974. The case involved an execution issue concerning a decree that had been passed in favour of the respondent by a Subordinate Judge of West Bengal.

According to the headnote, the decree was transferred for execution on 28 August 1950 to the Court of the Additional District Judge of Morena, a jurisdiction that at the time lay in the former Gwalior State, later became part of the United States of Madhya Bharat and subsequently the State of Madhya Bharat. When the transfer occurred, the courts of Madhya Bharat were governed by the Indian Code of Civil Procedure as adapted by the Madhya Bharat Adaptation Order of 1948; however, the power exercised by the Court of Bankura to order the transfer was derived from sections 38 and 39 of the Indian Code of Civil Procedure. The judgment debtor objected to the transfer, leading to the dismissal of the application for execution. The High Court later allowed the appeal against that dismissal.

The appellant contended that the Court at Morena did not have authority to receive the decree under section 38 because the Indian Code of Civil Procedure was not applicable there. The principal questions presented were whether the Indian Code of Civil Procedure applied to the Court at Morena and whether the decree sought to be executed qualified as a decree of a foreign court. The Supreme Court held that, since the Court at Morena was not a court to which the Indian Code of Civil Procedure applied, the decree could not be transferred to it under that Code, rendering sections 38 and 39 inapplicable. The Court noted that the Indian Code of Civil Procedure was extended to Madhya Bharat only on 1 April 1951 by Act 2 of 1951, after the date of the transfer.

Consequently, the decree was deemed to be a decree of a foreign court, namely the Gwalior Court, and could not be executed under section 233, which required that a suit be instituted on the basis of a foreign decree before the Madhya Bharat Court of Civil Procedure. The Court further held that the Foreigners Act of 1946 was irrelevant for determining whether the decree was foreign, because execution of a decree is governed by the provisions of the Code of Civil Procedure, not by the Foreigners Act. Finally, the Court emphasized that a statutory provision must be interpreted according to its plain language and not read as if its language were different from what it actually is.

The Court emphasized that a provision must be read according to its literal language and not interpreted as if it expressed something different. The appeal, numbered 173 of 1956, challenged a judgment and order dated 15 November 1954 of the former Madhya Pradesh High Court at Gwalior in Civil First Appeal No. 9 of 1951. Counsel for the appellant was Ganpat Rai and counsel for the respondent was N. S. Bindra and D. D. Sharma. The full judgment was delivered on 30 April 1962 by Justice Kapur of the Supreme Court in this case. The appeal arose from a certificate issued by the High Court under Article 133(1)(c). Like Civil Appeal No. 24 of 1961, it raised the question whether the Indian Code of Civil Procedure applied and whether the decree sought for execution was issued by a foreign court. The case was described as a reverse situation because the decree to be executed had been passed by a court situated in the West Bedford province of former British India. In the proceedings, the appellant acted as the judgment‑debtor, while the respondent was identified as the holder of the decree. On 3 December 1949, the Subordinate Judge of Bankura in West Bengal passed a decree in favour of the respondent. A certificate of transfer was applied for on 27 July 1950, granted on 8 August 1950, and the decree was transferred for execution on 28 August 1950. The decree‑holder then instituted execution proceedings before the Additional District Judge of Morena, which at that time lay within Gwalior State, later becoming part of Madhya Bharat and thereafter a Part B State under the Constitution. The judgment‑debtor raised an objection, which resulted in the dismissal of the execution application on 29 December 1950. Subsequently, the High Court allowed the appellant's challenge to that dismissal order on 15 November 1954 and set aside the earlier decision. The Court noted that it was unnecessary to recite all the provisions of the Indian Code of Civil Procedure. It also observed that tracing the amendments to sections 43 and 44 had already been accomplished in Civil Appeal No. 24 of 1960.

The judgment‑debtor contended that the Court lacked authority to transfer the decree under section 38 to the Court at Morena. When the decree was transferred, the courts of Madhya Bharat operated under the Indian Code of Civil Procedure as amended by the Madhya Bharat Adaptation Order of 1948. However, the authority to transfer the decree by the Court at Bankura was derived from sections 38 and 39 of the Indian Code of Civil Procedure. According to the Code, a decree could be transferred only to a court established within British India, because the Code applied solely to territories that formed part of British India at that time. It was not until the coming into force of Act 11 of 1951 on 1 April 1951 that the Indian Code of Civil Procedure was extended to the territories of India. Consequently, the extended jurisdiction encompassed all the Parts A, B and C States within the Indian Union as defined by the Constitution. Thus, at the time of the transfer, the statutory provisions governing decree transfer could not be invoked against the Court at Morena.

The Indian Code of Civil Procedure was deemed to apply to the “Territories of India”, a term that at the relevant time included the jurisdictions known as Part A, Part B and Part C States. Counsel for the respondent, identified as Mr N S Bindra, contended that sections 38 and 39 of that Code authorised a decree to be sent for execution to any court, interpreting the word “court” in its ordinary sense as a place where justice is administered. To support this view, counsel relied on the decision in Manawala Goundan v. Kumarappa Reddy, where the term “court” in section 622 of the earlier Civil Procedure Code was explained as a place where justice is judicially administered. The cited case, however, dealt specifically with the question of whether a district registrar could be considered a court for the purposes of the Civil Procedure Code. The Court observed that the definition given in that earlier case did not assist in resolving the present issue, because the question before the Court was whether the Court at Morena, although it performed judicial functions, fell within the meaning of “court” as used in section 38. The Court reiterated that, for the purpose of the provision, “court” meant a court to which the Indian Code of Civil Procedure was applicable, and not simply any forum where justice is delivered. Likewise, at the relevant period, sections 40 and 42 of the Indian Code employed the term “court” to denote a court subject to the Indian Code, that is, a court located in the territories that were formerly part of British India, as reported in I. L. R. 30 Mad. 326. Since the court at Morena was not a court within the territorial sweep of the Indian Code, the decree could not be transferred to it under sections 38 and 39, rendering those provisions inapplicable to justify such a transfer.

The respondent further argued that the decree was enforceable under section 43 of the Indian Code of Civil Procedure, as amended by the Adaptation of Laws Order dated 5 June 1950, which was given retrospective effect from 26 January 1950. After the amendment, section 43 read: “Any decree passed – (a) by a Civil Court in Part B State, or (b) …, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner provided therein within the jurisdiction of any Court in the States.” Counsel suggested that the phrase “in a Part B State” should be read as if it said “in a Part A State”. The Court rejected this construction, emphasizing that statutory language must be given its plain meaning and that a court cannot alter the wording of a law to suit the case. Moreover, the Indian Code of Civil Procedure did not extend to Madhya Bharat until 1 April 1951, when Act 11 of 1951 came into force. Consequently, decrees issued by foreign courts, including those from the Gwalior Code under which the Morena court operated, could not be executed under section 43 of the Indian Code. The Gwalior Code, as applied to Morena, did not permit execution of foreign decrees either under section 233, which required a suit to be instituted on a specific basis, thereby precluding the execution of the decree in Morena.

The decree of the foreign court could not be executed under the Madhya Bharat Code of Civil Procedure, nor could it be executed under the provisions for foreign decrees contained in that code. Consequently, the decree was not enforceable in Morena under section 43 of the Indian Code of Civil Procedure.

The respondent then contended that the appellant firm was not a foreigner because it did not fall within the definition provided by the Foreigners Act, Act 31 of 1946, and they pointed to section 2(a)(iii) as amended by Act 38 of 1947 on 15 December 1947. However, that amendment of the Foreigners Act was held to be irrelevant for determining whether the decree was a foreign decree. The execution of decrees is governed exclusively by the Code of Civil Procedure, not by the Foreigners Act. Under the Code, a decree may be executed only by the court that originally passed the decree or by a court to which the decree is transferred for execution, and such a transfer is permissible only when the decree was passed under the Code and the receiving court is itself governed by the Indian Code of Civil Procedure.

In the present case, the decree was not transferred to a court that, at the time of transfer, was subject to the Indian Code of Civil Procedure. Accordingly, the transfer was ineffective for execution purposes. Moreover, section 43 of the Indian Code could not apply to the State of Madhya Bharat before the commencement of Act 11 of 1951. As these two points were decided against the respondent, further questions raised were deemed unnecessary.

The appeal was therefore allowed. The judgment and order of the High Court were set aside, and the order of the executing court was restored. The appellant was awarded costs, and the appeal was affirmed.