Veerappan Chettiar v. Cholachi Achi — 1966 DIGILAW 123 (KER)

Judgment :- 1. These appeals are against the same order passed in execution of the decree in O. S. No. 81 of 1096 of the Additional District Court of Quilon. A. S. No. 537 of 1962 is by defendants 29 and 30, the legal representatives of the 4th defendant, and A. S. No. 23 is by the additional plaintiff and the 27th defendant. 2. The order from which these appeals are taken, disposed of certain execution applications filed by certain defendants in the case; E. P. Nos. 142 and 148 of 1950 by the second defendant, E. P. No. 184 of 1952 by defendants 24 to 26 and E. P. No. 97 of 1953 by the 27th defendant. 3. The question arising in these appeals can be formulated under the five heads. Out of these four are common to the two appeals, A. S. Nos. 23 and 537. Apart from these five points there was a larger point taken and this related to the question whether there is an executable decree in the case. We shall deal with this point first. 4. The argument of counsel appearing in the two appeals is that the High Court decree passed in A.S. No. 7 of 1112 of the Travancore High Court is only a preliminary decree. This was sought to be substantiated both on a reading of the decree as well as the judgment in the case. We have perused the judgment as well as the decree. It is no doubt true that certain matters had to be settled pursuant to the decree. But it is not at all clear that the High Court meant that a final decree should follow. On the basis of the principles settled by the High Court the rights of the contesting parties will have to be worked out. This involved the making of certain calculations according to the directions given by the High Court. At no time during the long pendency of this litigation after the passing of the High Court decree it has been suggested that there is no executable decree. In fact the case came up before us in 1962 in the form of an appeal from an order in execution in A. S. No. 139 of 1958. At no time during the long pendency of this litigation after the passing of the High Court decree it has been suggested that there is no executable decree. In fact the case came up before us in 1962 in the form of an appeal from an order in execution in A. S. No. 139 of 1958. It was then agreed by the parties that the points arising for determination are those mentioned in the appendix to the judgment in A. S. No. 139 of 1958. That statement was signed by counsel appearing for the parties represented then before us. On the basis of such an agreement we directed the determination of the points appended to the judgment in execution. The order now appealed against purports to deal with those questions. There was no point raised at the time A. S. No. 139 of 1958 was beard that there was any matter which should be settled on the trial side before the decree of the High Court in A. S. No. 7 of 1112 could be executed. It is now too late to raise such a point and we feel that there is no illegality and that there is no impediment in the matters now remaining to be settled being settled in execution proceedings. We therefore negative this contention. 5. Further points arising for determination can be grouped under the following five heads. (1) The application made by the second defendant in E. P. No. 148 of 1950 has been filed by him on the basis of an order appointing him as receiver, passed by the Sivaganga Sub Court in O. S. No. 74 of 1923. That Sub Court is a foreign court and on the basis of the order passed by that foreign court, it is urged that the second defendant is not entitled to execute the decree in this case. (2) The execution application E. P. No. 142 of 1950 has been filed by the second defendant on his behalf as well as on behalf of defendants 1 and 3. This application is not maintainable because defendant 1 had transferred his interest in the decree in favour of the plaintiff and defendant 3 his interest in favour of the 27th defendant. (3) E. P. No. 81 of 1962 had been filed by the plaintiff for executing the decree on plaintiff's favour. This application is not maintainable because defendant 1 had transferred his interest in the decree in favour of the plaintiff and defendant 3 his interest in favour of the 27th defendant. (3) E. P. No. 81 of 1962 had been filed by the plaintiff for executing the decree on plaintiff's favour. The plaintiff after the order under appeal was passed filed a memo in court on 6th October 1962 reading as follows: and prayed that execution need not be proceeded with then. The court after recording the memo on 6th October 1962 passed another order on the same day on E. P. No. 81 of 1962 to the effect 'dismissed' and this order, it is urged, is merely an administrative order and it has not judicially disposed of the execution petition, and in view of the questions raised in these appeals it is requested that it may be made clear that in the event of this case being remitted back for farther investigation, the execution petition, 81 of 1962 filed by the plaintiff may be directed to be dealt with afresh disregarding the dismissal order passed on 6th October 1962. 6. The court below in its order in Para.21 has proceeded on the basis that second defendant alone had filed statement showing the exact amount payable to the second defendant and had given the details on the basis of which that amount was claimed. This is a clear error. Two statements have been filed, one by the legal representatives of the 7th defendant in E. P. No. 184 of 1950, and another by 27th defendant in E. P. No. 97. There is it is submitted a more serious error committed by the court below and that is the assumption made that the advocate appearing in the case submitted before the court that the statement No. 2 filed by the 2nd defendant referred to in the order under appeal 'may be taken as the correct statement'. It is urged that disregarding the erroneous assumption a fresh investigation of the amounts due to the parties be directed. 7. There is only one point that arises in A. S. No. 537 alone and that relates to interest. It is urged on the basis of the Full Bench decision of this Court in Subramonia Iyer v. Gopala Pillai 1966 KLT. 7. There is only one point that arises in A. S. No. 537 alone and that relates to interest. It is urged on the basis of the Full Bench decision of this Court in Subramonia Iyer v. Gopala Pillai 1966 KLT. 301 that by virtue of S.31(3) of the Travancore Civil Procedure Code no court shall allow in its decree a higher rate of interest than nine per cent per annum adjudged as interest after suit and the interest so decreed should in no case exceed the aggregate sum adjudged. We shall deal with this point later but shall now proceed to discuss the first question formulated above as to whether the Execution Petition No. 148 of 1950 moved by the second defendant in the case is maintainable. 8. It is admitted that the second defendant has been appointed as a receiver by the Sivaganga Sub Court in O. S. No. 74 of 1923. That was a suit instituted by the second defendant against the plaintiff for money. The receiver has been appointed to execute the decree obtained by the plaintiff in this case. The question is whether such appointment will entitle the second defendant to execute that part of the decree in this case which is in favour of the plaintiff. There can be no doubt that as long as the property relating to which the receiver is appointed is within the jurisdiction of the court, the court has full power to appoint a receiver. Even in regard to the property out of its jurisdiction, the law is that a court can appoint a receiver. A passage from the decision in Maudslay v. Maudlay, Sons and Field (1900) 1 Chancery 602 is apt: "This power, I apprehend, is based upon the doctrine that the Court acts in personam. The court does not, and cannot attempt by its order to put its own officer in possession of foreign property, but it treats as guilty of contempt any party to the action in which the order is made who prevents the necessary steps being take to enable its officer to take possession according to the laws of the foreign country." S. 51 of the Civil Procedure Code in Part II thereof, relating to 'execution', specifically provides that the court may order execution of the decree by appointing a receiver. S.146 of the Civil Procedure Code enacts that "146. S.146 of the Civil Procedure Code enacts that "146. Proceedings by or against representatives. Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him." Relying on the section the Supreme Court held that the receiver appointed in a case can claim to execute the decree on behalf of the decree-holder. Reference may be made to Para.37 and 38 of the judgment of the Supreme Court in Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR. 1955 S. C. 376. Their Lordships further observed that R.16 of Order XXI does not make S.146 inapplicable because of the wording in S.146 'save as otherwise provided in this Code'. 9. The only question therefore is whether the position is different when the order appointing the receiver has been passed by a foreign court. We do not think so. The Bombay High Court in Chandulal Madhaval v. Maneklal Lalluram AIR. 1931 Bombay 251 has taken the view that a receiver appointed by a foreign court can execute the decree. This was taken in a case the facts of which disclosed that the two areas concerned had made reciprocal arrangements for the execution of decrees passed in each of the area of the other. This is so in this case as well. We therefore negative the contention that Execution Petition No. 148 moved by the second defendant is unsustainable. 10. The second point that Execution Petition No. 142 moved by the second defendant to execute the first decree passed in favour of defendants 1 to 3 cannot be sustained. This unsustainability, it is suggested, is due to the transfer of the first defendant's interest in favour of the plaintiff and because of the passing of the decree in O. S. No. 73 of 1937. The assignment relied on is Ext. P-1. This was before the date of the trial court decree in the case and cannot operate to transfer the decree. The decree in O. S. No. 73 of 1937 was passed in a suit for partition instituted by the third defendant herein. The assignment relied on is Ext. P-1. This was before the date of the trial court decree in the case and cannot operate to transfer the decree. The decree in O. S. No. 73 of 1937 was passed in a suit for partition instituted by the third defendant herein. It appears to us that the effect of the decree is that the first defendant's interest in this decree has devolved on the plaintiff. But this cannot operate as an adjustment of the decree for this has not been certified. What is now really urged is that the decree in the case jointy in favour of defendants 1 to 3 has been partly satisfied. In order that there may be such an adjustment as far as the execution court is concerned, R.2 of Order XXI will have to be satisfied. It is not suggested that there has been any certification of this adjustment as required by that rule. In the absence of certification we do not think we will be justified in considering the question on the merits. We make it clear that this order relating to this matter is purely based on R.2 of Order XXI and cannot conclude the parties in regard to their respective rights which should be worked out in appropriate proceedings. We negative this contention as well. 11. The third contention relates to the question as to whether the Execution Petition No. 81 of 1962 is still pending. It is urged on behalf of the respondents that this matter does not arise in these appeals. It appears to be so, for there is no appeal against that order passed on 6th October 1962 on Execution Petition No 81. But we cannot ignore the fact that in the memorandum dated 6th October 1962 moved by the plaintiff in the execution court on 6th October 1962 reference has been made to this appeal now pending before us and the prayer was that the fact may be recorded and that the further proceedings pursuant to E. P. No. 81 of 1962 be deferred. The first part of the prayer has been accepted and the memorandum has been recorded. Any further action against the terms of that memorandum can only be of a ministerial nature and must be for administrative purposes and cannot prevent the execution petition being dealt with afresh. 12. The first part of the prayer has been accepted and the memorandum has been recorded. Any further action against the terms of that memorandum can only be of a ministerial nature and must be for administrative purposes and cannot prevent the execution petition being dealt with afresh. 12. The only remaining point which is common to both appeals pertains to the acceptance of the second statement filed by the second defendant in support of the Execution Petitions Nos. 142 and 148. Counsel appearing for the two appellants have pointed out before us that the assertion in the order under appeal 'none of the party has filed any written objection to this statement' is clearly erroneous. This is so. Our attention has been drawn to two statements, one filed by the legal representatives of 7th defendant who moved Execution Petition No. 184 and the other filed by the 27th defendant who moved Execution Petition No. 97. The court below has therefore proceeded on a clearly erroneous assumption. It is on this assumption that it proceeded to state: "....at the time of the argument it was stated by all the other Advocates, that Statement No. 2 may be taken and accepted as a correct Statement." Counsels who appeared before the Execution Court have been appearing before us in these appeals, though along with others, and they have stated before us that they have not made any statement accepting the correctness of the statement filed by the second defendant. Though the normal rule is that the statement made by a court should be accepted by an appellate court and that the proper remedy, if the statement is an incorrect one, is to seek a review of the decision of the court which made the wrong statement, we do not think that it is an invariable rule. The circumstances of this case, we think, justify the adoption of a different course because of the clear and admittedly wrong assumption on the basis of which the court below proceeded to make the observation that is now challenged to be wrong. This assumption is that there were no other statements at all filed by any other party. The second defendant's statement cannot therefore be accepted without scrutiny and without hearing the objections of those who had themselves filed statements and without comparing those statements with that filed by the second defendant. We accept this contention. 13. This assumption is that there were no other statements at all filed by any other party. The second defendant's statement cannot therefore be accepted without scrutiny and without hearing the objections of those who had themselves filed statements and without comparing those statements with that filed by the second defendant. We accept this contention. 13. The only other point to be dealt with pertains to the one in A. S. No. 537 and relates to the question of interest after decree. In view of the decision of this Court in Subramania Iyer v. Gopala Pillai 1966 KLT. 301 we accept the argument and hold that interest can be claimed after decree only to the extent of the principal sum adjudged. 14. In the result, we allow the appeal A. S. No. 537 of 1962 on the question of interest. We set aside the order of the court below except to the extent to which we have agreed with the conclusions reached by the court below and direct a de novo enquiry of the question of the amounts due to the party under the decree after affording opportunities to all the parties to state their case. A fresh order will be passed after such enquiry. If any motion is made before the court by the plaintiff relating to the continuation of the Execution Petition No. 81 of 1962 that should be dealt with by that court in the light of the observations made earlier notwithstanding the order 'dismissed' passed on 6th October 1962. 15. We dispose of the appeal on the above terms. There will be no order as to costs.