1956 (2) TMI 83 - HC - Indian Laws

Summary

Issues Involved:
1. Non-applicability of Section 44-A, Civil Procedure Code (C.P.C.) due to Burma's independence.
2. Barred by Limitation under Section 48, C.P.C.
3. Continuation of Execution Petition E.P. No. 134 of 1950 as a continuation of E.P. No. 173 of 1944.
4. Jurisdiction of the Devakottah Sub-Court to execute the decree.

Issue-wise Detailed Analysis:

1. Non-applicability of Section 44-A, Civil Procedure Code (C.P.C.) due to Burma's independence:
The main question raised was whether Section 44-A, C.P.C. applied to the proceedings given Burma's declaration as an Independent Sovereign Republic on 4-1-1948. The Court noted that Burma's independence altered the legal landscape, making it a foreign country in relation to India. Consequently, the provisions of Section 44-A, C.P.C., which allowed for the execution of decrees from reciprocating territories, no longer applied. The Court highlighted that with the cancellation of the notification declaring Burma a reciprocating territory effective from 4-1-1948, Section 44-A was inapplicable, and the decree from the Burmese Court could no longer be executed in India.

2. Barred by Limitation under Section 48, C.P.C.:
The appellant contended that the execution petition was barred by limitation under Section 48, C.P.C. The Court examined the timeline of the execution proceedings and concluded that the execution petition E.P. No. 134 of 1950 was not barred by limitation. The Subordinate Judge had correctly formulated the points for consideration and determined that the execution was within the permissible time frame.

3. Continuation of Execution Petition E.P. No. 134 of 1950 as a continuation of E.P. No. 173 of 1944:
The appellant argued that E.P. No. 134 of 1950 could not be treated as a continuation of E.P. No. 173 of 1944, which was struck off on 28-3-1947. The Court held that if E.P. No. 173 of 1944 was not finally disposed of but merely struck off for statistical purposes, then E.P. No. 134 of 1950 could be seen as a reminder to bring back the record for further proceedings. However, the Court ultimately concluded that E.P. No. 134 of 1950 could not be treated as a continuation of E.P. No. 173 of 1944 due to the cessation of reciprocal arrangements between India and Burma.

4. Jurisdiction of the Devakottah Sub-Court to execute the decree:
The Court examined whether the Devakottah Sub-Court had jurisdiction to execute the decree from the Rangoon High Court. The Court concluded that the Sub-Court had no jurisdiction to execute the decree post-4-1-1948, as Burma was no longer a reciprocating territory. The Court referenced various legal principles and precedents, emphasizing that the relevant date for determining the nature of the decree was the date of execution, not the date of filing the execution petition.

Conclusion:
The Court held that E.P. No. 134 of 1950 was not maintainable, reversing the lower Court's decision and dismissing the execution petition with costs. Additionally, C.M.A. No. 352 of 1951 was dismissed as barred by limitation, and App. Nos. 908 and 909 of 1952 were dismissed with half costs, upholding the claim orders. C.M.A. No. 177 of 1952 was allowed without costs, consistent with the judgment in C.M.A. No. 85 of 1951.