TaxTMI 
TaxTMI 
1983 (4) TMI 303
X X X X Extracts X X X X
X X X X Extracts X X X X
....d whether the execution petition filed by the decree-holder can be said to have abated under S. 4(c) of the Act. Ratnavel Pandian. J. held in the negative on the around that the cause of action arose outside the State of Tamil' Nadu. 2. To appreciate the question of law that falls for decision, it is necessary to state a few facts. The debtor-debtor is the revision Petitioner. The respondent is the a signee decree-holder. The original decree-holder obtained a decree against the Petitioner in A.S. 89 of 1967 on the file of the City Civil court. Bombay and had that decree transferred to the file of the Sub. Court. ChinaleDut. for the purpose of executional. The revision Petitioner filed E. A. 32 of 1981 and claimed the benefits of the Act and Prayed that the execution Petition should be dismissed as having abated. The execution court held that since the decree has been Passed by the City Civil Court Bombay the Provisions of the Act would not apply in view of this finding the executing Court did not consider the question whether the revision Petitioner was a debtor within the meaning of the Act. 3. Before we consider the contention' of Mr. Raahavan it is necessary to ref....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te. It is clear that it enacts a substantive provision of law. 4. The contention of Mr. Raghavan the learned counsel for the petitioner is that the definition of the debt does not make distinction between a debt incurred within the State of Tamil Nadu and outside and also 'between a debt decreed by a court within the State of Tamil Nadu or outside. Further. according to the learned counsel the definition of debtor only refers to a person from whom any debt is due and no emphasis is made on the person to whom it is due. It is the submission of Mr. Raghavan that all laws are territorial and consequently that Act will be applicable to all debtors within the State of Tamil Nadu from whom a debt is due. 5. As rightly pointed out by Mr. Raahavan all legislations are territorial in Operation Art. 215 of the Constitution which adumbrate this principle states- (1) Subject to the provisions of this Constitution. Parliament may make laws for the whole or any Dart of the territory of India and the legislature of a State may make laws for the whole or any Dart of the State: (2) No law made by Parliament shall be deemed to be invalid on the around that it would have e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e against the legal representative of the deceased debtor-debtor under S. 50: (c) Dower to order attachment of a decree. (3) A court passing an order In exercise of the powers specified in sub-section (2) shall send a copy thereof to the court which Passed the decree." 8. Thus. it is clear that Ss. 40 and 42 of the Civil P, C. are procedural and do not deal with substantive law. 'In such manner as may be prescribed by rules in force' in that State' occurring in Section 40. C.P.C. refers to the procedure under which the execution should be had and not to the right of execution. Similarly the Dower that is conferred on the transferee court under S. 42. C.P.C. is the Dower for the purpose of execution of the decree. It should be remembered that not with standing the transfer of the decree to another court for execution the transfers court retains control over the decree. For instance. S. 46 entitles the court passing a decree to issue a percent to any other court corn Detente to execute the decree-to attach any property belonging to' the judgment-debtor which the latter court is bound to obey. S. 41 requires the Court to which a decree's transm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....udgment is recorded." What then is a judgment debt? The judgment debt is the result of a contract entered into between the debtor and the creditor inside the State e.g.. in this case in Bombay outside the State of Tamil Nadu. How such a contract the debt resulting there from and the decree evidencing the debt can be solved is a matter of substantive law. What will be the substantive law that ought to be applied in such cases will have to be determined by the application of the Principles of Private International Law, Dicey in his 'Conflict' of Laws' 10th Edn. states in Rule 146 at D. 775- "The formation of a contract is governed by that law which would be the Drover Jaw of the contract if the contract was validly concluded." In Rule 145 at D. 747 it is stated. "The term 'proper law of a contract' means the system of law by which the Parties intended the contract to be governed or. where their intention is neither expressed nor to be inferred from the circumstances. the system of law with which the transaction has its element and most real connection. Dicey has further observed as follows at v. 748- "Subject to a number of exce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....law may be enforced in England though by the lex loci solutions it would have been discharged. The law of the' Place where the Promissory or debtor resides or carries on business is not as such reliever to the issue. A- contractual debt may and normally will. be regarded as 'situate' at the debtor's Place of residence but the discharge of a debt. whether by performance or through other events. is a matter subject riot to the lex situs of the debt but to the proper law of the contract from which it arises. The court shave allied this Principle in many cases in which it was alleged that a contractual liability had been discharged by legislation. The Dower of legislation to effect a contract by modifying or annulling some term thereof is a Question of discharge of the contract. which in general is governed by the proper law . . .Conversely. a debtor is not entitled to rely as a discharge of his debt. on legislation which is enacted in the country of the locus solutions but not in that of the proper law. Nor can he for this purpose rely on the legislation of a country it' which he resides or carries on business of which he is a national if the contract is governed b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Court, the court - passing the decree has a' large measure of control over the execution. Besides. to hold that the court executing the decree may app1y a rule of limitation differing from that applicable to . a decree of the court transmitting it when the latter itself is executing it would lead to anomalous consequences." In Ranganadham v. Ponnachararna, AIR 1942 Pat 128. a Bench of the Patna High Court held: "Section 42 deals with the manner of execution and leaves the matter of limitation to be governed by the Limitation Act. When a decree Passed by one court is sent to another court for execution the period of limitation applicable to the execution of the decree depends on the character of the court which passed the decree and not on the character of the court executing it." 12. In Inderchane Kairiwal v. BanoroDan Sahu. AIR 1948 Pat 245 a decree was obtained on the or', - al side of the Calcutta High Court a it was transferred for execution to the Shehabad Court in the Province of Bihar. In execution proceedings the judgement debtor raised an objection that the property sought to be proceeded against should be valued under the provisions of the Bihar Mon....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in accordance with the substantive law obtained in the court which passed the decree that is to say the transfers court. That being so. it must be held that the Bengal Act X of 1940 which regulates the transactions of money lending in Bengal. must be referred to in order to determine the rights and liabilities of the Parties before us." 13. In Basheer Ahamed v. Padmanabha, AIR 1953 Mys. 37, a decree passed by the Madras High Court was transferred to 'the Court of the district Judge. Bangalore for execution. The Judgement debtor raised an objection Pleading that he was an agriculturist within the meaning of S. 2 of the Mysore Agriculturists Relief Act: that he should therefore be Permitted to Day the decree amount by annual installments as provided by S. 12, Agriculturists Relief Act and that his immovable Properties could not be attached or sold except, under conditions contained in S. 14 of that Act. Thus he wanted his status as an agriculturist to be determined before execution was Proceeded with. The 'District Judge overruled the objections holding that -the transferee executing court cannot consider the questions and the judgment debtor appealed to the High Court. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng court in relation to the procedure to be followed -and not in relation to the substantive law applicable in execution of the said decree go, therefore, the provisions of Ss. 40 and 42. C. P. C. it re purely Procedural. laying down only the adjective law for the execution of the decree and cannot therefore regulate the substantive rights and liabilities of the concerned varies which were settled and determined with the court which transferred the decree in accordance with the substantive law in force in that State and as such cannot again be subjected to and /or regulated by the law of the State to which the decree is sent only for execution". To sum up, the legal position is this, The discharge of a decree debt will have to be determined by the law of the State where the contract arises resulting in the creation of the debt and where it gets ripened into a judgment or a decree debt In I not by the law governing the place where it sent for execution. The transferee court under S. 42. C.P.C, has the Dowers of the transfers court only for the limited purpose of execution in respect of which the law of that court will apply. The law which determines the question. whether a rudime....