TRIVIKRAM Vs. VITHALRAO

JUDGEMENT

(1.) This first appeal which arises out of execution proceedings and is filed by the legal representatives of the original judgment-debtor has been placed before the Full Bench because Vaidya J., who heard the appeal, found that a Full Bench decision of this Court in Bhagwan Shan-kar v. Rajaram Bapu, (1951) 53 Bom LR 398, may not be good law in view of the decision of the Supreme Court in Moloji Nar Singh Rao v. Shankar Saran, AIR 1982 SC 1737 and since he further found that the Full Bench decision in Bhagwan Shankar's case was cited with approval by the Supreme Court in Narhari v. Pannalal.

(2.) As we shall presently point out, the question involved in the appeal which necessitated the reference to the Full Bench relates to the executability of the decree passed by the Bombay High Court on its Original Side against a judgment debtor who was then resident in the erstwhile State of Hyderabad and who had not submitted to the jurisdiction of the Bombay High Court in the suit, though a summons was served on the defendant, especially in the context of the fact that the place where the judgment-debtor originally lived was then within the erstwhile State of Hyderabad and is now within the jurisdiction of the Bombay High Court since it is now a part of the newly constituted State of Bombay. After a prolonged hearing on the questions raised in this appeal, we found that the appeal itself can be disposed of on the question of limitation. We therefore decided to hear the appeal and not restrict the hearing only to the question which, according to the learned single Judge, needed a decision by a larger Bench. It is now necessary to briefly state the facts which have given rise to this appeal.

(3.) The original judgment-debtor was one Bhagwant Laxman Thiglay against whom the plaintiff-decree-holder, who is now represented by his legal representatives, filed original suit No, 1766 of 1938 on the Original. Side of the Bombay High Court. The defendant Bhagwant was a non-resident and was then residing in the erstwhile princely State of Hyderabad. An ex parte decree for Rs. 10,000/- and odd came to be passed against the defendant on 14th Dec. 1938, Founded on this decision of the High Court, the decree-holder filed a suit in the Court of the Province Sadar Adalat, Aurangabad, being suit No. 4 of 1354 Fasli. This suit came to be dismissed by the Sadar Adalat Court on two grounds. The Sadar Adalat Court took the view that the decree of the foreign court, that is, Bombay High Court was not a decree of a competent court as contemplated by Section 8 Civil P. C. then In force in Hyderabad, which provision corresponded to Section 13 Civil P. C. 1908, It appears from the Judgment of the Court that the plaintiff-decree-holder had also asked for a decree on the basis of the original transaction between the parties and the Court took the view that limitation for the suit would commence from the date of the original transaction and that the suit was, therefore, barred by time. The suit was thus dismissed.