V.S. SUBRAMANIA IYER Vs. V.V. RAMASAMI PILLAI

JUDGEMENT

(1.) THESE are two connected appeals and the only question that arises in both the appeals is whether the plaintiff would be entitled to the declaration asked for. On 19 -4 -1936 one T. N. S. Chockalingam Chetty executed a promissory note in favour of the defendant V. S. Subramania Ayyar for a sum of Rs. 31,500 and deposited with him the title deeds of three sets of properties by way of equitable mortgage. The properties so comprised in the equitable mortgage consist of 10 items of Chochaligam Chetty's own properties in Madras, two items in Madras in regard to which he had only mortgage interest and his mortgage interest in some properties situated in Karaikkal in the French territory. The said properties situated in Karaikkal were mortgaged by the plaintiff's father Vythilingam Pillai to Chockalingam Chetty by a deed of the year 1025. Subramania Ayyar filed O. S. 63 of 1939 on the file of the Court of the Subordinate Judge of Sivaganga to enforce the equitable mortgage and in that suit he sought to enforce his mortgage against the properties situated in India. Neither Vythi -lingam Pillai was made a party, nor his properties in Karaikkal were the subject -matter of that suit. Indeed the mortgagee could not enforce the rights against those properties as they were situated in a foreign country, Subramania Ayyar obtained a preliminary decree, Exhibit P -1 dated 10 -10 -1939 for recovery of a sum of Rs. 40,000 and obtained a final decree, Ex. P -2 dated 14 -7 -1940. In execution of the final decree he filed E. P. No. 147 of 1940, Ex. D -1, and brought the properties in British India to sale. In the sale about Rs. 7000 was realised and part satisfaction of the decree was recorded.

(2.) AS the bulk of the properties mortgaged to Subramania Ayyar were in Karaikkal and as the amount due under the mortgage was not realised he took out appropriate proceedings in April 1941 in the French territory of Karaikkal, He followed the procedure obtaining in the French territory and appraised the plaintiff, Ramaswami Pillai, the son and the legal representative of Vythilingam Pillai by an 'Arikai' of his claim against defendant 1. The plaintiff totally denied his liability. Thereupon the defendant filed a suit against Chockalingam Chetty on the file of the Court of the Justice of Peace with exhaustive powers of Karaikkal on 24 -4 -1941 and obtained a decree against him on 8 -8 -1941. The plaintiff was appraised by an 'Arikai' of the institution of the suit and of the passing of the decree. After the obtaining of the decree appropriate proceedings were taken out in the French Court at Karaikkal against the plaintiff herein for the recovery of the amount from him. On 16 -4 -1942 an order was passed by the French Court at Karaikkal directing the plaintiff to pay a sum of Rs. 46,324 -3 -0 with interest and costs to the defendant. The plaintiff questioned the validity of the order passed against him and also denied his liability to pay any amount to Chockalingam Chettiar. His objections were negatived and his liability to Chockalingam Chetty was fixed at about a sum of ES. 81,000 with interest. The plaintiff preferred an appeal against that order to the High Court of Justice of the French Republic of Pondicherry. We are informed that the appeal was since dismissed and an appeal is taken against the judgment to the appellate Court in Paris.

(3.) ON 27 -4 -1945 Ramaswami Pillai filed E. A. No. 249 of 1945 in O. S. 63 of 1939 on the file of the Court of the Subordinate Judge of Sivaganga under Order 47 and Section 151, Civil P. C. praying for an order declaring that the plaintiff was not entitled to proceed against the other properties of defendant l in the petitioner's hands either in British India or in the French territory of Karaikkal. That application was dismissed by the learned Subordinate Judge, Mr. R. Ganapathi Ayyar, on 25 -9 -1945 on the ground that the application was not maintainable and also on the ground that it was not a fit case for the exercise of his discretion. The learned Subordinate Judge gave convincing reasons for rejecting the prayer for a declaration. He says : 'Secondly I do not see how I can help the petitioner. He wants some declaration from me as to the law obtaining in British India. He wants me to say that the decree -holder cannot proceed against the properties of the judgment -debtor other than the hypotheca without first obtaining a personal decree. But I do not see why I should grant such a bare declaration when it has no reference to any proceedings pending before me. If the petitioner's object is to prove before the French Courts the law obtaining in British India he would have to prove it there in the manner provided by the law binding on the French Courts. In the statement of the ease which petitioner has filed before me he has stated that the decree -holder has obtained a decree against the judgment -debtor even in the French Court. It is represented on behalf of the respondent that he has attached petitioner's properties only in execution of that decree. If so I do not see how any declaration which I may give would help the petitioner. If he has any representation to make or defence to urge in the proceedings taken by the decree -holder in the French Courts the proper Court to deal with it will be the French Court and not this Court. I see no ground for granting the declaration which the petitioner prays for.' Ramaswami Pillai preferred the above C. M. A. No. 677 of 1945 against this order of the learned Subordinate Judge.