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Civil Miscellaneous Petition No. 346 of 1951, decided on 3rd November, 1952 under section 13 (4) and (5) of the. High Courts (Punjab) Order, 1947.
(Regular First Appeal No. 302 of 1946, decided by Eric Weston, Chief Justice and Justice Khosla, of the High Court of Judicature for the State of Punjab at Simla, on the 31st October, 1950).
Art. 13 (5)‑Order of East Punjab High Court registered as an order of Lahore High Court‑Execution‑Forum‑Civil Procedure Code (V of 1908), S. 151.
The intention of Art. 13, clause (5) of the Order is clear. The order of the East Punjab High Court is to be treated as an order of this Court for all purposes and if the order of the East Punjab High Court could be executed the order of this Court should also be executable. The only question to be decided is, which Court should execute it here There is no provision for such a case in the Code of Civil Procedure. The definition of the expression "Court which passed a decree" in section 37 is not exhaustive. It merely includes certain Courts but does not neces sarily exclude other Courts which were net in contemplation. The present situation suggests a very easy resort to the provisions of section 151 of the Code which gives the Court inherent power to make such orders as may be necessary for the ends of justice. A decree or an order of the Lahore High Court must be executed by one of the Courts subordinate to it and if the defendants are in Lahore a Court in Lahore should be entrusted with execution.
Art. 4‑--Execution proceedings taken out in East Punjab Court No bar to execution of decree in a Court subordinate to Lahore High Court after such decree has been registered as a decree of Lahore High Court.
Article 4 of the Indian Independence (Legal Proceedings) Order, 1947 does not interfere with the working of the High Courts (Punjab) Order, 1947 and merely enables the decree‑holder to take out execution in both the Provinces. If the decree‑holder had not applied for execution at Amritsar, there is no doubt that lie could ask the Lahore High Court to treat the judgment of the East Punjab High Court as a judgment of that Court, and there is nothing it the language of Art. 4 of the Indian Independence (Legal Proceedings) Order to suggest that if execution has already been taken up it would make a difference to the judgment of the East Punjab High Court or the provisions of the High Courts (Punjab) Order.
S. 145‑Sureties need not be parties to proceedings until execution is taken out against them.
Where sureties were proceeded against merely under provisions of section 145 of the Code, held, that that section did not require them to be parties at any stage until execution was taken against them.
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Not ultra vires the Governor‑General.
M. Muhammad Shafi for Petitioner.
Muhammad Ismail Bhatti for Respondents Nos. 5 and 6.
Khawaja Abdur Rahim for remaining Respondents except Nos. 1 and 2.
Muhammad Ishaq Khan filed a suit for damages against the Azad Sharma Transport Company of Amritsar and other defendants is 1945 in an Amritsar Court and simultaneously applied for attachment before judgment, with the result that certain monies lying in a bank belonging to the Azad Sharma Transport Company were attached. Against this order, the company appealed to the High Court which directed that the order of attachment should be withdrawn subject to security being furnished for payment of Rs. 10,000. In pursuance of this order, respondents Nos. 3 to 6 became sureties.
The suit resulted in a decree for Rs. 20,000, and the decree -holder applied for execution in the Amritsar Court. The judgment debtor filed an appeal in the Lahore High Court in 1946 and, pending the hearing of the appeal, the High Court stayed execution subject to security being furnished by Mistri Ahmad Din, respondent No. 7, another person, a Sikh, for Rs. 10,000. The decree‑holder objected to this order on notice being given to him and on the 2nd of July 1947, the previous order was modified to this extent: The appellants were to deposit Rs. 8,000, in the executing Court at Amritsar and furnish security as to the balance, the costs and future interest. Security was consequently furnished by Ahmad Din, respondent No. 7.
Respondent No. 2 is the District Transport Co‑operative Society Ltd. of Amritsar, which replaced the Azad Sharma Transport Company of which respondents Nos. 3 to 7 are alleged by the decree‑holder to be shareholders.
After the Partition, the appeal pending in the Lahore High Court, relating as it did to a place within the jurisdiction of the East Punjab High Court, was transferred to that High Court under the provisions of the High Courts (Punjab) Order, 1947, Article 13, clause (3). The East Punjab High Court modified the decree by reducing the decretal amount to Rs. 17,000.
The present application for execution has been made in this Court by the decree‑holder against the sureties under clauses (5) and (6) of Article 13 of the High Courts (Punjab) Order. Under clause (5) any order made by the High Court of East Punjab in proceedings transferred to that High Court by virtue of Art. 13 shall for all purposes have effect not only as an order of that Court but as an order made by the High Court at Lahore. Under clause (6) where such order has been varied in appeal, effect shall be given to the decision of the appellate Court as if the order were an order of the High Court at Lahore.
It was objected for the respondents that execution could not proceed for several reasons. One reason was that under Order 21, rule 10, C. P. C., the holder of a decree is required to apply to the Court which passed the decree and under section 37 the expression "Court which passed a decree" has been defined to include "(a) where the decree to be executed has been passed in the, exercise of appellate jurisdiction, the Court of first instance, and (b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit." Now, since the East Punjab High Court has merely varied the decree of the Amritsar Court, it cannot be said to be a decree passed in the exercise of appellate jurisdiction within the meaning of clause (a), but even if it were, the Court which passed the decree would be the Court of first instance and since that Court, namely, the Court of the Sub‑Judge at Amritsar has neither ceased to exist nor ceased to have jurisdiction to execute the decree, there is no parallel Court under the jurisdiction of the Lahore High Court which can be said to correspond to the Court at Amritsar so that a suit could be instituted in it if the cause of action arose now. There is a good deal to be said for this argument, but nothing mandatory can be said for the further contention that all that the High Courts (Punjab) Order, 1947, enables the petitioner to do is to get the order of the East Punjab High Court registered as an order of the Lahore High Court and derive from it mere metaphysical satisfaction. The intention of Article 13, clause (5) of the Order is clear. The order of the East Punjab High Court is to be treated as an order of this Court for all purposes if the order of the East Punjab High Court could be executed the order of this Court should also be executable. The only question to be decided is, which Court should execute it here There is no provision for such a case in the Code of Civil Procedure. The definition of the expression "Court which passed a decree" in section 37 is not exhaustive It merely includes certain Court but does not necessarily exclude other Courts which were not in contemplation. The present situation suggests a very easy resort to the provisions of section 151 of the Code which gives the Court inherent power to make such orders as may be necessary for the ends of justice. A decree or an order of the Lahore High Court must be executed by one of the Courts subordinate to it and if the defendants are in Lahore a Court in Lahore should be entrusted with execution.
Another objection was that under Article 4 of the Indian Independence (Legal Proceeding) Order, 1947, all proceedings pending immediately before the Partition in any civil or criminal Court other than a High Court in the Punjab were to be continued in that Court not withstanding that two new Provinces have been created and it was argued that since the petitioner had originally applied for execution in the Amritsar Court, that proceeding was still pending and ought to be pursued. This provision, however, does not interfere with the working of the High Courts (Punjab) Order and merely enables the decree‑holder to take out execution in both the Provinces. If the decree holder had not applied for execution at Amritsar, there is no doubt that he could ask us to treat the judgment of the East Punjab High Court as a judgment of this Court and there is nothing in the language of Article 4 of the Indian Independence (Legal Proceedings) Order to suggest that if execution has already been taken up, it would make a difference to the judgment of the East Punjab High Court or to the provisions of the High Courts (Punjab) Order.
Next, it was argued that since the present respondents were not parties to the litigation in East Punjab, it was unjust that any proceedings should be taken against them. It is overlooked, however, that the respondents could n it be made parties to the proceedings in Amritsar or Simla because they were merely sureties. They have been proceeded against merely under the provisions of section 145 of the Code which does not require them to be parties at any stage until execution is taken against them.
Finally, it was argued that the provision of the High Court (Punjab) Order on which the petitioner relied was ultra vires. The Order in question was made under section 9 of the Indian Independence Act, which so far as relevant is as follows:
"The Governor‑General shall by order make such provision as appears to him to be necessary or expedient
(a) for bringing the provisions of the Act into effective operation;
(d) for removing difficulties arising in connection with the transition to the provisions of this Act; and (i) so far as it appears necessary or expedient in connection with any of the matters aforesaid, for varying the constitution powers or jurisdiction of any Legislature, Court or other authority in the new Dominions and creating new Legislatures, Court or other authorities therein."
Now, the Independence Act provided for the creation of two new Provinces, East Punjab and West Punjab, and since the High Court at Lahore could serve the needs of West Punjab only it was necessary to create another High Court for East Punjab. The High Courts (Punjab) Order was, therefore, necessary to enable the Governor‑General to bring the provisions of the Act into effective operation. This is conceded, but the further argument was that it was unnecessary for the Governor‑General to direct that any order made by one High Court should be deemed to be an order of the other High Court, for mass movement of the popula tion was not contemplated at the time of the Partition and, if the petitioner had continued to stay in the Indian Dominion, he could have executed his decree in Amritsar. It seems to me, however, that the creation of two Independent Dominions was believed to carry with it the possibility of a partial migration of people, though not on a very large scale, and in order that they should not be put to inconvenience it was necessary to make provision enabling them, in certain cases, to seek relief in either country. Further, I think the language of clause (d) is wide enough to include a contingency like the present one. By subsection (5) of section 9, the Governor‑General was enabled, in the first instance to make these orders up to the 31st of March, 1948, the object being to remove difficulties which should arise in connection with the transition to the provisions of Independence Act. If, for instance, the Act provides that there should be two Provinces instead of one, then in order that the administration of both provinces, both judicial and executive, should be on a practical basis, it would be necessary to pass such orders as would contribute towards the smooth working of the constitution. The provision upon which the petitioner has relied is undoubtedly a provision of this character.
I would, therefore, dismiss this objection also. The application is transferred for execution to the Court of the Senior Civil judge of Lahore.
A. H. Petition allowed.
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