BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14/08/2007 CORAM THE HONOURABLE MR.JUSTICE S.ASHOK KUMAR C.R.P.NPD.Nos.925 of 2007 C.R.P.NPD.Nos.926 to 928 of 2007 C.R.P.NPD.Nos.925,927 928 of 2007 A.P.S.Thandavarayan ... Petitioner in all CRPs. Versus Premavathi ... Respondent in C.R.P.No.925 of 2007 D.Gunaseelan ... Respondent in C.R.P.No.927 of 2007 D.Venkateswaran ... Respondent in C.R.P.No.928 of 2007 C.R.P.NPD.No.926 of 2007 1.Vakarmathi 2.A.P.S.Thandavarayan ... Petitioners Versus K.Doraiswami ... Respondent Civil Revision Petitions filed under Article 227 of the Constitution of India against the order and decretal order made in E.A.Nos.751,745,747 and 748 of 2003 in E.P.No.19 and 15 of 1996, E.P.No.45 of 1997 and E.P.No.50 of 1998 in O.S.No.396,376,388 and 391 of 1993 dated 16.12.2004 on the file of the I Additional Subordinate Judge, Tiruchirapalli respectively. !For Petitioners ... Mr.K.Prabhakar for Mrs.Maria Roselin ^For Respondents ... Mrs.N.Krishnaveni :ORDER
Aggrieved over the order and decretal order made in E.A.Nos.751,745,747
and 748 of 2003 in E.P.No.19 and 15 of 1996, E.P.No.45 of 1997 and E.P.No.50 of
1998 in O.S.No.396,376,388 and 391 of 1993 dated 16.12.2004 on the file of the I
Additional Subordinate Judge, Tiruchirapalli respectively, these civil revision
petitions are filed.
2.Brief facts of the case are as follows:
The respondents have filed O.S.Nos.396 376,388 and 391 of 1993 on the file
of the I Additional Subordinate Judge, Tiruchirapalli for recovery of money
based on promissory notes executed by the petitioners in favour of the
respondents. The suits were decreed. Pursuant to the judgement and decree, the
respondents have initiated execution proceedings against the petitioners in
E.P.No.19 and 15 of 1996, E.P.No.45 of 1997 and E.P.No.50 of 1998 in
O.S.No.396,376,388 and 391 of 1993 respectively. Thereafter the petitioners have
filed applications in E.A.No.678 and 675 of 1997,E.A.No.182 of 1999 and
E.A.No.492 of 1998 in E.P.No.19 and 15 of 1996, E.P.No.45 of 1997 and E.P.No.50
of 1998 under Section 47 and 151 C.P.C. to declare that the above judgement and
decree is null and void. The petitioners have also filed applications in
E.A.Nos.751,745,747 and 748 of 2003 to direct the respondents/decree holders to
produce the original passport along with xerox copy of the passport to prove the
fact that the respondents are the foreigners and they are not entitled to
execute the decree and realise the amounts without the permission of the Reserve
Bank of India as per the provisions of FERA and FEMA.
3.After contest, the learned I Additional Subordinate Judge,
Tiruchirapalli, dismissed the said application.
4.Aggrieved over the said order, these civil revision petitions are filed.
5.The learned counsel appearing for the revision petitioners would contend
that the petitioners had filed applications in E.A.No.678 and 675 of
1997,E.A.No.182 of 1999 and E.A.No.492 of 1998 in E.P.No.19 and 15 of 1996,
E.P.No.45 of 1997 and E.P.No.50 of 1998 under Section 47 C.P.C. to declare the
decree passed in O.S.Nos.396,376,388 and 391 of 1993 on the file of the I
Additional Subordinate Judge, Tiruchirapalli as null and void, in view of the
fact that the decree-holders/respondents are Srilankan citizen and therefore
they are not entitled to execute the Decree as it will be violation of the
provisions of the Foreign Exchange Regulation Act 1973. So they had also filed
applications for a direction to the respondents/decree-holders to produce the
original passports along with the photo copy of the passports. He would further
contend that the lower court not only dismissed the said applications, but also
gone into the merits of the case and has held that Foreign Exchange Regulation
Act 1973 had been repealed and Foreign Exchange Management Act 1999 (Act 42 of
1999) has come into force and therefore, the applications filed by the
petitioners do not lie. The learned counsel appearing for the petitioners would
submit that the trial court exceeded in its jurisdiction and gave a finding with
regard to the merits of the case, which has to be necessarily decided on merits
when the applications filed under Section 47 C.P.C. are taken up for hearing.
Therefore the order of the lower court is liable to be set aside.
6.Admittedly the petitioners have filed applications in E.A.Nos.678 and
675 of 1997, E.A.No.182 of 1999 and E.A.No.492 of 1998 in E.P.No.19 and 15 of
1996, E.P.No.45 of 1997 and E.P.No.50 of 1998 to declare the judgement and
decree passed in O.S.No.396,376,388 and 391 of 1993 as null and void and the
same is pending disposal. The petitioners have filed applications in
E.A.Nos.751,745,747 and 748 of 2003 for a direction to the
respondents/plaintiffs to produce their passports for the purpose of proving the
fact that the respondents are foreigners and they are not entitled to execute
the decree. The Execution Court dismissed the said applications on the ground
that FERA, 1973 had been repealed and FEMA 1999 (Act 42 of 1999) has come into
force and therefore, the applications do not lie. The learned counsel appearing
for the petitioner would contend that even though FERA had been repealed and a
subsequent enactment FEMA has come into force, the earlier proceedings were
commenced when FERA was in force and therefore parties are governed only by the
repealed FERA alone. The learned counsel appearing for the respondents pointed
out that under Section 2 v(i) of the FEMA, the definition for a “Person resident
in India” means a person in India who resides in India for more than one hundred
and eighty two days during the course of the preceding financial year. The
respondents in their counter stated that they migrated to India on 1.4.1983 and
from then onwards they are residing in India. They have also stated that they
are income tax assessees in India and the loan advanced to the petitioners have
been shown in the Income-Tax Assessment and the respondents have been paying tax
for the same. Therefore this court is of the considered view that for proving
the fact whether FERA is applicable or FEMA is applicable in the
case of the petitioners, the passport alone is not material document.
7.In the above circumstances the lower court has rightly come to the
conclusion that the passport is not a necessary document to decide the issue
involved in this case. Therefore I do not find any illegality or irregularity in
the order of the lower court.
8.In the result, these civil revision petitions are dismissed. No costs.
Consequently the connected M.Ps. are also dismissed. However the I Additional
Subordinate Judge, Tiruchirapalli is directed to dispose of the E.A.No.678 and
675 of 1997,E.A.No.182 of 1999 and E.A.No.492 of 1998 in E.P.No.19 and 15 of
1996, E.P.No.45 of 1997 and E.P.No.50 of 1998 in O.S.Nos.396,376,388 and 391 of
1993 expeditiously.
vk
To:
The I Additional Subordinate Judge,
Tiruchirapalli.