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Madras High Court
Lingam Krishna Bhoopathi Deo Garu vs The Honourable Sri Mirza Sri … on 7 January, 1914
Equivalent citations: (1914) 26 MLJ 185
Author: Spencer


JUDGMENT

Spencer, J.

1. Two grounds of appeal are pressed. It is contended (1) that the order of the District Court recognising the transfer of the decree by the Manager and agent of the estate of the Maharajah of Vizianagaram in favour of the 2nd respondent and allowing the latter to execute the decree was an order made without jurisdiction, the proper Court which should pass such an order in a case, which had gone up to the Privy Council in appeal from a decree of the High Court which confirmed the Original decree of the District Court, being the High Court;

2. That Mr. Fowler as Attorney of the Maharajah was not expressly authorized under the Power, namely Exhibit A, to transfer decrees obtained by his principal for less or indeed for any amounts.

3. No direct authority has been quoted in support of the first proposition. It is sought to be inferred from the language of Order 45, Rules 15 and 16 read along with Sections 38, 39 and 42 Civil Procedure Code. Reference has also been made in the arguments to the decision in Swaminatha Aiyar v. Vaidyanatha Sastri (1905) I.L.R. 28 M. 466, in which it was held that an application under Section 234 of the Code of 1882 (corresponding to Section 50 of the present Code) to execute a decree against the legal representatives of the deceased judgment-debtor must be made to the Court which passed the decree and not the Court to which it has been transferred for execution ; and the decision in Hurrish Chunder Chowdhry v. Kali Sunderi Debi (1882) I.L.R. 9 C. 482, is cited as an instance of the High Court disposing of a similar question arising in the execution of an order of Her Majesty in Council. But in my opinion the position of an Original Court which itself passed a decree against which appeals have been carried up to the Privy Council, when it receives the order of His Majesty in Council transmitted to it by the High Court, is not to be compared with the position of a court to which the decree of another Court has been transferred for execution. They are totally different positions.

4. Order 21, Rule 15 permits a transferee of a decree to apply for execution of the decree to the Court which passed it. Section 38 permits a decree to be executed either by the Court which passed it or by the Court to which it is sent for execution. Section 37 defines the expression “Court which passed a decree” as including the Court of first instance where there has been an appeal. Similar words are used in Order 45 Rule 15 where it is provided that the Court from which an appeal to His Majesty has been preferred shall transmit the” order of His Majesty in Council to the Court which passed the first decree appealed from. The act of the High Court in receiving and filing an order of the Privy Council is a purely ministerial function vide observation in Premlall Mullick v. Sumbhoonath Roy (1895) I.L.R. 22 C. 971. It is so provided that the High Court should act as an intermediary for carrying out the orders of His Majesty in Council, because the Privy Council does not deal direct with Subordinate Courts.

5. In the present instance the petition of the transferee decree-holder to transmit the order of the Privy Council with a prayer for a direction to bring him on “record in that capacity came before a Bench of this Court, and the learned Judges who disposed of his application (the Chief Justice being one of the Bench) expressly refused to make any directions. Without treating him as having locus standi to make the application they transmitted the order, without prejudice to his right to take and the original decree-holder’s right to give an assignment of the decree in question.

6. In Hurrish Chunder Chowdhry v. Kali Sunderi Debi (1882) I.L.R. 9 C. 482, the question was not one of recognising a transfer of a decree but whether one of two co-plaintiffs ought to be permitted to execute a decree without the concurrence of the other plaintiff. Their Lordships of the Privy Council refrained from deciding whether the learned High Court Judge usurped a jurisdiction which did not belong to him, although they were inclined to think he had not done so. His order was set aside on other grounds, namely that it was erroneous to suppose that a decree can only be executed as a whole and not partly by one of the plaintiffs.

7. I therefore find nothing irregular or contrary to law in the action of the District Court in permitting the transferee to execute the decree, nor has the original decree-holder raised any objection to his doing so.

8. In support of the second contention we have been referred to the case of Palaniappa Chettiar v. Arunachella Chettiar (1912) 23. M.L.J. 595 and contra to the case of Venkataramana Iyer v. Narasinga Row (1913) M.W.N. 72

9. Every document must be construed with reference to its particular terms, and differently worded documents afford but little assistance for correctly construing the document concerned in this case. We have referred to the power of attorney concerned in Palaniappa Ghettiar v. Arunachella Chettiar (1912) 23. M.L.J. 595, and we find that the scope of the agent’s powers was far more limited than that of the powers conferred under Exhibit A. The learned Judges who decided that case observed that there was no clause of a comprehensive character which would show that the principal intended to confer plenary powers on his attorney, to deal with all properties and rights belonging to him. While it is true, as laid down in that case, that established law requires a power of attorney to be construed strictly, it is also correct to hold that when an agent has a general power of attorney to act in some business or series of transactions he may be assumed to have all usual powers.

10. I feel no doubt that the words in Exhibit A “To conduct and manage all other the estate property, moneys, affairs and concerns of the Zemindari in all respects as fully and absolutely as the principal himself is empowered to do and (subject as aforesaid) to do, perform and carry out all such acts and deeds and things whatsoever as may be considered requisite for the above purposes as amply and effectually as the principal could do in his own person if these presents had not been executed” do confer on the Maharajah’s manager such plenary powers as would include the transfer for a proper purpose to another person of decrees obtained in the name of the Maharajah himself, apart from other words which occur later in the same document. I would therefore dismiss this appeal with costs.

Sadasiva Aiyar, J.

11. I entirely agree with the Judgment just now pronounced by my learned brother. The appellant’s Vakil relied on the close similarity between the terms of Order 45, Rule 16 and the terms of the last sentence of Section 42 of the Civil Procedure Code. Order 45 Rule 16 says that orders in execution made by the Court which executes the order of His Majesty in Council ” shall be appealable in the same manner and subject to the same rules as the orders of such court relating to the execution of its own decrees”. The last sentence of Section 42 of the Civil Procedure Code states that the ” orders of a court shall be subject to the same rales in respect of appeal as if the decrees had been passed by itself”. On this similarity of wording, it was argued that just as a court to which the decree of another Court is sent for execution, cannot entertain applications under Order 21 Rule 16 or Section 50 Clause (1), so, even the court of First Instance whose decision ultimately went to the Privy Council, could not entertain such applications because His Majesty’s order had to be sent to it for execution by the High Court. I do not think that this argument is sound as it ignores, as pointed out by my learned brother, the principle underlying Section 37 of the Code which defines the expression the Court which passed the decree” as including the Court of First Instance so far as the powers of that court relating to execution of the decrees passed by the appellate court are concerned.

12. As regards the construction of the power of attorney, Exhibit A, I think that the power to manage a big Zamindari estate must include the power to transfer for a reasonable consideration a decree amount due to the estate. Clause 24 of the power of attorney, Exhibit A, confers, in my opinion, on the manager the power to execute deeds and conveyances necessary for the purpose of effectuating such transfers as are incidental to the business of estate management.

13. Again, as regards the decision in Palaniappa Chettiar v. Arunachella Chettiar (1912) 23 M.L.J. 595, the principal himself in the case repudiated the act of his agent as beyond the scope of his authority, whereas in the present case, the principal by his conduct ratified the act of his agent (See para 10 of the Lower Court’s Judgment) and in fact it was not denied that the principal has received the purchase money for the transfer from his agent’s transferee and consented to the transferee executing the decree.

14. I therefore concur in dismissing the appeal with costs.


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