Precepts

Precepts (pronounce as “pre-sept”)

Precept means ‘a legal direction by one court to another court.”

The Precept Order is normally issued by one court, while executing a decHCree, to another court of other area to attach the property of the judgment debtor situate in that area.

In other words, if a property to be attached is situate in the area of another court’s territorial jurisdiction, then the court which passed the decree can issue a precept order to that court to attach that property of the judgment debtor.

Every court has its jurisdiction within the limits of its territorial area and not beyond that. Therefore the court which passed the decree shall have power to issue such Precept order to another court to attach the property of the judgment debtor property which situate within its territorial jurisdiction.

Therefore, a Precept order is a request of one court to another court to do some legal act.

Sec.46 CPC “Precepts”

(1) Upon the application of the decree-holder the court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to whom a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.

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What is a foreign judgment? NRI Divorce Decrees

Foreign Judgments

CPC sec.2(6) defines ‘a foreign judgment’ as “the judgment of a foreign Court.”

CPC sec.2(5) defines ‘a foreign Court’ as “a Court situate outside India and not established by the Central Govt.”

Whether ‘a foreign judgment’ binds the Indian Courts?

Sec.14 CPC gives guidance as to ‘Presumption of a foreign judgment’ as the Court (Indian Court) shall presume, upon the production of a certified copy of a foreign judgment, which was pronounced by a Court of competent jurisdiction.

Sec.13 of CPC postulates certain circumstances when a foreign judgment is not conclusive one.

A foreign judgment shall be conclusive one as to ‘any matter directly adjudicated upon’ between the same parties (or between parties under whom they claim).

Certain exceptions are to this Rule. The “exceptions” to this rule are –

  • (a) Where it has not been pronounced by a Court of competent jurisdiction;
  • (b) Where it has not been given on the merits of the case;
  • (c) Where it appears on the face of the proceedings to be founded on the incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
  • (d) Where the proceedings in which the judgment was obtained are opposed to natural justice;
  • (e) Where it has been obtained by fraud;
  • (f) Where it sustains a claim founded on a breach of any law in force in India;

The Madras High Court’s view as to the circumstances which would give jurisdiction to foreign Courts:

  • Where the person is a subject of the foreign country in which the judgment has been obtained;
  • Where he was a resident in the foreign country when the action was commenced and the summons was served on him;
  • Where the person in the character of plaintiff selects the foreign court as the forum for taking action in which forum he is sued later;
  • Where the party on summons voluntarily appeared (in a foreign court);
  • Where by an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained.

Those are all the circumstances under which a foreign Court has jurisdiction and such judgment passed by such court as competent jurisdiction.

The Supreme Court’s view as to competent jurisdiction of a foreign court:

“Unless a foreign court has jurisdiction in the international sense, a judgment delivered by that court would not be recognized or enforceable in India.

The true basis of enforcement of a foreign judgment is that the judgment imposes an obligation upon the defendant and, therefore, there must be connection between him and the forum sufficiently close to make it his duty to perform that obligation.

Foreign Judgment which is “opposed to natural justice” as stipulated in Sec.13(d):

The Supreme Court held that the expression “contrary to natural justice”, when applied to foreign judgment, merely relates to the alleged irregularities in procedure adopted by the adjudicating court and has nothing to do with the merits of the case. The courts have to see that the defendant had not been deprived of an opportunity to present his side of the case. The wholesome maxim “audi alteram partem” is deemed to be universal not merely of domestic application.

How a Decree of a foreign court can be executed?

The execution of a decree (whether it is passed by an Indian Court or a foreign Court) can be executed (implemented) under the provisions of CPC and not by any other law.

Sec.44(A) CPC prescribes the execution of decrees passed by Courts in reciprocating territory —

  • Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court (in India).
  • Together with the certified copy of the decree, shall be filed a certificate from such superior Court stating the extent to which the decree has been satisfied.
  • The District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the ‘exceptions’ specified in clause (a) to (f) of section 13 CPC.

Reciprocating territory” means – any country or territory outside India which the Central Govt may, by Notification in the Official Gazette, declare to be a reciprocating territory for the purpose of this section.

Decree with reference to a superior Court” means – any decree or judgment of such Court under which a sum of money is payable, but in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.

If it is not a reciprocating country or territory:

If a decree is passed by a foreign court which is not a ‘reciprocating territory’ under the Central Govt’s notification, then such decree or judgment cannot be executed in India and in that case, the party has to file a fresh suit in India.

Foreign Decree of Divorce:

Sec.13 CPC is applicable to matrimonial cases also.

A decree obtained by a spouse (either husband or wife) in a foreign Court in the absence of the other spouse, such decree granted by a foreign court is a nullity (it is not valid and it is not binding the opposite party) and therefore it cannot be executed in India.

If the defendant is a resident of a foreign country when the action is commenced in a foreign Court, such judgment is binding on the defendant and it can be executed against that defendant in India.

NRI Divorces:

The following is the NEWS from the Times of India regarding NRI Divorce:

The Times of India NEW DELHI Oct 9, 2011:

A trial court has held that a divorce decree granted by a foreign court to an NRI is invalid in case the woman does not have the means to go to that country to plead her case and if she had not subjected herself to the jurisdiction of that court.

“The apex court has opined that where the foreign judgment is in defiance of the Indian Law, it could not be said to be conclusive… in the matter adjudicated and would be unenforceable,” in this country,” it said, adding the woman’s objections raised by the woman fell within the purview of the exceptions of Section 13 Civil Procedure Code (when ‘foreign judgment not conclusive’.

The court gave the ruling in a case where a UK-based NRI divorced his wife there though his wife had returned to India and not “submitted to the jurisdiction of a foreign court”. The woman has sought divorce here on grounds of cruelty. The court said that the decree of divorce granted by the court could not be recognized.

Res judicata doctrine

Res judicata doctrine

Res judicata

Court shall not try any subsequent suit in which the disputed matter directly in issue has been directly in issue in a former suit, between the same parties.

Once an issue or dispute has been finally decided by a court in any previous suit, the same issue or dispute shall not be subsequently heard by the court in a subsequent suit by the same parties. This rule is called as ‘Res judicata’.

Sec.11 CPC postulates the principles of Res judicata.

It is a Latin term, which means –

‘res’ = matter (dispute);

‘judicata’ = judged or already decided;

This may be pronounced as ‘rez judi-cot-ah

This term postulates the doctrine that ‘once the matter is decided, it is finally decided.’

The Supreme Court laid the law that orders passed by the Tribunal which had no jurisdiction to pass such orders were nullities and no question of res judicata would arise in connection with such orders of an incompetent authority.

Bar to further suit:

Certain Rules in CPC, prevent a plaintiff from instituting a ‘further suit’ (subsequent suit) in respect of the ‘same cause of action’. Sec.12 CPC restricts a plaintiff to file another suit (fresh suit) on the same cause of action.

But the principle of res judicata is different. It does not bar the subsequent suit, but it specifically barred in deciding the issue (or disputed point) which has been already decided in the same suit or in any previous suit between the same parties.

Stay of suit:

If there are two suits pending between the same parties and the issues are the same in both suits, the subsequent suit (later suit) shall be stayed by the court, pending the disposal of the earlier suit.

Sec.10 of CPC postulates this principle of ‘stay of the subsequently instituted suit.’

This principle of ‘stay of suit’ does not apply to a case pending in a foreign court between the same parties. (this rule applies only among the two suits pending in Indian Courts between the same parties.)

In short:

Sec.10 (Stay of suit) when there are two suits pending (between the same parties);

Sec.11 (Res judicata) when an issue (dispute) was already decided, it cannot be taken back (between the same parties); Any final judgment (decision) is a ‘conclusive one’ and it cannot be re-agitated.

Sec.12 (Bar of further suit) the plaintiff is legally barred to file another fresh suit on the same cause of action, when he already filed a suit on the same cause of action and it was decided or dismissed or withdrawn (not in all times, but in certain situation, a subsequent suit is barred as per the Rules of CPC).

Mesne profits

Mesne profits

“Mesne” means intermediate or intervene.

The ‘mesne’ may be pronounced like ‘mean’ in the word ‘meaning.’

‘Mesne profits of property’ means those profits which the person in wrongful possession of such property actually received.

The CPC Sec.2(12) defines what is mesne profits.

Whoever in wrongful possession of property shall pay the mesne profits (profits to be calculated according to the rental income or other profits derived therefrom by way of damages or compensation) to its legal owner.

Mesne profits and the Limitation Act:

This mesne profits can be claimed upto the preceding three years only and not beyond that period, according to the Limitation Act.

This claim of mesne profits frequently occurs in suits between Landlord and tenant and the legal owner and the trespasser or anyone in wrongful possession.

The Supreme Court’s view on mesne profits:

The Supreme Court of India held that the wrongful possession of the defendant is the very essence of a claim for such mesne profits. Therefore the liability to pay mesne profits goes with actual possession of the land. Generally, the person in wrongful possession and enjoyment of the immovable property is liable to pay mesne profits.

The tenant, who is in occupation of premises, after the termination of his tenancy, is the person in wrongful possession and he shall pay the mesne profits (rental money by way of mesne profits) to the landlord.

Mesne profits in a partition suit:

Where in a partition suit, one of the co-sharers claims the profits/income from the disputed property (as mesne profits) from the other co-sharer/s is/are in possession of the disputed property.

Decree to be passed on mesne profits:

Under Order XX Rule 12 of the CPC, the Court while passing the decree may pass a decree (or directing an enquiry) for such rents or mesne profits which have accrued on the property during the period prior to the institution of the suit.

Under this Rule, the Court is to pass a decree for both past and future mesne profits;

Court fee has to be paid for “past mense profits”:

Specifically, the plaintiff must plead his cause of action, and claim a decree for ‘past mesne profits’ and value the claim approximately and pay court fee thereon.

No cause of action for “future mesne profits”:

However, with regard to ‘future mesne profits’, the plaintiff has ‘no cause of action’ on the date of institution of the suit.

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Judgment, Decree, Order, Appeal

Decree:

Decree means a formal adjudication which ‘conclusively determines’ the rights of parties.

Decree may be either ‘preliminary decree’ or ‘final decree’.

If a suit can be completely disposed of by a decree, it is called ‘final decree.’

In a decree, when further proceedings have to be taken before the suit is completely disposed of, it is a ‘preliminary decree.’

If an ‘order’ from which an appeal lies, it is not a ‘decree’.

Any ‘order’ of dismissal for default is ‘not a decree’.

‘Judgment’ means the statement given by the Judge on the grounds of decree or order.

Order:

‘Order’ means the formal expression of “any decision of a Civil Court”, which is not a decree.

Order from which appeal lies:

An appeal shall lie from the following orders – viz.

  • Order against ‘compensatory costs’ under sec.35A;
  • Order ‘refusing leave to institute suit’ of the nature of Public Nuisance and Public Charities under sec.91 and 92.
  • Ordering compensation for obtained orders on insufficient grounds under sec.95.
  • Order imposing fine or arrest (except in execution proceedings);
  • Any ‘orders’ passed in appeal proceedings.

What court to hear appeals from ‘Orders’?

Appeal from orders shall lie to the Court which in the normal circumstances ‘an appeal would lie from the decree in that suit’.

CPC sec.2(2) defines what is ‘decree.’

CPC sec.2(14) defines what is ‘order.’

CPC sec.2(9) defines what is ‘judgment’

CPC sec.104 prescribes from which ‘Orders’ appeal lies.

CPC sec.106 prescribes the court to hear appeals arise from orders.

Appeal to the Supreme Court

Subject to provisions of Part V Chapter IV of the Constitution of India, ‘an appeal shall lie to the Supreme Court’ from any judgment, decree or final order in any civil proceedings. (provided if the High Court certifies that the case involves a substantial question of law).

The Supreme Court itself has power under Article 136 of the Constitution to hear any appeal from any judgment, decree or final order in any civil proceedings.

பிறக்காத குழந்தைக்குச் சொத்து (Unborn child)

பிறக்காத குழந்தைக்குச் சொத்து (Unborn child)leaf 009

பிறக்காத ஒரு குழந்தைக்கு, சொத்தை ஒருவர் கொடுக்க முடியுமா?

இந்தியாவில் உள்ள சொத்துரிமை மாற்றுச் சட்டம் 1882-ன் பிரிவு 5-ன்படி “எந்த சொத்துக்களையும் ஒருவருக்கு மற்றொருவருக்கு உரிமை மாற்றிக் கொடுத்துக் கொள்ளும்போது, (விற்பனை, செட்டில்மெண்ட், போன்றவை), இரண்டு உயிருள்ள நபர்களுக்குள் மட்டுமே கொடுத்துக் கொள்ளமுடியும் அல்லது பரிமாறிக் கொள்ள முடியும் என்று சொல்லியுள்ளது. மேலும், உயிருள்ள நபர் என்பது, மனிதர்களையும், மனிதர்களால் நடத்தப்படும் நிறுவனங்களையும், (அது பதிவு செய்யப் பட்டிருந்தாலும், அல்லது பதிவு செய்யப்படாமல் இருந்தாலும்) உள்ளடக்கியே உயிருள்ள நபர் என்றே கருதப்படும் எனவும் விளக்குகிறது.

இவ்வாறு தெளிவாக சொல்லிப்பட்டிருக்கையில், எப்படி பிறக்காத (உயிரில்லாத) ஒரு குழந்தைக்கு கொடுக்க முடியும் என்ற கேள்வி எழும்.

இந்திய சொத்துரிமை மாற்றுச் சட்டத்தில், முஸ்லீம் அல்லாதவர்களுக்கு என்றே, 2-ம் அத்தியாயம் உள்ளது. அதிலுள்ள பிரிவுகள் 5 முதல் 53-ஏ வரை உள்ளவைகள், விதிவிலக்கான அல்லது வித்தியாசமான சில சொத்து மாற்றங்களைக் குறிப்பிடுகிறது. அவ்வாறு சொல்லப் பட்டுள்ளவைகளில் பிரிவு 13-ல் தான், “பிறக்காத குழந்தைக்கு சொத்தை மாற்றுவதைப் பற்றி” சொல்லப்பட்டுள்ளது.

பிரிவு:13: “பிறக்காத குழந்தைக்கு, அந்த குழந்தைக்கு பயன் அளிக்கும் வகையில் ஒரு சொத்தை கொடுக்கலாம் என்றும்; அவ்வாறு கொடுத்த சொத்தை பெறுவதற்கு அந்த குழந்தை இந்த உலகில் இல்லாமல் இருப்பதால், அதற்கு முன், அதை உயிருள்ள ஒருவர், தன்கைவசம் வைத்திருத்து, அந்த குழந்தை பிறந்தவுடன் அதனிடம் சேர்த்து விடவேண்டும்” என்று அந்த பிரிவில் சொல்லப்பட்டுள்ளது.

மேலும், அவ்வாறு அந்த பிறக்காத குழந்தைக்கு கொடுக்கும் சொத்தை, அனுபவிக்கும் உரிமையை கட்டுப்படுத்தாமல், (அதன் ஆயுட்கால உரிமை என்று எழுதாமல்) முழுஉரிமையுடன் அந்த குழந்தை பிறந்தவுடன் அனுபவிக்க ஏதுவாக கொடுத்திருக்க வேண்டும்.

மேலும், “பிறக்காத குழந்தை” என்பது இதுவரை பிறக்காமல் அதாவது கருவில்கூட உருவாகாமல் இருக்கும் குழந்தை என்றே சட்டம் கருதுகிறது. ஆனால், கருவில் வளரும் குழந்தை, இந்த உலகில் ‘உயிருடன் இருக்கும் குழந்தை’ என்றே கருத வேண்டும்.

உயில் எழுதி வைக்கும்போதும், இவ்வாறான பிறக்காத குழந்தைக்கு சொத்து சேரும்படியும் உயிலை எழுதி வைக்கலாம்.