First Appellate Court is the last court of ‘facts’

First Appellate Court is the last court of ‘facts’

Under Sec.96 of the Civil Procedure Code the first appellate court is the last court of ‘facts’.

Under Sec.100 of CPC, the High Court in second appeal, cannot interfere with the ‘findings of fact’ recorded by the first appellate court under Sec.96 of CPC.

No doubt the ‘finding of fact’ of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect.

In Gurvachan Kaur case the Supreme Court held that —

“It is settled law that in exercise of power under Sec.100 of CPC, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse.”

In Kulwant Kaur case the Supreme Court held that —

“Admittedly, Sec.100 of CPC has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stated vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication – what is required is a categorical finding on the part of the High Court as to perversity.”

Sec.103 of CPC which reads as follows:

“103: In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, —

(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Sec.100.”

The requirements stated specified in Sec.103 and nothing short of it will bring it within the ambit of Sec.100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law.

Advertisements

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.

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.

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.