ivil Appeal No 203 of 1975
From the Judgment and Order dated 12121974 of the Madhya Pradesh High Court in Second Appeal No 569 of 1970
UR Lalit Rameshawar Nath LG Kher and Ravinder Nath for the appellant
PP Rao Dr NM Ghatate SV Deshpande Ms Priya Gupta and Ejaz Maqbool for the Respondents
The Judgment of the Court was delivered by KASLIWAL J
This appeal by special leave is directed against 908 the judgment of the High Court of Madhya Pradesh at Jabalpur dated 12th December 1974
This litigation has a long chequered history of more than five decades
The appellant the Sagar Mahila Vidyalaya is an educational institution founded by a section of the public of District Sagar MP by giving donations and is duly registered under the Societies Registration Act Act XXI of 1860
On 17th November 1933 one Govind Rao Harshe had mortgaged some agricultural land and house known as Harshewada   to Lakshmi Chand and Duli Chand Modi
The aforesaid mortgages filed a suit and obtained a preliminary decree for sale on 14th July 1937
A final decree for sale for the realisation of Rs 5001136 was passed on 26th March 1938
On 29th March 1938 the decree holders applied for execution of the said decree
The execution of the aforesaid decree was stayed and in the meantime CP and Berar Relief of Indebtedness Act 1939 came into force
The judgment debtor Govind Harshe alongwith his minor sons namely Sadashiv Rao and Ram Chander Rao applied for settlement of the debts on 14th September 1939 in the Debt Relief Court Sagar
the execution of the final decree for sale had been stayed by the executing Court as per the provisions of the Relief of Indebtedness Act
On 11th September 1940 the Debt Relief Court reduced the amount and granted instalments
The creditors filed revision applications against the aforesaid order of Debt Relief Court
The revision filed by Lakshmi Chand and Duli Chand was registered as Civil Revision No 119 of 1940 while that of another creditor Pandey Shankernath was registered as Civil Revision No 27 of 1941
The Additional District Judge disposed of both the revisions by order dated 29th September is the copy of the order passed in Civil Revision No 119 of 1940 and its operative part reads as under For the reasons given in paragraph 8 of the order of CR No 27 of 1941 I hold that a condition can be prescribed by the D R Court in default of which the order fixing instalments shall cease to have effect and the whole claim shall become recoverable
I therefore order that the debtors shall keep the mortgaged property intact by paying its land revenue in time every year and shall keep the house in good repairs as a condition precedent to the continuance of their right to pay the claim by instalments fixed by the DR Court
In default of their paying land revenue of the Malik Makbuza land in time endangering its sale for its recovery and in case they deliberately fail to keep the mortgaged 910 house in proper repairs or endanger its existence this order of instalments shall cease to have effect and the applicant creditor shall become entitled to recover the whole amount
Parties will bear their own costs of this revision   On November 1941 the decree holders Lakshmi Chand and Duli Chand Modi applied for the revival of the execution proceedings on the ground that the judgment debtor had defaulted in carrying out the directions of the revisional court and as such the order passed by the Debt Relief Court granting instalments had ceased to exist and the whole amount had become payable in lumpsum
the decree holders as such prayed for the sale of the house property in dispute
the judgment debtor Govind Rao Harshe did not appear before the executing court inspite of service of notice and allowed the execution case to proceed ex parte against him
On 31st March 1942 the executing court passed a order holding that the non applicant judgment debtor had committed breach of the condition and as such the decree holders were entitled to recover the amount determined by the Debt Relief Court as due to them at once
It was further held that the decree holders were entitled to execute the decree for recovery of debt amount
The judgment debtor Govind Rao Harshe submitted an application on 12th August 1942 for setting aside the ex parte order dated 31st March 1942
This application was dismissed on 13th November 1942
Civil Appeal filed against the said order was also dismissed on 6th April 1943 by the Additional District Judge
In the meantime the house mortgaged was put to auction and the highest bid of Rs 5905 was knocked down in favour of one Gopal Rao Mutatkar on 20th August 1942
14th of the auction amount Rs 1500 was deposited on the spot and the balance 34th amounting to Rs 4405 was deposited on 4th September 1942
The Judgment debtor Govind Rao Submitted an application under Order XXI Rule 90 CPC for setting aside the sale dated 20th August 1942
This application was rejected vide order dated 6th February 1943
Miscellaneous Appeal filed against the said order was dismissed by the Second Additional District Judge Sagar vide order dated 19th December 1943
It may be noted at this stage that in the meantime the sale was confirmed vide order dated 10th April 1943
Sadashiv Rao and Ram Chander Rao sons of judgment debtor Govind Rao Harshe who had become adult also moved the executing Court on 28th September 1943 that they were also necessary parties to the execution case as they were also parties in the proceedings before 911 the Debt Relief Court and as they were not made parties in the execution court the order passed by the executing court dated 31st March 1942 was void and without jurisdiction
This application was rejected on 13th December 1943
An appeal filed against this order was dismissed by the Additional District Judge Sagar by order dated 24th April 1944
The Miscellaneous second appeal filed against the appeal order was also dismissed by the High Court by order dated 15th December 1947
In the meantime on 15th January 1944 an application was submitted by Mahila Vidyalaya Sagar appellant before us through its Secretary Shri GR Wakhle for granting the sale certificate to the applicant Mahila Vidyalaya
It was stated in the application that the house in question was auctioned by the Court and was purchased by Gopal Rao Mutatkar on 20th August 1942 for Mahila Vidyalaya Sagar for Rs 5905 and the auction sale was confirmed by the Court on 10th April  1943
It was prayed that the sale certificate be granted to the applicant purchaser Mahila Vidyalaya
Stamps of Rs 90 were supplied with the application
A note was also appended with the application as under That when Gopal Rao son of Madho Rao offered bid in public auction he was a member of the above mentioned institution
But at present he is not a member
Therefore the following applicant who is the Secretary of this institution makes this application   The executing court on 26th February 1944 passed an order to the following effect The sale certificate will issue in the name of Mahila Vidyalaya Sagar through Secretary GR Wakhle  
The sale certificate was then actually issued in favour of Mahila Vidyalaya on 8th April 1944
It is further important to note that four sons of the judgment debtor Govind Rao namely Sadashiv Rao Ram Chander Rao Sarad Chand minor and Ashok Kumar minor filed a Civil suit in the year 1948 Civil Suit No 1 A of 1948 for a declaration that the execution sale was not binding on their interest
It may be noted that initially this suit was filed against Gopal Rao Mutatkar for Mahila Vidyalaya Sagar as defendant No 1a Shri GR Wakhle Secretary Mahila Vidyalaya as defendant No 1b Lakshmi Chand and Duli Chand as defendant Nos 2 and 3 and Govind Rao Harshe father of the 912 plaintiffs as defendant No 4
In that suit Gopal Rao Mutatkar and GR Wakhle filed their written statements and raised an objection that they were unnecessarily made parties as they had ceased to have any connection with the Mahila Vidyalaya
exhibit P 22 is the copy of the written statement dated 10th March 1948 filed by Gopal Rao Mutatkar in which he admitted that the house under dispute was auctioned on 20th August 1942 and the same was purchased by the Sagar Mahila Vidyalaya Sagar through him and that defendant No 1 b GR Wakhle as Secretary of the said Mahila Vidyalaya had made an application for issue of sale certificate and for possession of the house
The Sagar Mahila Vidyalaya Sagar was a registered institution and the suit should have been filed against the institution itself and not in the name of its office bearers
Shri GR Wakhle was the Secretary of the Sagar Mahila Vidyalaya Sagar in 1942 and 1943
He was no longer its secretary and the present Secretary of the said institution was Mr Kamlakar Nagarkar
It was thus prayed that the defendants 1 a and 1 b had been unnecessarily joined as parties to the suit and should be discharged
Thereafter the plaintiffs impleaded Mahila Vidyalaya Sagar as party
This suit filed by the aforementioned four sons of the judgment debtor was also dismissed on 27th December 1949 and costs were imposed not only on the plaintiffs but also on defendant No 4 ie Govind Rao Harshe the judgment debtor
The defendant No 4 was also required to pay Rs 300 to defendants 1 2 and 3 as compensatory costs
No further appeal was preferred against this judgment and decree
The Sagar Mahila Vidyalaya Sagar in the capacity of auction purchaser then applied for the delivery of possession
The possession was delivered to Mahila Vidyalaya on 24th March 1951
At the time of delivery of possession some portion of the house was in the occupation of Smt
Radha bai widowed sister of the judgment debtor Govind Rao Harshe and other portions were in the occupation of the tenants
The Secretary of the Mahila Vidyalaya Agreed to the request of the tenants including Smt
Radha Bai that they will not be ousted as they were willing to execute rent notes
Thereafter Mahila Vidyalaya being in need of more occupation moved the Rent Controller for permission to serve notices on the tenants to vacate the premises
The permission was granted by the Rent Controller on 10th March 1953 after service of the notices all the tenants except Mst
Radha Bai vacated the premises and handed over possession to Mahila Vidyalaya
The Mahila Vidyalaya then instituted a suit Civil Suit No 100 A of 1954 against Mst
Radha Bai and also Govind Rao Harshe who had started to live with his family in the portion occupied by Mst
Radha bai as her 913 licensee
The Trial Court dismissed the suit for ejectment but passed a decree for arrears of rent against Mst
Radha Bai alone
The appeal filed by the Mahila Vidyalaya was allowed by the Additional District Judge by judgment dated 27th October 1957
Against this decision Govind Rao Harshe alone preferred an appeal in the High Court and Mst
Radha Bai was impleaded as respondent No 2
The High Court by its judgment dated 29th April 1960 dismissed the second appeal filed by Govind Rao Harshe
The Mahila Vadyalaya then filed an execution application for ejectment of the occupants and the same is still pending as a result of stay order passed in a subsequent suit filed by Govind Rao Harshe which is now the subject matter of the present appeal before us
In the above background we would now state the facts of suit No 133 of 1960 filed in the Court of Civil Judge Class I Sagar on 26th November 1960 by Govind Rao Harshe which has culminated in the present appeal
Govind Rao Harshe filed the suit against Mahila Vidyalaya for a declaration possession and permanent injunction
Plaintiff Govind Rao Harshe died on 14th December 1967 during the pendency of the suit and all the respondents in the present appeal were substituted in his place as his legal representatives
The suit was dismissed by the Trial Court on 13th December 1968
On an appeal the District Judge Sagar allowed the appeal and decreed the suit in favour of the present respondents granting the declaration delivery of possession of the house together with a mandatory injunction directing demolition of some new constructions made by the Mahila Vidyalaya
Aggrieved against the judgment of the First Appellate Court the defendant Mahila Vidyalaya filed a second appeal before the High Court
The High Court by order dated 12th December 1974 dismissed the appeal
The defendant Mahila Vidyalaya in the above circumstances have come in appeal by the grant of special leave
The High Court held that as Gopal Rao Mutatkar was the auction purchaser no sale certificate could be issued by the executing court in favour of the appellant Mahila Vidyalaya
It was held that the bid in the auction was made by Gopal Rao for himself and not on behalf of Mahila Vidyalaya
The deposit of auction money was also made in his own name and the order dated 10th April 1943 confirming the sale was also made in his name
The High Court affirmed the finding of the First Appellate Court that Gopal Rao Mutatkar did not purchase the property in the auction acting on behalf of the appellant and the First Appellate Court rightly held that Gopal Rao Mutatkar was the auction purchaser ad the sale was confirmed in 914 his name and the deposited full sale amount in his own name
The High Court also held that Gopal Rao Mutatkar could only transfer his proprietary right by sale or a gift which he did not do
In the circumstances there was no transfer of the proprietary rights in favour of the appellant Vidyalaya and if that was so no certificate could be issued in favour of the Mahila Vidyalaya
The act of the executing court was clearly without jurisdiction and the sale certificate being void and inoperative conferred no right or title upon the appellant Mahila Vidyalaya over the suit property
The High Court further held that suit filed on 26th November 1960 being within 12 years from 24th March 1951 was within time
The plaintiff Govind Rao Harshe was never ousted by Gopal Rao Mutatkar who was the auction purchaser
He was dispossessed by a person who had no title
There was therefore no question of filing a suit for setting aside the sale
It was further held that the plaintiff in this case was not required to file a suit for getting the sale set aside when he was pleading that the sale itself was void
A void sale could be ignored by a true owner and it did not affect his title
The High Court thus took the view that the suit for possession on the basis of title was governed by Article 144 of the Limitation Act 1908
In either case whether Article 142 or 143 of the Limitation Act 1908 is applied the suit is within time
We have heard learned counsel for the parties and have thoroughly perused the records
In our view the High Court completely misdirected itself and wrongly ignored the earlier decisions between the parties and we are therefore inclined to allow this appeal
The admitted facts of the case are that the house in question was auctioned in the execution of a decree for sale obtained by the mortgagees Lakshmi Chand and Duli Chand Modi
Gopal Rao Mutatkar took part in the auction bid and it was knocked down in his favour on 20th August 1942
The sale was confirmed by an order of the executing court dated 10th April 1943
Govind Rao the judgment debtor submitted an application for setting aside the sale under Order XXI Rule 90 CPC but remained unsuccessful
The steps taken by his adult sons Sadashiv Rao and Ram Chander Rao for impleading them as parties also proved futile
It is an admitted position that an application was submitted by the Mahila Vidyalaya through its Secretary as early as 5th January 1944 for issue of a sale certificate in its name as the house was purchased in the auction for the Vidyalaya by Gopal Rao Mutatkar as a member of the institution
The Court on 26th February 1944 ordered that the sale certificate be issued to Mahila Vidyalaya
The necessary stamps for the sale certificate were supplied 915 by the Mahila Vidyalaya and the sale certificate was actually issued in the name of the Mahila Vidyalaya on 8th April 1944
It is important to note that no finger was raised nor any steps were taken by the judgment debtor or his sons objecting the issue of sale certificate in favour of Mahila Vidyalaya
A suit was brought in the year 1948 by the four sons of the judgment debtor Govind Rao Harshe
The two adult sons were those who had already remained unsuccessful in challenging the order of the Court dated 31st March 1942 and two sons Sarat Chand and Ashok Kumar were those who were born in the meantime
This suit filed in 1948 was for a declaration that the execution sale was not binding on their interests
It is worthwhile to note that this suit was initially filed against Gopal Rao Mutatkar and GR Wakhle but subsequently the plaintiffs impleaded the Mahila Vidyalaya in view of an objection raised by Gopal Rao Mutatkar and GR Wakhle that the house in question was actually purchased by Mahila Vidyalaya and the sale certificate was also issued in the name of Mahila Vidyalaya
This suit was dismissed on 27th December 1949 and had become final as no appeal was preferred against the dismissal of the suit
It may be further noted that application for delivery of possession to auction purchaser was filed by Mahila Vidyalaya on 22nd September 1948 and the symbolic possession was also delivered on 24th March 1951
As Mahila Vidyalaya was in need of more building it moved the Rent Controller for permission to serve notices on the tenants
The said permission was granted on 10th March 1953 and all the tenants except Mst
Radha Bai who was the widowed sister of Govind Rao Harshe handed over the possession to Mahila Vidyalaya
The Mahila Vidyalaya thereafter instituted Civil Suit No 100 A of 1954 against Mst
Radha Bai and Govind Harshe for ejectment and rent
The Trial Court dismissed the suit for ejectment but passed a decree for arrears or rent against Mst
Radha Bai alone
The appeal filed by the Mahila Vidyalaya was allowed by the Additional District Judge Sagar on 27th October 1957 and the prayer for ejectment was also allowed
Against this decision Govind Rao Harshe alone preferred a second appeal in the High Court and the same was dismissed by order dated 29th April 1960
In this litigation Govind Rao Harshe was held to be a licensee of his sister Mst
Radha Bai
The above narration of events which remain undisputed go to show that the house in question was sold in the execution of a final decree for sale and the bid was knocked down in the name of Gopal Rao Mutatkar as back as 20th August 1942
The entire sale money was deposited and the sale was confirmed under Order XXI Rule 92 CPC by order dated 10th April 1943
It is no doubt correct that the 916 final bid in the sale was knocked down in the name of Gopal Rao Mutatkar and the sale was also confirmed in his name but the sale certificate was admittedly issued in the name of the Mahila Vidyalaya
In this regard an application was filed on behalf of Mahila Vidyalaya on 5th January 1944 and the executing court had passed an order on 26th February 1944 that the sale certificate will issue in the name of Mahila Vidyalaya
In the application filed by Mahila Vidyalaya it was clearly stated that the house in question was auctioned by the Court and was purchased by Gopal Rao Mutatkar on 20th August 1942 for Mahila Vidyalaya
This stand taken by Mahila Vidyalaya was accepted and the executing court passed a specific order on 26th February 1944 for issue of a sale certificate in the name of Mahila Vidyalaya
The sale certificate was thereafter actually issued in the name of Mahila Vidyalaya on 8th April 1944
Steps for executing the decree and for obtaining actual possession was also taken by the Mahila Vidyalaya
Govind Rao Harshe was a party to the execution proceedings and till the filing of the present suit on 26th November 1960 no objection was raised as regards the sale certificate being wrongly issued in favour of Mahila Vidyalaya
Not only that in a suit for declaration filed in 1948 by the four sons of Govind Rao Harshe Gopal Rao Mutatkar in his written statement filed on 10th March 1948 had taken a clear stand that the house in question was actually purchased by Mahila Vidyalaya and as such he was wrongly impleaded as defendant in the suit
On such stand taken by Gopal Rao Mutatkar the plaintiffs had subsequently impleaded Mahila Vidyalaya as the defendant
In this suit also no objection was raised on behalf of the plaintiffs who were sons of Govind Rao Harshe that no sale certificate could have been issued in the name of Mahila Vidyalaya nor any title could have passed to Mahila Vidyalaya and as such there was no question of impleading Mahila Vidyalaya as defendant and the suit for declaration should continue against Gopal Rao Mutatkar
The High Court in the impugned order considered that as Gopal Rao Mutatkar was the auction purchaser no sale certificate could be issued by the executing court in favour of the appellant Mahila Vidyalaya
The High Court in arriving at the aforesaid conclusion also took the view that there was nothing on record to show that till the sale was confirmed it was ever made known that Gopal Rao Mutatkar was purchasing the property for and on behalf of the Mahila Vidyalaya
The order dated 10th April 1943 relating to confirmation of sale was also made in the name of Gopal Rao Mutatkar
The High Court further took the view that Gopal Rao Mutatkar could only 917 transfer his proprietary rights by sale or a gift and the same being not done there was no transfer of the proprietary rights in favour of the appellant Mahila Vidyalaya
It was thus held that the Act of the executing court was clearly without jurisdiction and the sale certificate being void and inoperative conferred no right or title on the appellant Mahila Vidyalaya over the suit property
We do not subscribe to the above view taken by the High Court in the facts and circumstances of the present case
The sale certificate is issued under Order XXI Rule 94 CPC The sale certificate is granted by specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser
An application was submitted on 5th January 1944 on behalf of Mahila Vidyalaya that it was the real purchaser and the bid in the auction was made by Gopal Rao Mutatkar on its behalf as he was a member of the institution
This application was accepted by the executing court by a specific order dated 26th February 1944 and it was directed that the sale certificate shall be issued in favour of the applicant Mahila Vidyalaya
The executing court had jurisdiction to allow or reject such application and it cannot be said that the act of the executing court was clearly without jurisdiction and the sale certificate as well as the entire execution proceedings were void and inoperative
In case Govind Rao Harshe had any grievance he ought to have challenged the order dated 26th February 1944 in the proper forum and had no right to challenge the same after 16 years by filing the present suit on 26th November 1960
We are not going into the propriety of such order but the same cannot be said to be void on account of being without jurisdiction as held by the High Court
The High Court while dealing with the question of limitation held that the plaintiff in this case was not required to file a suit for getting the sale set aside when he is pleading that the sale itself is void
A void sale could be ignored by a true owner and it did not affect his title
The High Court in our view was totally wrong in holding that it was a case of void sale
It may be noted that Govind Rao Harshe had already taken steps for getting the sale set aside by moving a petition under Order XXI Rule 90 CPC and his sons had filed a suit for declaration but all those proceedings finally terminated against them
Even if for arguments sake the objection now raised in the present suit is considered it is only in respect of the sale certificate being wrongly issued in favour of Mahila Vidyalaya
So far as the sale in favour of Gopal Rao Mutatkar is concerned there is no illegality and the sale was rightly confirmed in his favour under Order XXI Rule 92 CPC by order dated 10th April 1943
It may be noted that once an order was made under Order XXI Rule 92 confirming the sale the title of 918 the auction purchaser related back to the date of sale as provided under Section 65 CPC The title in the property thereafter vests in the auction purchaser and not in the judgment debtor
The issue of sale certificate under Order XXI Rule 94 CPC in favour of the auction purchaser though mandatory but the granting of certificate is a ministerial act and not judicial
Thus looking into the matter from this angle also it is clear that no right or title remained with Govind Rao Harshe after confirmation of sale in favour of Gopal Rao Mutatkar which related back to the date of sale ie 20th August 1942
Thus there is no question of holding that it was a case of a void sale which could be ignored by a true owner and it did not affect his title
Govind Rao Harshe and as such the respondents who are his legal representatives were not entitled to take the stand that they were true owner as the sale itself was void and they were not required to file a suit for getting the sale set aside
With the risk of repetition it is held that it was not a case of the sale being void and in any case so far as issue of sale certificate in favour of Mahila Vidyalaya is concerned the same was determined by a judicial order dated 26th February 1944 and the executing court was competent to pass such order cannot be held to be void on the ground of being without jurisdiction as determined by the High Court and it was necessary to challenge the said order within limitation
Even if the residuary Article 120 of the Limitation Act 1908 is applied it should have been challenged within 6 years and as such the present suit filed on 26th November 1960 was hopelessly barred by time
The High Court was clearly in error in taking the view that Govind Rao Harshe was the true owner and the appellant Mahila Vidyalaya was a trespasser
Even if it may be considered for a moment that sale certificate could not have been issued in favour of the appellant Mahila Vidyalaya still in the facts of this case it cannot be held that Mahila Vidyalaya was a trespasser and GR Harshe was the true owner at the time of filing of the present suit
The sale of the property in question was perfectly valid and as soon as the sale was confirmed in favour of Gopal Rao Mutatkar under Order XXI Rule 92 CPC Govind Rao Harshe had no right or title in the property and Gopal Rao Mutatkar became the owner of the property
The admitted position which is borne out from the records is that Gopal Rao Mutatkar never claimed any right in the property nor took proceedings for obtaining possession by executing the decree
On the other hand he took a clear stand in his written statement filed on 10th March 1948 that he had bit in the auction on behalf of Mahila Vidyalaya and the sale certificate was rightly issued in favour of the Mahila Vidyalaya
919 The apart after the issue of sale certificate in favour of Mahila Vidyalaya it alone was entitled to obtain possession under Order XXI 95 CPC
The appellant Mahila Vidyalaya had filed execution application and possession was given to it on 24th March 1951
Not only that Mahila Vidyalaya got an order for serving notice of ejectment on the tenants from the Rent Controller and all the tenants except Mst
Radha Bai surrendered possession in favour of Mahila Vidyalaya
Not only that a suit for ejectment filed against Mst
Radha Bai and Govind Rao Harshe was also decreed in favour of the appellant Mahila Vidyalaya
In execution of the decree for ejectment Mahila Vidyalaya was trying to obtain possession
Thus by no stretch of imagination can it be said that Mahila Vidyalaya was a trespasser in the facts and circumstances mentioned above
Th High Court in our view did not consider the case in a proper perspective and took a wholly erroneous view in holding that the appellant was a trespasser and Govind Rao Harshe could have filed a suit for possession
The plaintiff Govind Rao Harhse himself had come forward with a plea that the execution proceedings and sale was null and void and unless he was able to succeed in this regard which he did not in the present case no decree for possession could at all have been passed in his favour
Thus we allow the appeal set aside the judgment and decree of the High Court dated 12th December 1974 and dismiss the suit with costs
Y Lal Appeal allowed


Summary:
The first appellant and the first respondent were married at Tirupati on 2721975 according to Hindu Law
They separated in July 1978
The appellant husband filed a petition for dissolution of the marriage in the Sub Court of Tirupati stating that he was a resident of South Claiborn Avenue New Orleans Louisiana and that he was a citizen of India and that he and his wife last resided together at New Orleans Louisiana
Subsequently he filed another petition for dissolution of marriage in the Circuit Court St Louis Country Missouri USA alleging that he has been a resident of the State of Missouri for 90 days or more immediately preceding th filing of the petition by refusing to continue to live with the appellant in the US and particularly in the State of Missouri
But from the averments made by him in the petition before the Sub Judge Tirupati it was obvious that he and his wife had last resided together at New Orleans Louisiana and never within the jurisdiction of th Circuit Court of St Louis Country in the State of Missouri
The respondent wife filed her reply raising her objections to the maintainability of the petition
She also clearly stated that her reply was without prejudice to her contention that she was not submitting to the jurisdiction of the foreign court
The Circuit Court Missouri assumed jurisdiction on the ground that the 1st Appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action in the Court
In the absence of the respondent wife the Circuit Court Missouri passed a decree for dissolution of marriage on the only ground that the marriage has irretrievably down
Subsequent to the passing of the decree by the Circuit Court Missouri the appellant filed an application for dismissal of his earlier petition before the Sub Court of Tirupati and the same was dismissed
823 On 2nd November 1981 the last appellant married appellant No 2
Thereafter the 1st respondent filed a criminal complaint against the appellants for the offence of bigamy
The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Circuit Court Missouri
The Magistrate discharged the appellants by holding that the complainant wife had failed to make out a prima facie case against the appellants
The respondent preferred a Criminal Revision Petition before the High Court which set aside the order of the Magistrate by holding i that a photostat copy of the judgment of Missouri Court was not admissible in evidence ii since the Learned Magistrate acted on the photostat copy of the judgment he was in error in discharging the accused
Accordingly the High Court directed the Magistrate to dispose of the petition filed by the appellants for their discharge afresh in accordance with law
Aggrieved by the decision of the High Court the appellants filed appeal in this Court
Dismissing the appeal this Court HELD 1
The decree dissolving the marriage passed by the foreign court is without jurisdiction according to the as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court
Further irretrievable breakdown of marriage is not one of the grounds recognised by the Act of dissolution of marriage
Hence the decree of the divorce passed by the foreign court was on a ground unavailable under the Act which is applicable to the marriage
Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married and the respondent had not submitted to the jurisdiction of the court or consented to its passing it cannot be recognised by the courts in this country and is therefore unenforceable
828H 829A 828E 834H 835A 2
Residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well
829E Smt
Satya vs Teja Singh  referred to
The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code the Contract ACt the Indian Succession Act the Indian Divorce Act the Special Marriage Act etc
In addition some 824 rules have also been evolved by judicial decisions
In matters of status or legal capacity of natural persons matrimonial disputes custody of children adoption testamentary and intestate succession etc
the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens
Today more than ever in the past the need for definitive rules for recognition of foreign judgments in personal and family matters and particularly in matrimonial disputes has surged to the surface
A large number of foreign decrees in matrimonial matters is becoming the order of the day
A time has therefore come to ensure certainty in the recognition of the foreign judgments in these matters
The minimum rules of guidance for securing the certainty need not await legislative initiative
This Court can accomplish the modest job within the frame work of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose
Though the proposed rules of guidance in this area may prove inadequate or miss some aspects which may not be present to us at this juncture yet a begining has to be made as best as one can the lacunae and the errors being left to be filled in and corrected by future judgments
829H 830A 831C F H 4
The relevant provisions of Section 13 of the CPC are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy justice equity and good conscience and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our social life
832A 41 On an analysis and interpretation of Section 13 of CPC the following rule can be deduced for recognising a foreign matrimonial judgment in this country
The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married
The exceptions to this rule may be as follows i where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married ii where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married iii where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties
834B D 825 5
The High Court erred in setting aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence
In the instant case photostat copies of the judicial record of the Court of St Louis is certified for th Circuit Clerk by the Deputy clerk who is a public officer having the custody of the document within the meaning of Section 76 of the also in the manner required by the provisions of the said section
Hence the photostat copy per se is not inadmissible in evidence
It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act
Therefore the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court
835B E F G 6
The Magistrate is directed to proceed with th matter pending before him according to law as expeditiously as possible preferably within four months
835G