THE HONOURABLE MR v. R.Venugopal2.R.Ganesan @ Vinayagam

person/persons bound by the said decree and further if necessary bybreaking open the locks, if any, put up by the Respondents/Obstructors orperson/persons, bound by the said decree, in accordance with Order XXIR.35(1) & (3) of the C.P.C.3.In the counter filed to the E.P.No.90 of 2002, filed by the firstrespondent and adopted by other respondents, it is inter-alia averred thatthe E.P. is not maintainable either in law or on facts and that therespondents are the grand son and daughters of the original owner of theexecution petition schedule mentioned property and that they have enteredinto a lease with an agreement holder, who had entered into an agreementwith the actual owner of schedule mentioned property viz., grand mother ofthe respondents and hence, the civil revision petitioners/respondents haveno right at all to file the Execution Petition.4.It is also the plea of the respondents that without obtaining anydecree from any Court of law no Execution Petition can be filed and hence,the E.P. has to be dismissed in limini. As a matter of fact, therespondents contend that the French Civil Court was revoked by theGovernment of Pondicherry and hence, the revision petitioners/respondentshave no manner of right to file the present execution petition.5.The learned District Munsif, Pondicherry has passed orders inE.P.No.90 of 2002 on 24.02.2004 inter-alia allowing the Execution Petitionon condition that the civil revision petitioners/respondents to producethe grosse (original) within 3 days and further observed that only then,the delivery would be effected etc.6.According to the learned counsel for the civil revisionpetitioners/respondents, the order of the lower Court is not valid in lawbecause of the fact that the execution petition was entertained underCivil Procedure Code and under French Civil Court, when Civil ProcedureCode, 1908 and the Transfer of Property Act were extended to Pondicherryeven in 1968 and that the lower Court also committed an error that therespondents acquired the right within the meaning of Sub-Section 2 ofSection 4 of the Pondicherry Extension of Laws Act, 1963.7.The further case of the civil revision petitioners/respondents isthat the lower Court has overlooked the fact that the right to execute aWill arise only on the death of the last life estate holder-Radhabai Ammalviz., 29.07.2002 and that the Trial Court has failed to see that themandatory requirement as per law to produce the original document was notcomplied with.8.The learned counsel for the respondents/petitioners before theTrial Court contends that the Execution Petition No.90 of 2002 were filedby the respondents/petitioners in regard to the delivery of possession ofthe E.P. schedule mentioned property to the placing reliance on the basisof a usufractuary gift deed dated 25.04.1934 perpetuated to have beenexecuted by the father of the respondents/petitioners and that the said https://hcservices.ecourts.gov.in/hcservices/ Gift Deed was executed before a Notary, and the said document under FrenchLaw was a Deemed Decree and therefore, the respondents/petitioners arelegally empowered to execute the said decree and to obtain delivery ofpossession of the property from the petitioners /respondents. The learnedcounsel for the respondents /petitioners pointed out before this Courtthat the usufractuary gift deed dated 25.04.1934 was executed in favour ofone Radhabai Ammal, who was the aunt of the respondents/petitioners, whohad the life interest to enjoy the said property along with the life timeof Balasubbammal.9.The learned counsel for the revision petitioners submits that underthe erstwhile French Law, French Legal System enabled a person to executea document without going through the process of regular suit and that on15.09.1992 there was partition Gopal Chettiar and two brothers and that on21.12.1930 the present property was purchased by Ramakrishna and that on25.04.1934 Ramakrishna Chettiar executed a gift deed giving life estate toBalasubbammal and his sister Radhabai Ammal and on 24.09.1965 Ramakrishnaexpired and legal representatives namely, R.Venugopal and R.Ganesan @Vinayagam of Ramakrishna Chettiar filed a suit in O.S.No.8 of 1998 on thefile of the First Additional District Munsif, Pondicherry, praying for therelief of permanent injunction against the defendant, as servants, agentsetc. from demolishing or altering the superstructure or digging the earthor constructing any type of structure in the schedule mentioned premisesand for costs of the suit.10.It is significant to point out that Radhabai Ammal, defendant inthe suit in O.S.No.8 of 1998 has specifically admitted in her evidence asD.W.1 that she had the right of enjoyment and that she could enjoy thesaid house as she desires till her demise. It is the case of the revisionpetitioners that after the death of Radhabai Ammal, the LRs has come byway of present E.P.11.The Pondicherry (Extension of Laws) Act, 1968 was enacted byParliament on 24.05.1968 to extend certain Central Acts to the UnionTerritory of Pondicherry and by virtue of Section 4(1) Repeal and savingprovision any law in force in Pondicherry or any area thereofcorresponding to any Act referred to in Sub-section (1) of Section 3 orany part thereof (except in so far as such law continues to be applicableto Renoncants) shall stand repealed as from the coming into force of thesaid Act in Pondicherry and sub-section(2) of Section 4 enjoyed that;Nothing in sub-section (1) shall affect-(a)the previous operation of any law so repealed or anything dulydone or suffered thereunder; or(b)any right, privilege, obligation or liability acquired, accrued orincurred under any law so repealed; or (c) any penalty, forfeiture or punishment incurred in respect of anyoffence committed against any law so repealed; or (d) any investigation, legal proceeding or remedy in respect of anysuch right, privilege, obligation, liability, penalty, forfeiture orpunishment as aforesaid and any such investigation, legal proceeding or https://hcservices.ecourts.gov.in/hcservices/ remedy may be instituted, continued or enforced and any such penalty,forfeiture or punishment may be imposed as if this Act had not beenpassed: Provided that anything done or any action taken (including anyappointment or delegation made, notification, instruction or directionissued, form, bye-law or scheme framed, certificate obtained, permit orlicence granted, or registration effected) under any such law, shall bedeemed to have been done or taken under the corresponding provision of theAct extended to Pondicherry by this Act and shall continue to be in forceaccordingly unless and until superseded by anything done or any actiontaken under the said Act.12.Section 3 of the Pondicherry (Extension of Laws) Act, 1968provides extension with amendment of certain laws to Pondicherry and thedifferent dates which may be appointed for different provisions of any Actand any reference in any such provision to the commencement of the Actshall be construed as a reference to the coming into force of thatprovision. 13.According to the learned counsel for the civil revisionpetitioners that to enable execution without going to Civil Court is aprocedural Act and it is to be seen that whether Section 4(2) of thePondicherry (Extension of Laws) Act, 1968 preserve such right inspite ofextension of Civil Procedure Code to Pondicherry on 05.09.1968 and on05.09.1968 what are the rights and liabilities accrued to the parties areto be seen and they never had any right when Balasubbammal and RadhabaiAmmal were there and the Trial Court relied on the mortgage deed decisionand there was no evidence to show when Balasubbammal expired and it has tobe seen that whether any right accrued before 05.09.1968 and Section 4(2)of the Pondicherry (Extension of Laws) Act, 1968 was not the same and thatthe respondents/petitioners before the lower Court has to file a suitclaiming their right in law.14.The learned counsel for the revision petitioners/respondentsplaced reliance on the French Civil Code (English Translation Volume I byE.BLACKWOOD WRIGHT, LL.D., Trinity College, Dublin, and of the MiddleTemple, Barrister-at-Law. Under the caption TITLE III OF USUFRUCT, OF THERIGHT OF USER AND OCCUPATION. CHAPTER-I OF USUFRUCT which runs as follows:"578.Usufruct is the right of enjoying the use of thingswhich are owned by another as fully as the owner himself,subject to the duty of keeping intact the subject-matter of suchusufruct. (C.587 and following; 600, 1568, 2108, 2118)579.Usufruct arises through operation of law, or by an actinter parties. (C.384, 754, 899, 917, 949, 1401, 1403, 1422,1530, 1549).580.A usufruct may be created either simpliciter withoutlimitation, or up to a certain day, or subject to conditions.(C.1168).581.A usufruct may be created in respect of any kind ofproperty, movables or immovables. (C.587, 588)." https://hcservices.ecourts.gov.in/hcservices/

15.He also placed reliance to Section 3 of the manner in whichusufruct terminates and pressed into service. 617 which deals with theextinguishment of usufruct by the actual or civil death of theusufructuary, by effluxion of time for which it was granted, etc.16.The learned counsel for the civil revision petitioners/respondentscited AIR 1997 Madras 178 (Shanmugam V. Perumal Naicker and others)wherein it is observed as follows:"Civil P.C. (5 of 1908), Section 4(2) – Execution of decree inFranch Colony, Pondicherry, obtained before commencement ofC.P.C. in the Colony – Law applicable – Code coming into forcebetween publication was ordered and gazetter publication was made– Steps under French Law thereafter are not valid – After cominginto force of Civil P.C., auction purchaser not depositingamounts as per provisions of Order 21, Rules 84 and 85 – Itfollows there was no sale at all – Civil revision filed againstorder for sale and then withdrawn – Principles of res judicata orconstructive res judicata do not apply – Subsequent suit will notbe barred – Auction sale being void, 'mortgager continues to beowner – There being no title in law, no title by adversepossession can be claimed."17.The revision petitioners counsel relied on AIR 1976 Madras 32(Adaikappa Chettiar V. A.Natchiar) wherein it is observed as follows:"(B) Pondicherry (Extension of Laws) Act (1969) Section 4 –Mortgage executed before Notaire executable under the FrenchLaw without recourse to suit – Indian enactments extended toPondicherry by the Pondicherry (Extension of Laws) Act 1968Section 4(1), (2) – Subsequent suit on the mortgage in IndianCourt – Maintainability. (Civil P.C. (1908) section 9 –Mortgage under French law in Pondicherry – Jurisdiction).Under French Law a grosse copy of a notarial mortgagecould be executed as if it were a decree without a suit on themortgage. This right is a substantive and not a procedural oneand could even after the merger of Pondicherry in India, itcould be exercised in the Indian Court praying for sale of thehypotheca straightway. AIR 1973 Cal. 295, Rel. on.But the existence of such a remedy does not bar a CivilSuit on the mortgage in the Indian Court after the merger. Whatsec. 4 does is not to shut out the erstwhile French Citizenfrom having resort to the Indian Civil Court, but to protectand preserve whatever rights and privileges he might have hadunder the French law, which has been repealed. When a person,who enjoyed such a privilege, filed a suit in the ordinaryCivil Court on foot of a notarial mortgage deed, it is theplain duty of the Court to entertain it under Section 9 of theIndian Civil Procedure Code." https://hcservices.ecourts.gov.in/hcservices/

18.In the aforesaid decision at page 33 in paragraph 6 it is held asfollows:"Under the French law, a grosse copy of a notarial mortgagedeed could be executed as if it were a decree granted by a courtof law. There was no need under the French system for themortgagee to file a suit pay court fee on the plaint, obtain apreliminary decree and then a final decree and then put thatfinal decree in execution against the hypotheca. The notarialmortgage deed could be entrusted straightway to a 'huissier' andexecuted in accordance with the French procedure, the details ofwhich I need not go into now. The question arises whether afterthe French Procedure Code was repealed by the Indian CivilProcedure Code, a person in the situation of the plaintiff,holding a grosse copy of a notarial mortgage deed is disentitledunder the Indian law to file a plaint on foot of the deed payingcourt fee thereon and obtain a decree in accordance with theIndian Civil Procedure; but should proceed to enforce thenotarial bond straightway. In fact, learned counsel for theappellant went the length of saying that the Civil Court wouldhave no jurisdiction to entertain the suit filed by the holder ofa notarial mortgage deed on foot thereof. I am entirely unable toagree. The question whether the plaintiff was entitled to executethe notarial mortgage deed without obtaining a decree thereon isone which does not call for adjudication in this appeal, thoughit may not be irrelevant to refer to a Full Bench decision of theCalcutta High Court in Susama Bala V. Bibhuti Bhushan AIR 1973Cal 295. There it has been held that a grosse copy of a notarialmortgage deed could be executed even after the Indian law hascome into force without a decree being obtained. According to theFull Bench of the Calcutta High Court, the right obtained underthe grosse copy of the notarial mortgage deed is a substantialright and not a procedural one and it must be preserved under theIndian law after the merger. According to the learned Judges, aperson in the position of the plaintiff could execute Ex.A.1 asif it were a decree by filing an execution petition in the Indiancourt and praying for the sale of the hypotheca straightaway.Upon this question, I do not wish to pronounce any opinion. Thedistinction between substantive rights recognised by French lawand mere procedural rules of French law will have to be drawnsagaciously with regard to the relevant circumstances of eachcase and the distinction cannot be exhaustively illustrated invacuo. For instance, the requirement of French law that notice ofthe deposit of 'Cashierdes cahrges' shall be served on the debtorand all the creditors and othr persons mentioned in Article 692of the Code de Procedure Civile is a matter of substance andought to be complied with by the Indian courts acting within theframe work of the Indian Civil Procedure Code. But therequirement of the French law that the service of notice, shallbe effected through huissiers is merely a procedural matter, https://hcservices.ecourts.gov.in/hcservices/ which the Indian Courts can ignore. No litigant can be heard tosay that service by process servers under the watchfulsupervision of the Indian courts is less efficacious than serviceby French huissiers. There may, however, be intermediate casessuch as the imposition of time limits by French law withreference to service of notices. It is for the Judges to considerjudicially whether such time limits affect the substance of thething or are merely procedural in character. The 'substantive'may shade off imperceptible degrees into the 'procedural' and itis for the Court to draw the line between the two, rememberingthe purpose of the distinction. The right to execute a notarialmortgage deed straightway without filing a plaint, paying courtfee, obtaining decree and exposing the claimant to the dilatorytactics of his opponent is, I fancy, a valuable right and asubstantive right. But the question is whether the holder of acopy of a notarial mortgage deed is confined under the Indian lawto the remedy which he had under the French law. What Section 4(20 of the Pondicherry (Extension of Laws) Act, 1968, says isthat nothing in sub-section (1) shall affect any right,privilege, obligation etc. acquired or accrued under the Frenchlaw that has been repealed. There is nothing in this sectionwhich shuts out the person who has acquired such a right underthe French law from the portals of the Indian Courts and from theremedy to which, under the Civil Procedure Code and under theIndo-Anglian system of jurisprudence he would undoubtedly beentitled to. A holder of a mortgage, although it has been grantedunder the French law and procedure, is certainly entitled underthe Civil Procedure Code to file a suit in accordance with theprocedure thereof. Section 9 of the C.P. Code says that the Courtshall (subject to the provisions herein contained) havejurisdiction to try all suits of a civil nature excepting suitsof which their cognisance is either expressly or impliedlybarred. It is not contended by the learned counsel for theappellant that the suit filed by the plaintiff in the court belowis not a suit of a civil nature. What he contends is thatinasmuch as the plaintiff had an alternative remedy under theFrench law to proceed to enforce the notarial mortgage deedwithout resort to a court of law, it is not competent for him tofile a suit on Ex.A.1 in the Indian Court and obtain a decree inaccordance therewith. It is indeed an irony that this argumentshould come out of the mouth of the defendant who has fullyexploited the opportunity given to him by the plaintiff. If theplaintiff had chosen to enforce her privilege under the Frenchlaw by putting the notarial mortgage deed in executionstraightway, the defendant would not have had the opportunity ofdragging on the proceedings for nearly five years and raising thedefences which under the French law he could not raise. WhatSec.4 of the Pondicherry (Extension of Laws) Act, 1968 does isnot to shut out the erstwhile French citizen from having resortto the Indian Civil Court, but to protect and preserve whatever https://hcservices.ecourts.gov.in/hcservices/ rights and privileges he might have had under the French law,which has been repealed. When a person, who enjoyed such aprivilege, filed a suit in the ordinary civil Court on foot of anotarial mortgage deed, it is the plain duty of the Court toentertain it under Section 9 of the Indian Civil Procedure Code.The argument that the court has no jurisdiction to entertain thesuit or that the plaintiff has no remedy open to her under theIndian law by way of enforcing the mortgage in an action of thiskind is to disregard the nature and amplitude of the savingprovisions of the Pondicherry (Extension of Laws) Act, 1968, Ihave little hesitation in rejecting this contention of theappellant and in holding that even though the plaintiff mighthave had the alternative relief of enforcing the mortgage as ifwere a decree without resorting to an action in a Civil Court,undoubtedly she shared with the other Indian citizens the rightto file a suit on the mortgage deed in a Civil Court, obtain adecree and then proceed to execute it."19.The learned counsel for the revision petitioners/respondents drewthe attention of this Court by placing reliance on the following passageat page 183 from the Book titled in THE FRENCH LEGAL SYSTEM AND ITS INDIANCONNECTIONS By Justice Dr.DAVID ANNOUSSAMY, Visiting Professor, NationalLaw School Formerly Chief Judge, Pondicherry Judge, High Court, MadrasVice-Chairman, Central Administrative Tribunal which runs as follows:"Similarly, when the French civil law happened to beadministered in English language the right of usufruct wastranslated as life estate or limited estate. But those conceptsare different from the usufruct in respect of which the CodeCivil otherwise reputed for its brevity contains 47 articles. Asdefined by the Code Civil in Article 578, it is the right ofenjoying the use of things, which are owned by another, as fullyas the owner himself, subject to the duty of keeping intact thesubject-matter of such usufruct. The French have split the rightof ownership into two separate rights, the right of bareownership and the right of usufruct. Each can vest in twodifferent persons who can deal with it and dispose of it as theyplease. The fragmentation of right in French Law: can last evenafter the first beneficiaries had ceased to hold theirrespective rights. In a life estate also there is also afragmentation of right. But both do not have concomitant rightsas in the case of usufruct. So the rights and obligations in thecase of usufruct and life estate are quite different;assimilating the one to the other is conducive to errors."20.The learned counsel for the revision petitioners/respondentssubmits that copies of notarial acts are of two kinds: (i) common copies,or expeditions, and (ii) executory copies, or grosses and a grosse is acopy bearing the formule executoire and the 'executory formula' which isthe same in the case of a notarial act as in that of the decree of a courtof law, is an order addressed to all huissiers and other agents of la https://hcservices.ecourts.gov.in/hcservices/ force publique, directing them to give coercive effect, on request, to thecovenants of the instrument, etc.21.It is pertinent to refer that the Usufructory Gift Deed dated25.04.1934 (Translation from Franch to English) executed byRamakichenachettiar in favour of his mother Balasoubbammalle daughter ofVenouchettiar and wife of the said Gobalacucheetiar and 2 of his sisterRadhabayeammalle alias Leelailabaye daughter of the said lateGobalochettiyar and widow of mr.Zeganadam chettiar. In respect of theusufruct of the brick built partly tiled and partly tarraced houseformerly bearing the No.79 and at present No.77 situated at the saidGalisparincovil Street, Pondicherry with certain conditions. The saidUsufructory Gift Deed dated 25.04.1934 has conditions:'(i)The said ladies Balasoubbammalle and Radhabayeammal aliasConzilabaye shall jointly and together have during their respective lifetimes, the enjoyment of the said house without having the right to sell,mortgage or gift it;(ii)After the death of the said ladies Balasoubbammale andRadabayeammalle alias Couzilabaye the said house shall return to thedonor, whereas the usufruct above mentioned shall come to an end by thedeath of the usufructories.'22.It is to be noted that 'the individuals Balasoubbammalle andRadhabayeammalle alias Couzilabaye after reading and interpretation of allthe preceding by the undersigned notaire (Mr.Ragounada Periasamy notare inthe jurisdiction of Pondicherry) have formally declared by the present toaccpet the usufructory gift of the said house made in their favour bytheir favour son and brother Ramakichena chettiar, by virtue of thepresent and undertake to conform to the conditions under which the presentgift is made', as seen from the recitals of the said document.23.The learned counsel for the respondents/petitioners submits thatalready a Decree was in favour of the respondents/petitioners and whatremains to be done is that the execution of the Decree and it is not as iffiling of fresh suit is the only remedy and that if second suit is to befiled then the respondents/petitioners would have no defense at all.24.It is also further contended on behalf of therespondents/petitioners that the Execution Petition No.90 of 2002 filedbefore the learned Principal District Munsif, Pondicherry under CivilProcedure Code was only a procedural one and not obtained under French Lawand the procedure to be adopted now is Civil Procedure Code and a decreepassed long ago is enforceable in law and the same is valid and theposition of the civil revision petitioners are that of permissiveoccupation.25.According to the learned counsel for the respondents/petitioners,the Gift Deed dated 25.04.1934 was executed before the notary, which hasthe force of a decree and in support of the said contention placedreliance on the decision reported in AIR 1973 Calcutta 295 (Susama Bala https://hcservices.ecourts.gov.in/hcservices/ Sur V. Bibhuti Bhusan Mondal) wherein it is observed as follows:"Index Note:-(A) Civil P. C., Section 2(2) – Decree –Grosses copy of a Notarial Mortgage Bond executed under theFrench Law has the force of a decree. (X-Ref:- Chandernagore(Merger) Act (1954), Section 18(2)). (X.Ref:- Chandernagore(Application of Laws) Order (1950), Paras 7 and 8). (X-Ref:-Chandernagore (Administration) Regulation (1952), Regln.8)."26.In the aforesaid decision at page 296 and 297 in para 12 it isheld as follows:"12.It has already been noted that a Notary under theFrench Law had to deliver a Grosses copy of a mortgage bondexecuted and filed before him in executory form by virtue ofArticle 545 of the French Civil Procedure Code. Such a grossescopy in executory form could be executed as a decree inaccordance with the French Laws prevalent in Chandernagore andthe holder of such a grosses copy could put the same intoexecution without having to file any suit for the enforcement ofthe mortgage. In the instant case the French Bond was executedon September 2, 1949, and was dated the same day. Upon suchexecution of the Notarial Mortgage Bond and delivery of agrosses copy thereof to the mortgagee the mortgagee acquired aright to execute the same without having to file a suit for theenforcement thereof. Upon the coming into force of theChandernagore (Application of Laws) Order, 1950, such FrenchLaws as corresponded with the statutes mentioned in the scheduleto the said order stood repealed. Nonetheless the existingrights of parties on that date including the right of therespondent mortgagee to execute the said grosses copy of theMortgage Bond without having to file a suit therefore werepreserved by the saving clause contained in the para 7 of thesaid order. According to the provisions of the said order,neither the French Laws nor the French Code or Procedure intheir entirety ceased to be operative but only so much of itceased to be in force as corresponded to the statutes stated inthe Schedule or subsequently added to the schedule."27.At this juncture, it is relevant to make a mention that there isno vested right in procedure. As a matter of fact, in AIR 1973 Calcutta295 (Susama Bala Sur V. Bibhuti Bhusan Mondal) at special page 297 it iscategorically observed that 'a grosses copy of a Notarial Mortgage Deedcould be executed as a decree has been held in the unreported case of GourMohan V. Gokul Chandra, F.M.A.No.50 of 1953 (Cal.), a decision of S.R.DasGupta J. and Mullick J. of January 20, 1955.'28.The pith and substance of the contention advanced by the learnedcounsel for the respondents/petitioners is that in the case on hand beforeus, the Usufructory Gift Deed dated 25.04.1934 was executed before theNotary and the same is in the manner of a decree passed by a competentCourt of law, which has the force of a decree under the French Law and https://hcservices.ecourts.gov.in/hcservices/ also under Indian Law and the mode of executing the same is only by meansof Execution, is correct in law in the considered opinion of this Courtand therefore, the contention of the civil revisionpetitioners/respondents that the Usufructory Gift Deed dated 25.04.1934executed before the Notary was not a decree passed by a competent Court oflaw and therefore, it has no force of a decree under French Law and IndianLaw is not accepted by this Court.29.The learned counsel for the respondents/petitioners produced theEnglish Translation of "CODE DE PROCEDURE CIVILE" (In French) before thisCourt and pressed into service Chapter VI of General Rules on forcedexecution of judgment and acts Art.545 which enjoins as follows:"No judgment or act shall be put into execution if they donot bear the same title as the laws and are not ended by anorder to the law officers as provided for in Art.146." and also placed reliance an Article 145 which runs as follows:"The certified copy of the judgment shall begin andterminate in the name of the King in conformity Art,48 of theConstitutional Charter." 30.In the English Translation by Notary of the French Arrete:-Article 1 of the English Translation speaks of that 'the provision ofnotariat which is organised in the french settlements in India accordingto the provisions of this decret.'31.Article 2 (English Translation) specifies that 'the notaries arepublic officers appointed to record all deeds and contracts to which theparties should or wish to have given the authentic character attached tothe deeds of public authority and in order to assure for them the date, tokeep them in custody and to issue from them the engrossed and authenticcopies.'32.Article 20 in regard to the provision of notariat enjoins that'all notarial deeds are conclusive evidence before court about theagreement they contain between the parties contracting and their heirs ofbeneficiaries and they are enforceable in the whole area of territory ofRepublic and in all the french possessions.'33.Article 26 of the French Arrete English Translation refers to theengrossed copies only that are issued with execution formula, and they aretitled and ended with the same terms as the courts judgments.'34.Article 37 of the French Arrete (English Translation) refers tothe number of notaries in Pondicherry commune as 1 and Article 39 statesthat 'there will be only one notary in each french settlement ofChandernagor, Mahe and Yanam.35.In the Pondicherry Code Volume-I (published by the Law Department,Government of Pondicherry) The Schedule (See Section 1(3) para 1) page 350refers the year 1952, No.53 as the Notaries Act, 1952. https://hcservices.ecourts.gov.in/hcservices/

36.The Pondicherry (Administration) Act, 1962 (Act 49 of 1962) dated05.12.1962, to provide for the administration of Pondicherry and formatters connected therewith, definition Section 2 (b) refers to'"appointed day" meaning the 16th day of August, 1962, being the date ofentry into force of the Treaty of Cession.'37.Section 4(1) of the Pondicherry (Administration) Act, 1962 relatesto continuance of existing laws and their adaptation which states that'all laws in force immediately before the appointed day in the formerFrench Establishments or any part thereof shall continue to be in force inPondicherry until amended or repealed by a competent or other competentauthority:......'38.Further more, Section 4(2) of the Pondicherry (Administration)Act, 1962 speaks thus 'for the purpose of facilitating the application ofany such law in relation to the administration of Pondicherry and for thepurpose of bringing the provisions of any such law into accord with theprovisions of the Constitution, the Central Government may, within threeyears from the appointed day, by order, make such adaptations andmodifications, whether by way of repeal or amendment, as may be necessaryor expedient and thereupon every such law shall have effect subject to theadaptations and modifications so made.'39.In the Pondicherry Code Volume-I (Published by the Law Department,Government of Pondicherry), the Pondicherry (Laws) Regulation, 1963 (No.7of 1963) which speaks of extending certain laws to the Union territory ofPondicherry, Section 4 the Repeal and saving enjoins as follows:"Repeal and saving:-(1) Any law in force in Pondicherry orany area thereof corresponding to any Act referred to in section3 shall stand repealed as from the coming into force of such Actin Pondicherry; and all the laws specified in the Second Scheduleare hereby repealed.(2)Nothing in sub-section (1) shall affect-(a)the previous operation of any law so repealed or anythingduly done or suffered thereunder; or(b)any right, privilege, obligation or liability acquired,accrued or incurred under any law so repealed; or......."40.The Pondicherry Civil Courts Act, 1966 (No.12 of 1966), an Act toconsolidate and amend the law relating to the Civil Courts in the Unionterritory of Pondicherry, Section 6 refers as follows:"Courts under the Act to be successors to existing Courts.-(1)The Tribunal Superieur d' Appeal, Courts of Tribuanl de lereInstance and Juge de Paix existing immediately before thecommencement of this Act shall be respectively the first Courtof the District Judge, Subordinate Judge's Court and Munsif'sCourt under this act." https://hcservices.ecourts.gov.in/hcservices/ Moreover, Section 8(1) of the Pondicherry Civil Courts Act, 1966 statesthat (1)The jurisdiction of District Judge or Subordinate Judgeextends, subject to the rules of procedure contained in the lawrelating to procedure for the time being in force, to alloriginal suits and proceedings of a civil nature.(2)The jurisdiction of a Munsif extends to all like suitsand proceedings not otherwise exempted from his cognizance, ofwhich the amount or value of the subject matter does not exceedfive thousand rupees:Provided that the Government may, by notification in theOfficial Gazette, increase the jurisdiction to ten thousandrupees.41.It is useful to refer that the Treaty of Cession of the FrenchEstablishments of Pondicherry, Karaikal, Mahe and Yanam, Article 14 refersto "Legal proceedings instituted prior to the 1st of November1954 shall be judged in conformity with the basic legislationand procedure in force at that time in the Establishments.To this end, and up to final settlement of suchproceedings, the existing courts in the Establishments shallcontinue to function. Officers of the Court shall be lawgraduates, habitually domiciled in the Establishments,honourably known and selected in accordance with the Frenchregulations governing the designation of temporary judicialofficers.The interested parties shall be entitled, if they so decideby common agreement, to transfer to the competent Indian Courts,the said proceedings as well as proceedings which, thoughalready open, are not yet entered with the Registrars, theFrench Courts and also proceedings which constitute an ordinaryor extraordinary appeal.Judgments, decrees and orders passed by the French Courts,prior to the 1st of Novermber 1954, which are final or may becomeso by expiration of the delays of appeal, shall be executed bythe competent Indian authorities. Judgments, decrees and orderspassed after the 1st of November 1954 in conformity with thefirst paragraph of the present article shall be executed by thecompetent Indian authorities, irrespective of the Court whichexercise the jurisdiction.Acts or deeds constitutive of rights established to the 1stof November 1954 in conformity with French law, shall retain thevalue and validity conferred at that time by the same law."42.The learned counsel for the respondents/petitioners cited thedecision reported in (2001) 1 M.L.J. 189 (S.C.) (Ratasingh v. Vijayasinghand others) wherein it is observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "Normally a decree or order becomes enforceable from itsdate. But cases are not unknown when the decree becomesenforceable on some further date on the happening of certainspecified events. The expression "enforceable" has been used tocover such decrees or orders also which become enforceablesubsequently."43.The learned counsel for the revision petitioners/respondents putforward a plea before this Court that the respondents/petitioners willhave the right to recovery and that will commence only after the death ofRadhabai Ammal and not in the year 1968. He further submitted that afterthe death of Radhabai Ammal the right of enjoyment comes to an end. As amatter of fact, according to the learned counsel for the revisionpetitioner, the right of respondents/petitioners to recover possessiononly blossoms in the year 2002 when Radhabai Ammal died and not beforethat. 44.In AIR 1936 Madras 543 (Periakatha Nadar V. Mahalingam) it is heldas follows:"(a) Civil P.C. (1908), O.21, R.16-'Operation of Law.'meaning.The words, "operation of law" cannot apply to a case wherea person has become the owner of a decree by some transactioninter vivos.(b)Civil P.C. (1908), O.21, R.16-No particular form ofassignment is prescribed.No particular form of assignment is prescribed in the caseof decrees either under O.21, R.16 or by any other provision oflaw. Anything in writing which transfers a decree and clearlyshows that the intention was to assign the decree is sufficient.What is required is an assignment in substance which is inwriting." 45.In AIR 1959 Punjab 71 (Punjab Co-op. Bank V. Bikram Lal) it isheld that "Procedure is a handmaid and not mistress of law and rulesof procedure should subserve and not govern. Procedure is only achannel to administer law and it should not be instrumental inimpleading or obstructing justice; rules of procedure shouldalways be utilised for advancing and not for defeating the causeof justice."46.In AIR 1958 SC 394 (Saila Bala Dassi V. Nirmala Sundari) it isobserved as follows:"(b) Civil P.C. (1908), S. 146, O. 22, R.10 – Scope ofS.146.An appeal is a proceeding for the purpose of S.146 andfurther the expression "claiming under" is wide enough toinclude cases of devolution and assignment mentioned in O.22, https://hcservices.ecourts.gov.in/hcservices/ R.10. Whoever is entitled to be but has not been brought onrecord under O.22, R.10 in a pending suit or proceeding thedecree or order passed therein if his assignor could have filedsuch an appeal, there being no prohibition against it in theCode. AIR 1919 Mad 755 (2) Approved; (S) AIR 1955 SC 376 Foll.Anno: AIR Com.C.P.C. S.146, N.2, 5, 8; O.22, R.10, N.2."47.In AIR 1960 Calcutta 623 (Jatindra Mohan Banerjee V. Kali Charan @Kalipada Sarkar) it is held thus"Civil P.C. (1908), Ss.146, 47, O.21 R.32 – Representativesuit – Decree for injunction – Execution against parties not onrecord – Can be ordered under S.146 – Applicability of S. 47(3).A decree for injunction obtained against the defendants ina representative suit can be executed, under O.21 R.32, againstthose defendants who were not eo nomine parties to the suit.Though such defendants are neither the legal representatives northe transferees within the meaning of O.21 Rr.16 and 22, yet asthe execution proceeding is a proceeding within the meaning ofS.146, it can proceed against such defendants as they claim thesame title under or are equally interested as the defendants whowere parties on record to the suit. And any finding by theexecution Court on the objections raised by such defendants onmerits will fall within the scope of S.47(3), (S)AIR 1955 SC 376and AIR 1958 SC 394, Foll;(S)AIR 1955 All 385 and AIR 1942 Lah136, Ref.; (S) AIR 1955 Mad 281 (FB), Not foll."48.In AIR 1955 S.C. 376 (Jugalkishore V. Raw Cotton Company) it isobserved as follows:"(b) Civil P.C. (1908), O.21, R.16 – Equitable assignment.The first thing that strikes one is the sequence of eventscontemplated by O.21, R.16. It postulates first, that a decreehas been passed and secondly, that that decree has beentransferred (i)by assignment in writing or (ii) by operation oflaw."49.It is not out of place to make a significant mention that Ex.P.3,Usufructory Gift Deed dated 25.04.1934 provides for Balasoubbammalle andRadabayeammale to enjoy the property bearing present No.77 situated atGalisparincovil Street, Pondicherry during their respective life timeswithout a right to sell mortgage or gift the same and after the death oftwo individuals referred to above, the said house shall return to thedonor and that the usufruct shall come to an end by the death of theusufructories. There is no evidence to show when Balasoubbammalle expired.Radabayeammalle, the life interest holder expired on 29.07.2002, asevidenced by Ex.P.1-Death Certificate issued by the PondicherryMunicipality on 13.08.2002. Ex.R.3 is the Death Certificate ofRamakichenachettiar and his date of death is 24.09.1965, as seen from theDeath Certificate issued by the Pondicherry Municipality dated 21.07.2003. https://hcservices.ecourts.gov.in/hcservices/ Ex.R.2 is the Birth Certificate of first respondent Vengattaramin and hisdate of birth is 29.11.1964.50.In the Executing Court, the first civil revision petitioner/firstrespondent has filed counter to the E.P.No.90 of 2002 filedrespondents/petitioners. In the counter, it is specifically averred atpara 4 that 'the civil revision petitioners/respondents are the Grand sonand daughters of the original owner of the E.P. Schedule mentionedproperty and that they have also entered into a lease with one agreementholder, who had entered into an agreement with the actual owner of E.P.schedule mentioned property namely, grand mother of these respondents.'The respondents/petitioners father Ramakichenachettiar has executed theUsufructory Gift Deed dated 25.04.1934 wherein Balasoubbammalle andRadabayeammalle are given the right of enjoyment of the house during theirlife terms. It is pertinent to point out that Radabayeammalle is noneother than the aunt of the respondents/petitioners.51.The Executing Court in its order passed in E.P.No.90 of 2002 on24.02.2004 has held that 'the respondents/petitioners filed ExecutionPetition as LRs of the donor and that Section 146 and Order 21 rule 16provide for it and that there is no contra evidence, contra plea to showthat respondents/petitioners are not the legal heirs of the donor andaccepted the plea of the respondents/petitioners.'52.When a specific plea has been raised in the counter to E.P.No.90of 2002 filed by the first civil revision petitioner/first respondent andadopted by other civil revision petitioners/respondents that they are theGrand son and daughters of original owner of the E.P. Schedule mentionedproperty and when the respondents/petitioners claim that their father hasexecuted the Usufructory Gift Deed dated 25.04.1934 then it is incumbenton the part of the Executing Court to give a definite and clear-cutfinding as to the issue of legal representatives. In the present case onhand, the Executing Court in its order dated 24.02.2004 passed inE.P.No.90 of 2002 has not adverted to the plea of the civil revisionpetitioners/ respondents raised in para 4 of the counter that they are theGrand son and daughters of original owner and therefore, this Court is ofthe considered view that the issue of legal representatives is to bedecided first by the Executing Court and later the Executing Court is todecide about the issue of executability of the Deemed Decree. 53.Section 2(11) of Civil Procedure Code defines "legalrepresentative" which means a person who in law represents the estate of adeceased person, and includes any person who intermeddles with the estateof the deceased and where a party sues or is sued in a representativecharacter the person on whom the estate devolves on the death of the partyso suing or sued. It cannot be gainsaid that the Pondicherry Civil CourtsAct, 1966 was amended by Act 5 of 2005 on 15.7.2005 which deals about thejurisdiction of District Judge, Subordinate Judge and District Munsif inOriginal Suits etc. Indeed Section 4 of the Pondicherry Civil Courts(amendment) Act, 2005 speaks of transitory provisions. https://hcservices.ecourts.gov.in/hcservices/

54.Inasmuch as the issue of "legal representatives" is to bedetermined by the Executing Court viz., the Principal District Munsif,Pondicherry in E.P.No.90 of 2002 this Court remits the matter back to theExecuting Court viz., Principal District Munsif, Pondicherry and thelearned District Munsif, Pondicherry is directed to decide the issue oflegal representative as defined under Civil Procedure Code in E.P.No.90 of2002 and then the learned District Munsif, Pondicherry is also furtherdirected to decide about the issue of executability of the Deemed Decreein the case on hand in the manner known to law and in that view of thematter, the Civil Revision Petition is allowed. The 3 days time granted bythe learned District Munsif, Pondicherry to produce the grosse (original)is affirmed by this Court. The learned Principal District Munsif/ExecutingCourt is further directed to dispose of the E.P.No.90 of 2002 on his filewithin four months from the date of receipt of copy of this order,providing opportunities to both parties to adduce oral and documentaryevidence in accordance with law. Conseqeuntly, connected miscellaneouspetition is closed. There shall be no order as to costs.sglSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Principal District Munsif, Pondicherry.2. The Record Keeper, V.R.Section, High Court, Madras.+1 cc to Mr.R.Subramanian, Advocate Sr.No.74438.NG(CO)DCP/3.1C.R.P.(NPD).No.730 of 2004