M.L. Joshi, J.
1. This is a special appeal under Section 18 of the Rajasthan High Court Ordinance directed against the judgment of learned Single Judge dated 28th September. 1965, whereby he allowed the appeal of the respondent and held the house of the appellant-judgment debtor saleable in execution of the decree passed by the Churu Court on 20-4-1950 against Jivan-mal judgment-debtor.
2. The facts which are relevant (for appreciating the controversy in this appeal briefly stated are: Messrs Chunilal Hajarimal lent a sum of Rs. 5000/-to the appellant No. 2 at Calcutta. The said creditor instituted a suit No. 80 of 1947-48 at. Churu for the recovery of the amount, and not the house of Jivanmal appellant attached before judgment. This suit was decreed for Rs. 5048.40 with costs on 29-4-1950.
3. During the pendency of the suit Jivnnmal appellant was adjudged insolvent by the order of the Calcutta High Court on 16-9-1949. Official Assignee of the Calcutta High Court was appointed Receiver of the properties of the respondent Jivanmal including his house at Churu by an interim order of the Calcutta High Court on 14-2-1949. After obtaining decree at Churu the ap-pellants put the decree into execution and prayed for sale of the attached house on 11-5-1950 in execution case No. 78 of 1951. On 29-5-1950 the execution court ordered that since judgment debtor had been adjudged insolvent the decree-holder should implead the Official Assignee as a party to the execution application. This order was challenged by the decree-holder by way of appeal but the appellate Court also upheld the order and dismissed the appeal holding it to be barred by time and further holding that, the Official Assignee was necessary party. The execution proceedings continued in the executing Court despite the failure of the decree-holder to implead the Official Assignee, On 15-9-1951, the executing Court dismissed the first execution application as unsatisfied. On 8-9-1954, the second execution application was filed. In this application too, the Official Assignee was not impleaded. The judgment-debtor filed an objection that the house had vested in the Official Assignee and could not be sold in the execution of the decree. The objection was overruled by the executing Court In its order dated 17-3-1958 on the ground that the Calcutta High Court was a foreign, court when the order of, ad-indication was made by it. Dissatisfied the judgment-debtor preferred an appeal before the District Judge. Bikaner, who accepted the appeal on 15-12-1959 and remanded the case directing the decree-holder appellant to implead the official assignee and after serving notice upon him should decide whether the attached house could be sold in the execution of the decree. In the meantime the third execution application No. 119/58 was filed on 6-11-1958 that too without impleading the Official Assignee. This application was dismissed on 5-3-1960 for want of supplying process-fee etc. The fourth execution application No. 33 of 1960 was presented in the execution Court on 15-3-1960 in accordance with the order of the appellate Court dated 15-12-1959. In this application of course the Official Assignee was made a party for the first time. The Official Assignee filed objection as to the maintainability of the execution application as barred by time against him. This application was dismissed on 28th of August, 1961 by the Senior Civil Judge. Churu, holding that the same was barred because in spite of the order dated 29-9-1950 by the executing Court a period of nearly 10 years had elapsed between the passing of the decree and joining the Official Assignee Calcutta as a party to the execution proceedings, and, therefore, the execution application stood barred by time against the Official Assignee. On appeal the judgment of the Senior Civil Judge was upheld by the District Judge. Bikaner by his judgment dated 24th of May, 1963. Being dissatisfied with the judgment of the District Judge Bikaner, the respondent decree-holder preferred a second appeal in the High Court which was heard by a Judge sitting in the Single Bench. The points canvassed were whether the property had vested in the Official Assignee and whether the debt. had been wiped out an account of the discharge of the insolvent. On both the points the learned fudge found against, the appellants. It was held that the Churu Court in whose jurisdiction the property in question was stuate was a 'foreign court at the time of the massing of the adjudication order and, therefore, the property had not vested in the Official Assignee of Calcutta High Court. It was further held on the basis of the decisions reported in Abdul Kuthus v. Inayathulla, AIR 1937 Mad 727 and Jubilee Bank v. Santimoyee Debi, AIR 1950 Cal 487 that the debts even if they are provable in insolvency were not extinguished and the decree-holder-creditor of the insolvent could proceed against the estate of the insolvent situate in foreign territory at the relevant time. On the above finding the learned Single Judge accepted theappeal of the respondent and held that the house of the judgment-debtor-appellant was liable to be sold in the execution of the decree of the respondent. On a prayer being made on behalf of the judgment-debtor for leave to appeal to the Division Bench, the leave was granted and in consequence thereof both the Official Assignee and the judgment-debtor Jivanmal have come up in special appeal before us.
4. Mr. H. C. Jain learned counsel for the appellants challenged the judgment of the learned Single Judge on the following grounds:--
(1) That the application of the decree-holder-respondent was barred by time as the previous, three applications made prior to the present fourth application, were not in accordance with law in as much as on the passing of the adjudication order against appellant Jivanmal on 6-9-1949 the property had vested in the Official Assignee of the Calcutta High Court who was a necessary party to the previous execution application but he was not impleaded in those applications:
(2) That the appellant Jivanmal was discharged on 23-6-1955 by the Calcutta High Court and all his liabilities including the decretal debt in question stood wiped out and could not be enforced by way of an execution application.
5. Before we deal with the contentions of the learned counsel for the appellants, we may dispose of a preliminary objection raised by Mr. S. C. Bhandari on behalf of the respondent-decree-holders to the effect; that the appeal filed by the appellant was incompetent as the same was not presented by authorised persons. Mr. Bhandari in support of his preliminary objection contended that the present appeal was filed by Mr. H. C. Jain and Mr J. K. Jain under a memo of appearance without a valid power of attorney in their favour in the special appeal. He submitted that although Mr. H. C. Jain and Mr. J. K. Jain were counsel in the first appeal before the learned Single Judge under a valid power of attorney but the same did not hold good so as to entitle them to present the present appeal. In this regard he invited our attention to Order 3, Rule 4 of the Code of Civil Procedure. The argument, of the learned counsel in this behalf is that under Order 3, Rule 4 an advocate representing in the suit may file the appeal as the appeal has been treated under the deeming provisions of Rule 4 of Order 3, C. P. C. to be the continuation of a suit, but the power of attorney filed in the first appeal cannot bold good to enable them to file the special appeal It was submitted that the provisions ofOrder 3. Rule 4. C. P. C. were self contained and did not authorise the counsel filing the power of attorney in the first appeal to confer authority on them to present the special appeal. It was submitted that, the act of presentation is not merely pleading but acting on behalf of the client which could only be valid if the counsel had a valid power of attorney to act in the special appeal- The memo of appearance filed along with the special appeal, was not sufficient for the compliance of Order 3 Rule 4. Civil P. C. and the counsel presenting the appeal had, therefore, no authority to present the appeal Mr. H C. Jain on the other hand submitted that the power of attorney presented in the first appeal was comprehensive and conferred authority upon them even to file the special appeal Ho submitted that the strict interpretation should not be taken to defeat the appeal which was other-wise valid. He also referred to Rule 436 of the High Court Ruler, which provides that one power of attorney in the High Court will be sufficient for authorising the counsel to act in the litigation. Rule 436 of the High Court Rules runs as under.-
'436 Power under a Vakalatnama. One Vakalatnama shall be sufficient to enable the person empowered to act in all proceedings of a case including execution decree.'
Having carefully considered the rival contentions of both the sides we are of the opinion that the preliminary objection raised, on behalf of the respondent cannot be upheld It is not in dispute that both the Advocate who presented, this appeal held valid power of attorneys from the respective appellants in the appeal before the learned Single Judge We have also perused the power of attorneys and having perused the same we feel that the power of attorneys are couched in comprehensive manner so as to authorise the Advocates to present this appeal before us. Looking to the amplitude of the terms in which the power of attorneys are couched we are not inclined to take too technical view of the matter and throw the appeal on that ground Moreover Rule 436 of the High Court Rules also comes to the aid of the appellants as it dispenses with the filing of the second power of attorney if the counsel for the appellants had been authorised by a valid power of attorney to act in the High Court The intention behind the Rule 430 appears to us to dispense with the filing of fresh Vakalatnamas by the Advocates once it was established that they had a power to act in first appeal before this High Court. In these circumstances we are not impressed with the preliminairy objection raised by the learned counsel forthe respondent. We therefore overrule the preliminary objection raised on behalf of the respondents.
6. Coming to the merits of the appeal we may first deal with the contention of the learned counsel that the execution application was barred by time. The argument of the learned counsel proceeds on twofold basis. Firstly, it was contended that the property had vested in the Official Assignee on the appellant Jivanmal being adjudged insolvent in the year 1949 and, therefore, the Official Assignee was a necessary party; and secondly, in the previous execution application the executing Court by its order dated 29-5-1950 on the objection of the appellant Jivanmal had held the Official Assignee to be a necessary party. The decree-holder respondent challenged this order of the execution Court by way of appeal but the order was confirmed by the appellate Court and it had become final. It was, therefore, not open to the decree-holder to again re-agitate the point that the Official Assignee was not a necessary party on account of the bar of the principle of res judicata against them. We may first take up the question as to whether the property had vested in the Official Assignee. In order to determine this question, it will be relevant to read Section 17 of the Presidency Towns Insolvency Act which runs as under:--
'Section 17. Effect of Order of adjudication:--
On the making of an order of adjudication, the property of the insolvent wherever situate shall vest in the Official Assignee and shall become divisible among his creditors, and thereafter, except as directed by this Act, no creditor to whom the insolvent is indebted in respect of any debt provable in insolvency shall during the pendency of the insolvency proceedings, have any remedy against the property of the insolvent in respect of the debt or shall commence any suit or other legal proceedings except with the leave of the Court and on such terms as the Court may impose. Provided that this section shall not affect the power of any secured creditor to realize or otherwise deal with his security in the same manner as he would have been entitled to realize or deal with it if this section had not been passed.'
According to this section it will appear that on the making of an order of adjudication the property of the insolvent wherever situate shall vest in the official assignee and shall become divisible among his creditors. The stress of the learned counsel for the appellants is on the expression 'property of the insolventwherever situate shall vest in the official assignee and shall become divisible among creditors '.....' The learnedcounsel for the appellants' contention isthat irrespective of territorial bar theproperty belonging to the insolvent shallvest in the official assignee. We areunable to accept this contention. Thevesting contemplated under Section 17takes effect over the property whereversituate within British India whether inthe presidency town or in the 'maufassil.'The adjudication order, however, doesnot operate to vest insolvent's immovableproperty situate in a foreign State inthe official assignee. We are fortifiedin our view in the decisions reported inRe-Sumermull Surana, AIR 1932 Cal 124;Anantapadamanabhaswami v. Offl. Recr.Secunderabad, AIR 1933 PC 134: Aiyaswami v. Offl. Assignee Madras, AIR 1934Mad 344 and In Re Motilal Premsukh,AIR 1938 Rang 324. It will be profitable to make a particular reference toAIR 1933 PC 134 which concludes thecontroversy in this behalf raised beforeus. In this case an order of adjudication was made by the District Court atSecunderabad in 1938 adjudging theinsolvent plaintiff in a partition suit inthe Madras High Court. The preliminarydecree in the partition suit was attachedin 1996 by a decree-holder against theplaintiffs in execution of a decree. Itwas held that the adjudication orderwas to be regarded as the order of aforeign court that it could not be recognised as having the effect of vestingin the Receiver any immovable propertyof the insolvent and that the decree-holder was entitled to the benefit of hisprior attachment. The matter is thusconcluded by the decision of the JudicialCommittee. The same position holds goodin this case as the Churu Court was aforeign court at the time when thejudgment-debtor Jivanmal was adjudgedinsolvent by the Calcutta High Court.The order of adjudication passed by theCalcutta High Court, therefore, couldnot be recognised to vest the insolvent'sproperty situate in a foreign territory inthe Official Assignee. In this view of theposition of law, it is very difficult tohold that the Official Assignee was anecessary party to the previous execution applications.
7. We may now take up the second question of limitation namely, whether the order dated 29-5-1950 of the executing Court holding that the Official Assignee was a necessary party was final so as to operate as res judicata to preclude the respondents to show that the previous execution applications were in accordance with law and, therefore, the fourth execution application was within time. One of the essential ingradients of the principle of res judicata is that the decision must be between the same parties. Mutuality or reciprocity is generally considered to be the one of the essential conditions of estoppel by res judicata. In support of this view we may extract the observations of Mr, Spencer in his treatise Spencer Bower on Res Judicata Page 132 quoted by Dr. Nandlal in his book 'The Law and Doctrine of Res Judicata' as under:--
'Mutuality, or reciprocity, is often said to be a condition of estoppel by res judicata.
This means that where A is said to be estopped as against B by a judicial decision, it has always been considered material, in the solution of the question, to inquire whether, the position had been the other way. B would have been estopped thereby as against A.'
Concretely put suppose in the previous execution application, the point of necessary party was decided against the judgment-debtor Jivanmal in the absence of official assignee who would have subsequently appeared and contended that his presence was necessary and would nave even satisfied the correctness of his stand, could the principle of res judicata be attracted to estop the Official Assignee to raise the point. Our answer is in the plain negative as there was no mutuality or reciprocity inasmuch as the point was not decided between him and the decree-holder. Likewise it can equally be said that the Official. Assignee being not a party to the previous execution proceedings any decision on the point oould not operate as res judicata so as to estop the decree-holder-respondent to contend otherwise. Moreover the decision to operate as res judicata should be a decision on merits. In the instant case the appellants seek to estop the decree-holder respondent from showing that the previous execution applications were in accordance with law. In neither of the previous execution applications it was ever held that the property had vested in the Official Assignee nor it was decided that the previous execution applications did not serve as step in aid of execution. All that was decided was an interlocutory point whether the Official Assignee was a necessary party. The question of limitation was never decided in the previous execution applications. The only interlocutory matter as to the Official Assignee being a necessary party was decided. That could not operate as res judicata and it is open to the decree-holder-respondent to show that the previous execution applications were in accordance with law. The master can be viewed from another angle. The first execution application was dismissed on29-5-1950. The second execution application was made in the year 1954. In that execution application the objection as to the executability for want of impleading the Official Assignee was raised but was overruled by the executing Court by its order dated 17-3-1958. Dissatisfied the judgment-debtor preferred an appeal before the District Judge who remanded the case directing the decree-holder-respondent to implead the Official Assignee and after serving notice upon him the executing Court had decided whether the attached house should be sold in the execution of the decree by his order dated 15-12-1959. The plea of limitation was not raised in the second execution application although as per the stand taken by the appellant it was available to him. He is, therefore, precluded from raising the question of limitation on the ground that the previous execution application was not in accordance with law and was, therefore, barred by time. The bar of limitation having not been raised against the executability of the second execution application it is futile to contend that the present application is barred by time. The second execution application continued at least upto 15-12-1959 when the appellate Court remanded the case. That application was finally disposed of in the ordinary manner and was not dismissed on the plea of limitation. The present execution application had been filed on 15-3-1960 which is well within three years from the date of the last execution application and is obviously within time. The contention that the execution is barred by limitation, there fore, cannot be sustained in view of the above findings. We accordingly hold that the execution, application is within time.
8. It was next contended that the appellant Jivanmal had been discharged by the Calcutta High Court and in view of the provisions of Section 45 of the Presidency Towns Insolvency Act, the order of discharge will completely wipe out the debts of the appellant and consequently the decree could not be executed after the order of discharge. In this connection the learned counsel drew our pointed attention to Sub-clause (2) of Section 45 of the Presidency Towns Insolvency Act wherein it has been provided that the order of discharge shall release the insolvent from all debts provable in insolvency. Before we deal with this contention at this stage it will be convenient to deal with the argument of Mr. Sumerchand Bhandari that the learned Single Judge had erred in permitting the discharge order to be taken in evidence under Order 41. Rule 27 C, P. C. The order of discharge wasnot produced in the Courts below and the same was first presented before the learned Single Judge, The learned Single Judge permitted this document as to was a publir document. Mr. Bhandari's contention was that the order of discharge related to question of fact and required investigation as to whether it related to the appellant. He contended that the new evidence as to fact necessitating investigation Into facts could not be permitted under Order 41 Rule 27 C. P. C. In this connection he had referred to Fakir Bhai v. Maganlal, AIR 1951 Bom 380. Dwarkadas v. Badrilal, AIR 1930 All 220 and Purushottam v Rajaram AIR 1965 Mys 59 We have perused these authorities. After giving our careful consideration to the submission of Mr. Bhandari we are of the opinion that no exception could be taken to the order of the learned Single Judge in regard to permitting the discharge order to be taken in evidence, under Order 41. Rule 27. C. P. C. The document was a public document and the genuineness was beyond any manner of doubt. The appellate Court had discretion and it has exercised it in a judicial manner on valid grounds. The contention of Mr. Bhandari on this score, therefore, cannot be accepted.
9. Coming to the merit of the contention of Mr. Jain as to whether discharge order will wipe out the liabilities of the insolvent, it may be recalled that the learned Single Judge has held that the discharge order will not extinguish the debt on the strength of the decisions reported in AIR 1937 Mad 727 and AIR 1950 Cal 487 Mr. Jain pointed out that Abdul Kuthus v. Inayathulla, AIR 1937 Mad 727 has been reversed by a later Division Bench authority reported in Abdul Kuthus v. Inayathulla, AIR 1941 Mad 620. It is true that this authority has been reversed by a later Division Bench authority reported in AIR 1941 Mad 620 We have perused the authority reported in AIR 1941 Mad 620 but are not persuaded by the reasons given therein. The property in question had not vested in the Official Assignee as the Churu territory was a foreign territory vis-a-vis the Calcutta High Court which passed the order of adjudication in the year 1948. The view taken in AIR 1937 Mad 727 and AIR 1950 Cal 487, appears to be more reasonable and in accord with public policy as it prevents the insolvent to take undue advantage from the property existing prior to the order of his being adjudged insolvent. We are, therefore, in accord with the view taken by the learned Single Judge that the debt was not extinguished, and could be enforced against the estate of the judgment-debtor which was existing in the foreign territory at the tune when the order of adjudication was made by the Calcutta High Court.
10. Even otherwise in our view in the facts and circumstances of this case the debts and liabilities of the insolvent were not wiped out. on account of the order of discharge. Debts and liabilities which are not provable in insolvency are not effected by the discharge of the insolvent. It may be recalled that debt in question was based on a decree of the Churu Court passed in the year 1948. Churu Court at that time was a foreign court and decree of such a court was not executable and still cannot be held to be executable and provable at Calcutta. Reference in this connection may be made to Moloji Narsingh Rao v. Shankar Saran, AIR 1962 SC 1737. The facts were The plaintiff brought a suit against the defendant who was a resident of Uttar Pradesh in Gwalior Court on 15-5-1947. The summonses were issued, and were served on the defendant, but he did not appear in the Gwalior Court and on 18-11-1945 an ex parte decree was passed by the Court against the defendant On 14-9-1951 an order was passed by the Gwalior Court for the transfer of the decree for execution to the Court at Allahabad in Uttar Pradesh. The decree was held to be a nullity and not executable at Allahabad It wag held that at the time of passing of the decree in November, 1948, the definition of foreign Court as amended by an Adaptation Order of March 23, 1948. a Court situated beyond the limits of the province of what was British India and which had no authority in the province of British India. The Court at Gwalior fell within the definition and, therefore, it was a foreign court and judgment passed by it would be a foreign judgment. It was further held that at; the relevant date the various constitutional changes did not affect the position, and status of the United State of Madbya Bharat, which included Gwalior, The judgment of the Gwalior Court could not be regarded as having extra, territorial validity because the defendant was not the subject of Gwalior nor was he temporarily present in the State when the process was served on him. It was further held that if a decree was unenforceable in a particular court at the time when it was passed it would not become en forceable and valid simply because of the judicial changes that took place later unless there is specific provision to the contrary, as the decree passed by a foreign court in the international sense was a nullity outside Madhya Bharat. In view of this authority the claim, under the decree passed, by Churn Court, could not, be held to be provable under Section 45 (2) of theInsolvency Act which contemplates the release of those debts which are provable under the Insolvency Law. Mr. Jain, however, urged that the proposition laid down in AIR 1962 SC 1737 has been overruled in Lalji Raja & Sons V. Nathuram, AIR 1971 SC 974. We have perused this decision. We are of the opinion that the decision has not shaken the principle laid down in AIR 1962 SC 1737 so far as the decree passed by title Courts of erstwhile princely States are concerned. In AIR 1971 SC 974, their Lordships were dealing with the executability of the decree passed by the Court of West Bengal, a British Indian territory at that time at Morina in Madhya Bharat It was held that by the extension of the Code of Civil Procedure the whole of India including Madhya Bharat want of jurisdiction on the part of Madhya Pradesh Court to exclude a decree in the British India was remedied. In fact that their Lordships did not overrule the principle laid down in AIR 1962 SC 1737, rather they upheld the principle laid down in it and distinguished it on the ground that the Code of Civil Procedure had been extended to Madhya Pradesh also. It may be profitable to extract the observations of their Lordships as follows:--
'In Shitole's case. (AIR 1962 SC 1737) this Court was called upon, to consider a converse case. Therein the decree under the execution was one passed by a Court in Gwalior State in a suit instituted in May, 1947. The defendants were residents of Uttar Pradesh. They did not appear before the Gwalior Court though served with the notices. An ex parte decree was passed against them In November, 1948. On September 19, 1951, the Gwalior Court transferred the decree for execution to Allahabad and on October 16. 1951., the decree-holder filed an application for execution of the decree before the Allahabad High Court The judgment debtor contended that the decree being a decree of Gwalior Court to whose jurisdiction they had not submitted, was a nullity and the execution application in respect thereof was not maintainable. That contention was accepted by this Court. It may be noted that the Gwalior Court was not, a Court constituted under the provisions of the Code. It was admittedly a foreign Court for the purposes of any proceedings under the Code. The ratio of that, decision is inapplicable to the present case. The question whether a decree is a valid decree or whether it can be transferred to another court for execution has to be judged by the provisions of the Code.'
It will thus appear that their Lordships drew distinction on the basis that theprincely State Court of Madhya Bharat having not been constituted under the Code of Civil Procedure even the extension of its applicability could not make it a Court, constituted under the Code of Civil Procedure as the Civil Procedure Code was not prevalent when the decree was passed. This is exactly the case before us. The decree of the Churu Court was that of a foreign court, and could not be held to be executable in the British Indian territory even after the extension of the applicability of the Code of Civil Procedure under the Adaptation Act of 1951. Asa natural corollary the debt was not provable under Section 45 (2) of the Presidency Towns Insol-vency Act The decretal debt in question being not provable under Section 45 (2) as held in AIR 1962 SC 1737 the question of release of the insolvent from his liabilities cannot arise under Section 45 (2) of the Presidency Towns Insolvency Act Mr Jain has however referred to Kundanlal v. Nathu. AIR 1933 All 600 in support of his contention. In AIR 1933 All 600 it has been held that the order of discharge shall release the incumbent from all debts provable under the Act even the creditor has not been notified. This case is clearly distinguishable. It does not deal with a decree passed by a foreign court.
11. In the instant case the property had not vested in the Official Assignee. It is also not clear on the record whether the debt of the respondent was ever shown in the schedule of affairs in the insolvency proceedings. It is also evident that the property in question was never taken in charge by the Official Assignee, and the same was under attachment of the Court at Churu on the prayer of the respondents. The respondents had attached the property and they are entitled to set it sold in execution of the decree for his benefit and for the benefit of the other creditors as in our view as already mentioned above the insolvent, had not been released from his liabilities in view of the discharge order.
12. In the result, we see no force in this appeal and dismiss it with costs.