Telangana High CourtAltaf Hussain Khan vs Madame Canisia Ceizar on 24 March, 2023Author:P Naveen RaoBench:P Naveen Rao1\n                                                     PNR, J & JSR, J\n                                               CCCA.No.47of 2021 and\n                                                  CCCA No.48 of 2021\n\n\n\n\n       HIGH COURT FOR THE STATE OF TELANGANA\n\n       CCCA No.47 of 2021 and CCCA No.48 of 2021\n\nCCCA No.47 of 2021:\nBetween:\nMahmood Hussain Khan, S/o. Late Mohd. Hussain Khan aged\nabout 68 years, R/o.3-6-19, Himayath Nagar, Hyderabad &\npermanent R/o. 6, Perroset, Ch-1036 Sullens, Switzerland\n\n                                    ...Petitioner/Defendant No.4\n                   And\nMadam Canisia Ceizar, divorcee, aged about 52 years\nOccu: Household, R/o. Algen Voglhub Austria, Rep., by her GPA\nAli Asghar Ceizar, S/o. Late Hussain Ali Ceizar, aged about 55\nyears Occ: Business, Resident of H.No.3-5-855, Hyderguda,\nHyderabad and 7 Others.\n\n                           ...Respondents/Plaintiffs-Defendants\n\nCCCA No.48 of 2021:\nBetween:\nAltaf Hussain Khan, S/o. Late Mohd. Hussain Khan aged about\n63 years, presenting residing at La Tuiliere, 1136\nBussyChardonny, Switzerland.\n\n                                   ...Appellant/Defendant No.10\n\n                  And\n\nMadam Canisia Ceizar, Divorcee, aged about 51 years, Occ:\nHousehold, R/o. Algen Voglhub Austria, Rep., by her GPA, Ali\nAsghar Ceizar, S/o. Late Hussain Ali Ceizar, aged about 54\nyears, Occ: Business, Resident of H.No.3-5-855, Hyderguda,\nHyderabad and 24 Others.\n\n       ...Respondents/Plaintiffs-Defendants 1 to 19 & 11 to 24.\n\nDATE OF COMMON JUDGMENT PRONOUNCED: 24.03.2023\n\n\n1. Whether Reporters of Local newspapers                   No\n   may be allowed to see the judgment?\n                                        2\n                                                                  PNR, J & JSR, J\n                                                            CCCA.No.47of 2021 and\n                                                               CCCA No.48 of 2021\n\n\n\n\n2. Whether the copies of judgment may be                                Yes\n   marked to Law Reporters/Journals\n\n\n3. Whether Their Lordships wish to                                      Yes\n   see the fair copy of the judgment?\n\n\n         * HONOURABLE SRI JUSTICE P. NAVEEN RAO\n                          AND\n         HONOURABLE SRI JUSTICE J. SREENIVAS RAO\n\n    + CCCANo.47 OF 2021 AND CCCA No.48 OF 2021\n\n              % DATED 24TH DAY OF MARCH, 2023\nCCCA No.47 of 2021:\nBetween :\n# Mahmood Hussain Khan,\n                                                                  ...Petitioner\n                                    And\n$ Madam Canisia Ceizar,           & 7 others\n\n                                                             ...Respondents\nCCCA No.48 of 2021:\nBetween :\n# Altaf Hussain Khan\n                                                                  ...Appellant\n                          And\n# Madame Canisia Ceizar and 24 Others.\n                                                             ...Respondents\n<Gist:\n\n>Head Note:\n! Counsel for the Petitioner               : Sri A. Prabhakar Rao\n\n^Counsel for Respondents                   : Sri Ali Azghar Ceizar\n                                             (appeared party-in-person)\n\n? CASES REFERRED:\n\n1. (2017) 2 SCC 253 : (2017)1 SCC (Civ) 618: 2016 SCC OnLine SC 1444\n2. (2007) 5 SCC 745\n3. (2014) 5 SCC 1\n                                 3\n                                                      PNR, J & JSR, J\n                                                CCCA.No.47of 2021 and\n                                                   CCCA No.48 of 2021\n\n\n\n\n    HIGH COURT FOR THE STATE OF TELANGANA\n\n       CCCA No.47 of 2021 and CCCA No.48 of 2021\n\nCCCA No.47 of 2021:\n\nBetween:\n\nMahmood Hussain Khan, S/o. Late Mohd. Hussain Khan aged\nabout 68 years, R/o.3-6-19, Himayath Nagar, Hyderabad &\npermanent R/o. 6, Perroset, Ch-1036 Sullens, Switzerland\n\n                                     ...Petitioner/Defendant No.4\n                   And\nMadam Canisia Ceizar, divorcee, aged about 52 years\nOccu: Household, R/o. Algen Voglhub Austria, Rep., by her GPA\nAli Asghar Ceizar, S/o. Late Hussain Ali Ceizar, aged about 55\nyears Occ: Business, Resident of H.No.3-5-855, Hyderguda,\nHyderabad and 7 Others.\n\n                          ...Respondents/Plaintiffs-Defendants\n\nCCCA No.48 of 2021:\n\nBetween:\n\nAltaf Hussain Khan, S/o. Late Mohd. Hussain Khan aged about\n63 years, presenting residing at La Tuiliere, 1136\nBussyChardonny, Switzerland.\n\n                                    ...Appellant/Defendant No.10\n                 And\n\nMadam Canisia Ceizar, Divorcee, aged about 51 years, Occ:\nHousehold, R/o. Algen Voglhub Austria, Rep., by her GPA, Ali\nAsghar Ceizar, S/o. Late Hussain Ali Ceizar, aged about 54\nyears, Occ: Business, Resident of H.No.3-5-855, Hyderguda,\nHyderabad and 24 Others.\n\n       ...Respondents/Plaintiffs-Defendants 1 to 19 & 11 to 24.\n\n\nThe Court made the following:\n                                  4\n                                                        PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 and\n                                                     CCCA No.48 of 2021\n\n\n\n\n        HONOURABLE SRI JUSTICE P. NAVEEN RAO\n                        AND\n       HONOURABLE SRI JUSTICE J. SREENIVAS RAO.\n\n       CCCANo.47 OF 2021 AND CCCA No.48 OF 2021\n\nCOMMON JUDGMENT:(Per the Hon'ble Sri Justice J. Sreenivas Rao)\n\n        Defendant No.4 in O.S. No.64 of 2009 filed CCCA No.47 of\n\n2021 questioning the common judgment and decree dated\n\n10.03.2021 passed in O.S.No.164 of 2005 & O.S. No.64 of 2009\n\non the file of II Addl. Chief Judge, City Civil Court, Hyderabad.2.      For the sake of convenience, hereinafter the parties are\n\nreferred to as they were arrayed in O.S. No.64 of 2009 and O.S.\n\nNo.164 of 2005.CCCA No.47 of 2021 :3.      Respondent Nos.1 and 2 who are the plaintiffs filed suit\n\nO.S.No.64 of 2009 against the appellant/defendant No.4,\n\nrespondents 3 to 8/defendants 1 to 3 and 5 to 7(a)   for seeking partition of the suit schedule property\ni.e.   House bearing Municipal No.3-6-19, admeasuring 3000\nsquare yards, situated at Himyatnagar, Hyderabad into five\nshares and allot one such share of the same to the plaintiffs and\nalso future mesne profits.5PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021(b)   to pass Final Decree in accordance with the\npreliminary decree by appointing an Advocate Commissioner for\ndivision of plaint schedule properties and allot 1/5th share and\nallotment of respective shares and possession, be delivered to\nthe plaintiff No.2 in respect of the plaint schedule property.(c)   To direct the defendants 1 to 7 to deposit the\narrears of rents and interest to a tune of lrs approximately\nRs.2,74,17,600/- i.e. 1/5th share of the plaintiff from the year\n1994 till realisation of rents.4.     Brief averments of the plaint in O.S. No.64 of 2009 as\n\nfollows:4.1.   Plaintiff No.1, a Swiss National domiciled in Austria, has\n\nobtained an order in default in payment on 17.06.1997 which\n\nhas been further added to on 04.08.1997 against Mr.Altaf\n\nHussain Khan/defendant No.5. When there was default in\n\npayment on the part of defendant No.5 an order of attachment\n\ndated 05.11.1997 was passed by the office of the legal\n\nproceedings of Morges, Switzerland.4.2.   The defendant No.5 has contested the legality of the\n\nattachment and confirmation on 04.12.1997 in respect of two\n\nbuildings-House bearing No.5-9-186, Chapel Road, and 3-6-19\n\nat Himayathnagar, Hyderabad. On 16.12.1997 the defendants 1\n\nto 3 and 5 have filed an appeal before the Court of District6PNR, J & JSR, J\n                                                 CCCA.No.47of 2021 andCCCA No.48 of 2021Morges, Switzerland. On 08.01.1998 the defendant No.4 viz.,\n\nMahmood Hussain Khan has filed a separate appeal contesting\n\nrights of all his brothers. On 25.11.1998 the Court of District,\n\nMorges, Switzerland has rejected the defendant No.4 appeal.Similarly, on the same date, the appeal filed by defendant Nos. 1\n\nto 3 and defendant No.5 was also rejected.4.3.   The defendant No.4 as well as defendant Nos.1, 2 and 5\n\nhave not chosen to file an appeal against the said order dated\n\n28.01.1998.     Defendant No.3 only chose to file an appeal\n\nagainst the above said order and the same was rejected by the\n\nCourt of Bankruptcy of Legal Proceedings on 19.05.1999. Thus,\n\nthe plaintiff was granted a decree on 19.05.1999 and it has\n\nbecome final, because there was no appeal to the Supreme\n\nCourt of Switzerland.4.4.   In execution of the said decree, the defendants 1 to 5 have\n\nraised many pleas and all the pleas have been rejected by the\n\nCourt in Switzerland. Ultimately, the Supreme Court (Tribunal\n\nFederal) Switzerland on 28.01.2000 has finally upheld the rights\n\nof the plaintiff. On 07.09.2000 the office of the proceedings of\n\nBankruptcy of District, Morges has sent a letter to all the\n\ndefendants inviting them for conciliation, which was to take7PNR, J & JSR, J\n                                                   CCCA.No.47of 2021 andCCCA No.48 of 2021place on 18.10.2000. Ultimately, the sale notice was issued\n\nstating that the 1/5th share of       defendant No.5 would be sold\n\non 10.09.2004.     The sale was conducted and the plaintiff\n\nbecame highest bidder for 10,000 Swiss Franks. Since the sale\n\nwas not questioned by the debtor or any of the defendants\n\nwithin 10 days, the sale was confirmed. Since the plaintiff\n\npurchased only 1/5th share, the suit is for partition and\n\nseparate possession of the suit schedule property viz., House\n\nbearing No. 3-6-19 at Himayathnagar, Hyderabad. It is further\n\nsubmitted that the Bankruptcy of defendant No.5 has not so far\n\nbeen annulled.4.5.   Plaintiff No.1 assigned her interest in the above suit\n\nschedule properties in favour of plaintiff No.2 by executing an\n\nassignment deed dated 09.07.2007 in Switzerland as per law.\n\nThe same was confirmed by the judicial authorities and\n\naccepted by the defendants1 to 5 and by virtue of acquiring the\n\nrights in the suit schedule properties in respect of two\n\nproperties situated at Chapel Road and Himayatnagar.               The\n\nplaintiff No.2 also filed a complaint before the Public Prosecutor,\n\nDistrict of Morges, Switzerland on 18.11.2011 against the\n\ndefendant No.5 and his wife for fraudulent bankruptcy and\n\nfraud in seizure. Basing on the complaint, investigation was8PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021directed against them. It was found that the said person\n\nconcealed parts of their assets belonging to plaintiffs, and in\n\nsubsequent proceedings PE 13.021960-MMR dated 25.11.2014\n\nthe Chamber of Criminal Appeal (High Court for Criminal\n\nMatters - State Vaud - Switzerland) indicated that defendant\n\nNo.5, admitted before the Tribunal through his counsel, dated\n\n22.10.2014 stating that "Altaf Hussain Khan did not diminish\n\nany assets and caused no damage to creditors. The fact that\n\nthe recovery in India, the debt acquired by auction in\n\nSwitzerland has caused difficulties to Mr Ceizar Ali Asghar and\n\nno longer the responsibility of Swiss authorities, but the Indian\n\nauthorities.     He cannot be accused of having concealed any\n\nassets of Ceizar Ali Asghar/plaintiff No.2 that should be subject\n\nto the procedure of seizure" and defendant No.5 have admitted\n\nseveral facts.4.6.    It is the further case of the plaintiff that the defendants\n\nin the suit are collecting rents and have enjoyed the same as if,\n\nit is their own. The plaintiff No.2 is entitled to get rent to the\n\nextent of 1/5th share from 1994 to the end of 2018 i.e.24 years\n\nwhich    average amounts to Irs Rs.85,000/- per month along\n\nwith interest @ 12% per annum.9PNR, J & JSR, J\n                                                 CCCA.No.47of 2021 andCCCA No.48 of 20215.    Defendant No.1 died.     Defendant Nos.2, 4, and 6 have\n\nfiled their written statements and defendant No.4 also filed\n\nadditional written statement. Defendant Nos.3 and 5 were set\n\nex parte. Defendant No.6 and 7 are the legal representatives of\n\ndefendant No.1 and they have not filed written statement.6.    Defendant No.2 filed written statement denying the plaint\n\naverments inter alia contending that the suit schedule property\n\nis owned and possessed jointly by defendants 3 & 4 which is\n\nestablished from the orders in IA.Nos.168/1999 and 949/1999\n\nin 0.S.No.361 of 1994 filed by plaintiff. Against the said orders,\n\nthe plaintiff has not preferred any appeal or revision. The suit\n\nschedule property originally got attached by plaintiff as Item\n\nNo.2 in I.A. No.500 of 1994 in O.S. No.361 of 1994 filed and\n\npending on the file of I Senior Civil Judge, City Civil Court,\n\nHyderabad for recovery of money against the defendant No.5.\n\nThe suit schedule property which belongs to defendants 3 &4\n\ngot attached by ex parte orders to get their property released\n\nfrom the attachment before judgement and a fresh modified\n\nattachment order was also issued on 04.06.2002 in I.A.No.1189\n\nof 2002 in O.S.No.361 of 1994.      It is contended that the suit\n\nschedule property cannot be sold or auctioned during the\n\npendency of the said suit. No appeal or revision has been filed10PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021against the release order and it is requested the Court to\n\nconsider the contents of the written statement filed by\n\ndefendant No.4. He further submits that he along with\n\ndefendant Nos.3 and 4 purchased a portion of the property\n\nsituated at Chapel road under a registered sale deed but not\n\nfrom the owners/defendant Nos. 1 and 5.7.    Defendant No.4 filed written statement contending that\n\ndefendant No.3 and himself owned and possessed the suit\n\nschedule property under a registered sale deed vide document\n\nNo.507/1959 and presently the schedule property is under\n\nlease given by them.     The mother-in-law of the plaintiff i.e.\n\nmother of the alleged GPA holder of the plaintiff filed a suit vide\n\nOS No.627 of 1995 on the file of Senior Civil Judge, City Civil\n\nCourt, Hyderabad, claiming 1/11th share in the suit schedule\n\nproperty falsely alleging that it was Matruka property of her\n\nmother. The mother of the plaintiff also filed O.S. No.627 of\n\n1995 therein, she also filed I.A. No.571 of 1995 seeking\n\ninjunction against the defendants not to interfere with her\n\nalleged joint possession over the suit schedule property and not\n\nthe alleged suit schedule property. The petition was dismissed\n\non merits vide orders dated 18.08.1995. The appeal preferred\n\nagainst the said order was also dismissed by the High Court11PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021dated 13.10.1995.     In the appeal against the orders in I.A.\n\nNo.1389 of 1995. The suit O.S. No.627 of 1995 was dismissed\n\nwith costs by its judgment and decree dated 02.12.2000 by\n\nupholding that the defendant Nos.3 and 4 are the only owners\n\nof the suit schedule property and it is not a Matruka property.\n\nThe defendant No.5 and the plaintiff herein had business\n\nrelations and did a contract of construction i.e. development of\n\nplot of land No.767 situated at rue du Lac. 15a, in the Commune\n\nof Renens, Switzerland. They had differences and in pursuance\n\nof the said transactions, the plaintiff filed suit OS No.361 of\n\n1994 on the file of Senior Civil Judge Court, City Civil Court,\n\nHyderabad for recovery of Rs.50,00,000/- against the defendant\n\nNo.5 and the same is pending.7.1.   He further contended that the plaintiff filed I.A. No.500 of\n\n1994 in O.S. No.361 of 1994 for attachment before judgment in\n\nrespect of alleged properties of the defendants including the\n\nitem No.2 properties. The affidavit filed in the said application\n\nshows that the plaintiff is having knowledge that the property is\n\nthe exclusive property of defendant Nos.3 and 4. Item No.1 of\n\nschedule of I.A. No.500 of 1994 in O.S. No.361 of 1994 was the\n\nproperty of defendant No.5 and his brother/defendant No.1 and\n\nthey gave the same for development to third party. The written12PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021statement of defendant in O.S. No.361 of 1994 was to the effect\n\nthat he is joint owner of the property bearing House No.3-6-19,\n\nsituated at Himayatnagar, Hyderabad, is owned and possessed\n\nby defendant Nos. 3 and 4 only in spite of the same, the plaintiff\n\nhas not taken any steps to get the said I.A. No.500 of 1994 in\n\nO.S. No.361 of 1994 modified or the orders dated 05.04.1994\n\ngot modified. The plaintiff after obtaining ex parte orders in I.A.\n\nNo.500 of 1994 has filed in the Swiss Courts stating that the\n\nsaid properties are under attachment.7.2.   He further contended that he filed a claim petition in I.A.\n\nNo.168 of 1999 in O.S. No.361 of 1994 on the file of I Senior\n\nCivil Judge, CCC, Hyderabad for release of Item No.2 of the\n\nattached property.   The plaintiff filed counter affidavit stating\n\nthat Item No.2 of the attached property is sold by none other\n\nthan the husband of G.P.A. holder of the plaintiff under a\n\nregistered sale deed to the defendant Nos.3 and 4.        After due\n\ncontest in IA No.168 of 1999, the defendant No.4 has got the\n\nshare of the property released and by the orders in I.A. No. 949\n\nof 1999 in O.S. No.361 of 1994, the remaining 50% share of\n\ndefendant No.4 is also released vide orders in I.A. No.1189 of\n\n2002 in O.S. No.361 of 1994. Later in I.A. No.1189 of 2002 the\n\nproperty bearing House No.3-6-19, Himayathnagar, Hyderabad,13PNR, J & JSR, J\n                                                CCCA.No.47of 2021 andCCCA No.48 of 2021is released from attachment and the modified order of\n\nattachment is issued.    The suit O.S. No.361 of 1994 is still\n\npending and no decree is passed in the said suit.\n\n\n7.3.   He further contended that the immovable property\n\nsituated at Hyderabad, A.P., India cannot be auctioned or sold\n\nat Switzerland, much less auctioned at Morges, Switzerland in\n\nbetween the plaintiff and defendant No.5, whether defendant\n\nNo.5 filed any insolvency petition or not. Defendant No.5 is well\n\naware that the property is the exclusive property of defendant\n\nNos. 3 and 4 and to that effect, defendant No.5 filed his written\n\nstatement in O.S. No.361 of 1994 and the suit is pending for\n\ntrial, as such the property cannot be sold or auctioned.        The\n\nsubmission of the plaintiff No.1that as per document No.1, he is\n\nthe auction purchaser of the defendant No.5 in the suit\n\nschedule property, is not correct.7.4.   He further contended that the litigious and contested\n\nrights claimed by the plaintiff No.1 has to be proved and\n\nclaimed in India.   Even if the orders are taken as true and\n\nbinding, then also the plaintiff No.1 has to file a suit to prove\n\nthat the defendant No.5 (who is a debtor in Switzerland to the\n\nplaintiff in the present suit) has a right in the suit schedule14PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021property and after getting decree only she is entitled to enforce\n\nthe order which is passed by the Switzerland Court. Further,\n\nthe fact remains that the said property was also released from\n\nattachment claimed by plaintiff No.1 in I.A. No.500 of 1994 in\n\nO.S. No.361 of 1994 on contest between the plaintiff No.1 and\n\ndefendant Nos.4 and 3 herein in I.A. No.168 of 1999 and I.A.\n\nNo.949 of 1999 in O.S. No.361 of 1994. The certificate dated\n\n27.09.2004 filed by plaintiff No.1 is in respect of property\n\nbearing   No.5-9-186   situated    at   Chapel   road,   Hyderabad\n\nbelonging to defendant Nos.1 and 5 but not in respect of suit\n\nschedule property. He further submits that if the contention of\n\nplaintiff that the defendant No.6 has right in the property at\n\nHimayatnagar and the plaintiff is claiming 1/5th share in the\n\nHimayathnagar property, then the claim of the plaintiff in\n\nChapel road also must be 1/5th share only, but in Chapel road\n\nproperty the claim is as per the document of the property i.e.\n\nthe defendant Nos. 1 and 5 herein and in respect of the\n\nHimayathnagar property, it is not as per the sale deed (title\n\ndocument) of the defendant Nos.4 and 3.7.5.   He further contended that defendant No.5 has no share in\n\nthe property at Himayathnagar, Hyderabad and also as per the\n\norders in the application in O.S. No.361 of 1994. As such, the15PNR, J & JSR, J\n                                                 CCCA.No.47of 2021 andCCCA No.48 of 2021suit is not maintainable unless and until the plaintiff proves\n\nthat the defendant No.5 has a right or 1/5th share in the suit\n\nschedule property of defendant Nos.3 and 4. The Court fee paid\n\nunder Section 34(s) of A.P.CF and SV Act does not apply to the\n\npresent suit as the property is not joint and the suit for\n\npartition does not lie.    The suit schedule property is the\n\nabsolute property of defendant Nos.3 and 4 and that the title,\n\nthe rights of these defendants over the suit schedule property\n\nare still subsisting under the said sale deed since more than 50\n\nyears they are enjoying the same.   All the immovable properties\n\nsituated in India are governed byTransfer of Property Actand\n\nthese properties can neither be attached nor sold in any foreign\n\ncountry or by any foreign authorities. The provisions of Indian\n\nStamp Act, Registrations Act and the Transfer of Property Act\n\nare applicable. Therefore, the suit itself is not maintainable\n\nunder law.8.    Defendant No.4 filed additional written statement stating\n\nthat the contention of plaintiff No.1 executing assignment deed,\n\ndated 09.07.2007 is not a legally admissible document, as the\n\nimmovable property situated at Hyderabad. It is pertinent to\n\nsubmit that the defendant No.4 has earlier submitted that the\n\nsaid share or any portion of the said property is not sold, rather16PNR, J & JSR, J\n                                                   CCCA.No.47of 2021 andCCCA No.48 of 2021as according to the authority issued the said certificate in\n\nrespect of a contested unproved debt claim, these are the seized\n\nrights which were sold and not a part of the co-property.             It\n\nindicates that the said certificate in respect of the suit property\n\nis not sold, rather than the contention of the plaintiffs that the\n\ndefendant No.5 is having 20% (1/5th) share in the suit property\n\nbeing transferred, if at all, he has any such share in the said\n\nproperty, which is to be proved before that the defendant No.5\n\nhas such share, and then the plaintiffs have a right to claim.\n\nThe same contention has been clarified by the letter dated\n\n10.07.2019, issued by office of the Bankruptcy and Prosecution,\n\nDist of Marges, Switzerland. As such, the suit itself is not\n\nmaintainable without plaintiffs filing a case to prove that the\n\ndefendant No.5 has a share of 20% (1/5) as claimed by them,\n\nsince the competent Court has already declared that the\n\ndefendant Nos.3 and 4 are the only owners and possessors of\n\nItem No.2 i.e. H.No.3-6-19 Himayathnagar, Hyderabad.\n\n\n8.1.     The defendant No.5 has surrendered his rights, etc.\n\nbefore    the   Swiss   Courts,   has   been   misinterpreted.     The\n\ndefendant No.5 might have surrendered his rights in respect of\n\nhis share of property in Item No.1 i.e.22.5% share in Chapel17PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021road property, but not in respect of the above suit schedule\n\nproperty.9.    Basing on the above said pleadings, the Court below\n\nframed the following issues.1. Whether the document i.e., Auction Sale Certificate\n      dated 27.09.2004 basing on which the plaintiffs are\n      claiming share in the suit schedule property, is valid,\n      binding on the defendants?2. Whether the plaintiffs are entitled for preliminary\n      decree of partition as prayed for, if so, what are the shares\n      to which parties are entitled to?3. Whether the plaintiffs are entitled for future mesne\n      profits, if so, at what rate?4. To what relief"?CCCA No.48 of 202110.   Respondents 1 and 2 in CCCA No.48 of 2021, who are the\n\nplaintiffs in O.S. No.164 of 2005 filed suit against the\n\nappellant/ defendant No.10 and defendants No.1 to 9 & 11 to\n\n24 for seeking partition of the suit schedule property i.e. House\n\nbearing No.5-9-186, Chapel Road, Hyderabad, admeasuring\n\n1187 Square yards into five shares and allot 22.5% share of the18PNR, J & JSR, J\n                                                CCCA.No.47of 2021 andCCCA No.48 of 2021same along with a decree for recovery of rents that have accrued\n\nfrom 05.11.1997 with interest and future mesne profits.11.   Brief averments of the plaint in O.S. No.164 of 2005 are\n\nas follows:11.1. Plaintiff, a Swiss National domiciled in Austria, has\n\nobtained an order in default in payment on 17.6.1997 which\n\nhas been further added to that on 4.8.1997 against defendant\n\nNo.10. When there was default in payment on the part of the\n\ndefendant No.10, an order of attachment dated 5.11.1997 was\n\npassed by the office of Legal Proceedings of Morges, Switzerland.The attached property is part of the common property to an\n\nextent of 22.5%.11.2. The defendant No.10 contested the legality of the\n\nattachment contending that he has given his share to his\n\nAdvocate in India for payment of his fees. The attachment has\n\nbeen confirmed on 4.12.1997 rejecting all the objections. The\n\nconfirmation order dated 4.12.1997 covered two buildings\n\nnamely House bearing No.5-9-186, Chapel Road, and House\n\nbearing No.3-6-149 at Himayatnagar, Hyderabad. The present\n\nproceedings are with regard to H.No.1-9-186 i.e. suit schedule\n\nproperty. Defendants 6, 7, 8 and 10 have filed an appeal on19PNR, J & JSR, J\n                                                 CCCA.No.47of 2021 andCCCA No.48 of 202115.12.1997 before the Court of District Morges, Switzerland. On\n\n8.1.1998 the Defendant No.9 has filed a separate appeal\n\ncontesting rights of all his brothers. The Court of District\n\nMorges rejected the appeal of defendant No.9. On the same\n\ndate, the appeal filed by four brothers was also rejected.\n\nDefendant No.9 has not chosen to file appeal against the said\n\norder dated 28.1.1998. The appeal preferred by defendant No.8\n\nwas rejected by the Court of Bankruptcy of Legal proceedings on\n\n19.5.1999. The plaintiff was granted a decree on 19.5.1999 and\n\nthe decree has become final. The Defendants 6 to 10 have raised\n\nmany pleas and all the pleas have been rejected by all the\n\nCourts in Switzerland. The Supreme Court (Tribunal Federal)\n\nSwitzerland on 28.1.2000 has finally upheld the rights of the\n\nPlaintiff No.1. On 7.9.2000 the office of proceedings of\n\nBankruptcy of District Morges has sent a letter to all the\n\ndefendants inviting them for conciliation, on 18.10.2000.\n\nUltimately, the sale notice is issued stating that 22.5% share of\n\nthe defendant No.10 would be sold on 10.09.2004. The sale was\n\nconducted and the plaintiff was held to be the highest bidder by\n\npaying 70,000/- Swiss Franks. The sale was also confirmed and\n\nthe sale certificate has been issued in favour of the plaintiff on20PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 202127.7.2004. The Bankruptcy of defendant No.10 has not so far\n\nbeen annulled.12.     Defendant Nos. 1 to 5 are set ex parte.   Defendant No.6\n\ndied after filing written statement and his legal representatives\n\nare added as defendant Nos.22 and 23 and they have not filed\n\nVakalat and written statement.       Defendant Nos.7 to 10 filed\n\nwritten statement, defendant No.9 also filed additional written\n\nstatement and adoption memo filed by defendant Nos.6 to 8 and10. The defendant Nos.11, 14, 15 and 16 filed written statement\n\nand the same is adopted by defendant Nos. 12 and 13. The\n\ndefendant Nos.17 to 21 have not filed written statement. The\n\ndefendant No.24 (tenant) has not filed written statement. Thus,\n\nthe contesting defendants are defendant Nos.6 to 10 and 11 to\n\n21 in the suit.13.     Defendant No.6 filed written statement denying the\n\naverments made in the plaint inter alia contending that the suit\n\nis not maintainable which is filed basing onSection 13of the\n\nC.P.C    as alleged sale certificate/auction letters and all other\n\nproceedings cannot be in respect of an immovable property\n\nsituated in India.   The alleged orders or proceedings are not\n\npassed by competent Court and not on merits, obtained by21PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021fraud and they are not in accordance withTransfer of Property\n\nAct. The disputes and transfer to be adjudicated only by Indian\n\nCourts and no Foreign Court has jurisdiction to do so. As such,Section 13of C.P.C. is not applicable to the present suit.\n\n\n13.1. He further contended that the plaintiff is not an Indian\n\nNational and she cannot acquire any immovable property in\n\nIndia without obtaining permission from the Reserve Bank of\n\nIndia and Union Govt. of India. Further, the Plaintiff No.1 is a\n\ndivorcee; she ought to have mentioned her father's name and is\n\nnot proper person for adjudication of the case. The alleged\n\nG.P.A. has no right to file the above suit and she is not an\n\nIndian citizen and being a foreigner without disclosing his\n\nidentity and other particulars as well as the alleged G.P.A. is not\n\na resident of India for any purpose. The alleged G.P.A. holder be\n\ndirected to produce his identity and residential proof in\n\nconnection with his false statement of being a permanent\n\nresident H.No.3-5-855, Hyderguda, Hyderabad - 500 029 A.P.,\n\nas shown in the cause title.13.2. The alleged G.P.A. holder of the plaintiff No.1 is none\n\nother than the son of Uterine sister of the defendants Nos.6 to10. The plaintiff filed suit O.S.No. 361 of 1994 on the file of I22PNR, J & JSR, J\n                                                 CCCA.No.47of 2021 andCCCA No.48 of 2021Senior    Civil   Judge,   CCC,    Hyderabad   for   recovery      of\n\nRs.50,00,000/- against the defendant No.10 since they had\n\nbusiness relations and contract of construction i.e. development\n\nof plot of land No.767situated at rue du Lanco, 15e, in the\n\nCommune of Renens, Switzerland. They had differences and in\n\npursuance of the said transaction the plaintiff filed suit in O.S.\n\nNo.361 of 1994.      In the said suit the plaintiff filed a false\n\naffidavit vide I.A.No.500 of 1994 and obtained an attachment\n\nbefore judgment in respect of the properties as shown below:a)     Undivided half share of the commercial complex\n        consisting of three stories building with Mulgies,\n        constructed on a premises admeasuring 1800 sq.\n        yards being Municipal No.5-9-183 (later corrected 5-9-186), situated at Gunfoundry, beside S.B.H. Head\n        Office, Hyderabad.b)    Undivided 1/5th share of the Double storied\n        building located on a premises admeasuring 3000 sq.\n        yards bearing Municipal No.3-6-19, situated at\n        Himayathnagar, Hyderabad.14.     Defendant Nos.7 to 9 filed common written statement\n\nwhich is similar to that of written statement filed by defendant\n\nNo.6.15.     Defendant No.10 filed written statement contending that\n\nthe suit filed based on theSection 13of the C.P.C. is not\n\nmaintainable, as it is hit by almost all the sub-clauses of the23PNR, J & JSR, J\n                                                   CCCA.No.47of 2021 andCCCA No.48 of 2021said Section. As the alleged sale certificate, auction letter and all\n\nother proceedings cannot be in respect of an immovable\n\nproperty situated in India, therefore, the alleged orders or\n\nproceedings are not passed by a competent Court, not on\n\nmerits, obtained by fraud and they are not in accordance withTransfer of Property Act, which is the only law which governs\n\nthe transfer of all immovable properties in India and the\n\ndisputes and transfer to be adjudicated only by Indian Courts\n\nand no Foreign Court has jurisdiction to do so.            As such,Section 13of C.P.C. is not applicable to the present suit.\n\n\n15.1. He submits that he filed written statement in O.S. No.361\n\nof 1994 that he is a joint owner of the item No.1 of the schedule\n\nof the said I.A. and the other defendant Nos. 7 to 9 have nothing\n\nto do with the said property and he has also stated that the Item\n\nNo.2   property    bearing    House     No.3-6-19,     situated      at\n\nHimayatnagar, Hyderabad is neither owner nor possessed by\n\nhim. The property is owned and possessed by defendant Nos.8\n\n& 9 in the present suit.     The plaintiff has taken the ex parte\n\norders and filed in the Swiss Courts stating that the said\n\nproperties are under attachment.       Having come to know the\n\nsame from the proceedings in Switzerland that the defendant\n\nNo.9 filed proceedings in the Swizz Court to claim his property24PNR, J & JSR, J\n                                                 CCCA.No.47of 2021 andCCCA No.48 of 2021seeking release of the same and the same is contested by\n\nplaintiff and the claim of the defendant No.9 was rejected.        In\n\nthe appeal filed defendant No.9 was directed to approach Indian\n\nCourts to get the orders dated 05.04.1994 nullified or modified\n\nby the same Court to protect his property at Himayatnagar,\n\nHyderabad.    The defendant No.9 filed a claim petition I.A.\n\nNo.168 of 1999 in O.S. No.361 of 1994 for release of Item No.2\n\nof the attached property. Another application was filed by D-8\n\nfor the half share vide I.A. No.949 of 1999 in O.S. No.361 of\n\n1994.   Both the applications were allowed after due contest.\n\nThere was no appeal or revision preferred.       Finally, by the\n\norders in I.A.No.1189 of 2002 in O.S. No.361 of 1994 the\n\nproperty bearing House No.3-6-19 is released and the modified\n\norder of attachment is issued. The defendant No.9 has filed suit\n\nO.S. No.390 of 2004 for Rs.25,00,000/- as damages in respect\n\nof the false and defamatory statements and illegal attachments\n\nbased on the false and baseless affidavits filed in O.S. No.361 of\n\n1994. The defendant No.10 had a contractual relationship with\n\nthe plaintiff in respect of the development of immovable property\n\nin Switzerland by obtaining bank loan in Switzerland.            The\n\nplaintiff herein as a joint owner and partner of the said\n\nagreement has claimed certain amounts and in pursuance of25PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021the same several properties of the said defendant have been sold\n\nin Switzerland including the building constructed under the\n\nsaid development agreement. The defendant had a money claim\n\nin the form of attachment against D-10 in O.S. No.361 of 1994\n\nand the same attachment is still in force and the suit is still\n\npending adjudication.15.2. He further contended that the suit based on sale\n\ncertificate issued by Switzerland authority is illegal, invalid and\n\nnot enforceable. The alleged attachment of Switzerland Courts\n\nor the sale by the party is illegal and non est.Section 13of\n\nC.P.C is in respect of judgment of foreign Courts and its validity.\n\nAs the suit is based on the sale certificate issued by Switzerland\n\nCourts, it was illegal and unenforceable under law.16.   Basing on the above said pleadings, the Court below\n\nframed the following issues.(1)   Whether the sale certificate issued in favour of the\n            plaintiff dated 27.07.2004 by the Swiss Court valid,\n            binding on the defendants?(2)   Whether the plaintiff is entitled to 22.5% share from\n            the suit schedule property?(3)   To what relief?26PNR, J & JSR, J\n                                                 CCCA.No.47of 2021 andCCCA No.48 of 202117.    The Court below framed common issue in both the suits\n\ni.e.\n\n       (1).   whether the sale certificate issued in favour of the\n              plaintiff dated 27.07.2004 by the Swiss Court valid,\n              binding on the defendants?18.    The Court below clubbed both the suits, O.S. No.164 of\n\n2005 and O.S. No.64 of 2009 as per the orders in I.A. No.1182\n\nof 2019, dated 23.04.2019, but on the date of clubbing of the\n\nsuits in O.S. No.164 of 2005 trial was completed, suit was\n\ncoming for arguments.      Therefore, the Court below recorded\n\nevidence in OS No.64 of 2009 separately and documents were\n\nalso marked separately.19.    In O.S. No.64 of 2009 on behalf of plaintiffs, P.W.1 was\n\nexamined and Exs.A.1 to A.58 documents were marked.               On\n\nbehalf of defendants, D.W.1 was examined and Exs.B.1 to B.8\n\ndocuments were marked.20.    In O.S. No.164 of 2005 on behalf of plaintiffs, P.Ws. 1 and\n\n2 are examined and Exs.A.1 to A.54 documents were marked.\n\nOn behalf of defendants, DWs.1 and 2 are examined and\n\nExs.B.1 to B.15 were marked.27PNR, J & JSR, J\n                                                    CCCA.No.47of 2021 andCCCA No.48 of 202121.   The Court below after considering the contentions of the\n\nrespective parties, oral and documentary evidence on record\n\nand after hearing the parties decreed the suits by its common\n\njudgment and decree dated 10.03.2021.21.1 In   O.S.   No.64    of   2009   the   Court   below      granted\n\npreliminary decree for partition of the suit schedule property\n\ninto five shares and allotting one such share to the defendant\n\nNo.5 by metes and bounds and further held that the 1/5th share\n\nof the defendant No.5 is allotted to the 2nd plaintiff, the assignee\n\nof the 1st plaintiff. The Court below further held that the suit of\n\nthe plaintiff is decreed for future mesne profits from the date of\n\nEx.A.1 dated 27.09.2004 till the date of realisation by filing\n\nseparate application underOrder 20 Rule 12 of CPC. The claim\n\nmade by the plaintiff for rents is refused. The Court below while\n\ndecreeing the suit has given specific finding that in respect of\n\neach issue holding that the plaintiffs have mentioned that they\n\nare entitled to passing of preliminary decree for partition and\n\ndefendant Nos. 1 to 5 are entitled to 1/5th share in the suit\n\nschedule property. The Court below further held that the sale\n\ncertificate Ex.A.1 is binding on the Court as perSections 13and14of Civil Procedure Code. The plaintiffs are claiming the share\n\nfrom the suit schedule property as per sale certificate Ex.A.1 as28PNR, J & JSR, J\n                                                   CCCA.No.47of 2021 andCCCA No.48 of 2021the plaintiff No.1 acquired the rights from the suit schedule\n\nproperty pursuant to the sale certificate (Ex.A.1) as he\n\npurchased the property through auction.             Thereafter, the\n\nplaintiff No.1 executed assignment deed in favour of plaintiff\n\nNo.2 assigning share for 22.5%.22.   Similarly, in OS No.164 of 2005 the Court below passed\n\nthe preliminary decree as follows:a) The suit of plaintiffs is preliminarily decreed for partition\n      of the suit schedule property into 2 equal shares in 45%\n      share of owners (D.6 & D.10) and for separate possession\n      by metes and bounds.b) The 22.5% share of defendant No.10 i.e. Altaf Hussain\n      Khan out of 45% share of the owners i.e. defendant Nos.6\n      & 10, is allotted to plaintiff No.2, the assignee of the\n      plaintiff No.1.c) The suit is decreed for determination of the future mesne\n      profits from the date of Ex.A.1 till the date of realisation\n      on filing separate application under Order 20 Rule of 12CPCat the time of Final Decree proceedings on appointing\n      an advocate-Commissioner.d) The claim of rents is refused.23.   Sri A. Prabhakar Rao, learned counsel for the appellant\n\nvehemently contended that the Court below without properly\n\nconsidering   the   contentions    of   the   defendant   No.4     and\n\ndefendant No.10, oral and documentary evidence on record\n\nerroneously passed the preliminary decrees.               He further29PNR, J & JSR, J\n                                                   CCCA.No.47of 2021 andCCCA No.48 of 2021contended that the suit filed by the plaintiff for seeking partition\n\nof the suit schedule property into five shares and for separate\n\npossession and allotment of one share to 5thdefendant and\n\nfurther allotment of 1/5th share of defendant No.5 is allotted to\n\nplaintiff No.2, the assignee of plaintiff No.1 is not maintainable\n\nunder law. The sale certificate/Ex.A.1does not come within the\n\ndefinition of 'decree' and basing on the same, the plaintiff is not\n\nentitled to seek any relief much less the relief sought in the suit.\n\n\n23.1. He further contended that the Switzerland Court is not\n\nhaving any jurisdiction or competency to grant partition of the\n\nsuit schedule property and allotment of respective shares in\n\nfavour of the plaintiffs pursuant to the sale certificate/Ex.A.1\n\nand is not permissible under law. He further contended that\n\nthe plaintiff has not filed any suit and obtained the decree and\n\njudgment in Switzerland Court and the sale certificate/Ex.A.1\n\nissued by the Switzerland Court is not a decree as defined\n\nunderSection 2 (2)of CPC.       He further contended that the\n\nSwitzerland Court has not passed any order or decree in favour\n\nof plaintiff and Ex.A.1 is only sale certificate and the same\n\ncannot be treated as judgment and basing on the same, the\n\nplaintiff is not entitled to institute the suit and the suit filed by\n\nthe plaintiff is not maintainable especially as per the provisions30PNR, J & JSR, J\n                                                   CCCA.No.47of 2021 andCCCA No.48 of 2021ofSection 13of C.P.C. The sale certificate issued by the\n\nSwitzerland Court does not come within the definition of foreign\n\njudgment as defined as judgment underSection 13of C.P.C.\n\n\n23.2. He further contended that the plaintiff No.1 filed the suit\n\nfor seeking partition, separate possession and allotment of 1/5th\n\nshare in favour of 5th defendant and the said share is allotted to\n\nplaintiff No.2, the assignee of plaintiff No.1. The plaintiff No.2 is\n\nonly a G.P.A holder and the plaintiff No.1 was not entered into\n\nwitness box to establish her claim as required under law. The\n\nplaintiff No.2, a G.P.A. holder of plaintiff No.1 entered into\n\nwitness box and basing on his evidence the Court below decreed\n\nthe suit and the same is not permissible under law. Unless and\n\nuntil the plaintiff No.1 enters into the witness box the evidence\n\nof G.P.A holder cannot be taken into consideration. He further\n\ncontended that the plaintiff is claiming the relief basing on the\n\nassignment deed and the said document is not unstamped and\n\nunregistered and the same cannot be admissible into evidence\n\nas per the provisions ofSection 35of Indian Stamp Act, 1899\n\nandSection 17of Indian Registration Act, 1908.            The said\n\ndocument is compulsory required stamp duty and registration.\n\nThe Court below without considering the contentions raised by\n\nthe defendant No.4, decreed the suit basing on the said31PNR, J & JSR, J\n                                                    CCCA.No.47of 2021 andCCCA No.48 of 2021unstamped and unregistered assignment deed.                He further\n\ncontended    that    the   Switzerland    Court   issued    the    Sale\n\nCertificate/Ex.A.1    in   Insolvency    Proceedings,   wherein     the\n\ndefendant is not a party to the said proceedings and the said\n\nsale certificate issued by the Switzerland Court in insolvency\n\nproceedings is not binding upon the defendant.                In such\n\ncircumstances, the plaintiff is not entitled to claim any share in\n\nthe suit schedule property.23.3. He further contended that the Insolvency Court at\n\nSwitzerland issued the sale certificate in favour of the plaintiff to\n\nthe extent of creating litigious rights sold in respect of\n\nHimayathnagar property of defendant No.1.            Basing on the\n\nsame, the plaintiff ought to have filed independent suit for\n\nestablishing their claim in the suit schedule property. On the\n\nother hand, the plaintiff filed suit for seeking partition and\n\nallotment of respective shares straight away in the absence of\n\nany judgment and decree passed by the Switzerland Court as\n\nrequired underSection 13of Civil Procedure Code, 1908.\n\nHence, the judgment and decree passed by the Court below is\n\ncontrary to the law and the same is liable to be set aside.32PNR, J & JSR, J\n                                                 CCCA.No.47of 2021 andCCCA No.48 of 202124.   Per contra, the party-in-person contended that the Court\n\nbelow after considering the oral and documentary evidence on\n\nrecord and after hearing both the parties decreed the suit by\n\ngiving cogent findings in respect of each issue and there is no\n\nillegality and irregularity in the impugned judgment passed by\n\nthe Court below.    He further contended that the Insolvency\n\nCourt at Switzerland after following due procedure passed the\n\norder against the defendant No.5 who contested the proceedings\n\nat Switzerland Court and the defendant No.5 has not questioned\n\nthe orders passed by the Insolvency Court and the same is\n\nbinding upon him. He further contended that pursuant to the\n\nInsolvency Court judgment only, Ex.A.1/sale certificate was\n\nissued in favour of the plaintiffs. He further contended that the\n\nplaintiff is an auction purchaser and he purchased the rights\n\nover the suit schedule property in respect of share of defendant\n\nNo.5. The sale certificate/Ex.A.1 issued by the competent Court\n\nat Switzerland comes within the definition ofSection 2(2)of\n\nC.P.C and also comes within the definition ofSection 13foreign\n\njudgmentof C.P.C. He further contended that pursuant to the\n\nsale certificate and assignment deed, the plaintiffs rightly filed\n\nthe suit for seeking partition of the suit schedule property and\n\nallotment of 1/5th share in favour of defendant No.5 and the33PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021same to be allotted in favour of plaintiffs on the ground that as\n\non the date of issuance of     sale certificate by the Insolvency\n\nCourt at Switzerland, the defendant No.5 pleaded that the suit\n\nschedule property is under joint family custody and the\n\ndefendant No.5 is not having exclusive possession.          In such\n\ncircumstances, the Court below rightly passed the preliminary\n\ndecree after adjudicating all the issues by giving cogent findings\n\nholding that the defendant No.5 is entitled 1/5th share in the\n\nsuit schedule property and further held that the plaintiffs have\n\nrightly purchased the litigious property through assignment\n\ndeed, sale certificate/Ex.A.1 issued by competent Court at\n\nSwitzerland.   Hence, the decree and judgment passed by the\n\nCourt below granting preliminary decree is valid under law and\n\nthere is no illegality, irregularity in the impugned judgment and\n\nthe appeals filed by the defendant No.4 and defendant No.10 are\n\nnot maintainable under law and the same are liable to be\n\ndismissed.25.   Sri    Kowturu   Pavan   Kumar,   learned    amicus      curiae\n\nsubmitted that the creditor/plaintiff obtained an order before\n\nthe Insolvency Proceedings on 17.06.1997 and 04.08.1997.\n\nThereafter attachment order was passed on 05.11.1997 by the\n\nSwitzerland Court.     Finally the Switzerland Court conducted34PNR, J & JSR, J\n                                                        CCCA.No.47of 2021 andCCCA No.48 of 2021sale by way of auction on 10.09.2004.                    Plaintiffs have\n\npurchased the property through auction. Later Switzerland\n\nCourt issued sale certificate/Ex.A.1 in favour of the plaintiffs in\n\nsale proceedings.    The plaintiffs filed suit for partition and\n\nallotment of 1/5th share of defendant No.5 in favour of the\n\nplaintiffs basing upon the Ex.A.1/sale certificate only. Hence,\n\nthe sale certificate issued by the foreign Court comes within the\n\nambit ofSection 2(2)of CPC as well asSection 13of CPC and\n\nthe suit filed by the plaintiffs is very much maintainable under\n\nlaw.   He further submitted that the oral and documentary\n\nevidence on record shows that the properties were seized by the\n\nSwitzerland Authorities under the Swiss Law when the same\n\nwere already attached by the Court of I Addl. Senior Civil Judge,\n\nCity Civil Court in O.S. No.164 of 1994 and were released by the\n\nsaid Court from attachment on 12.03.1999. As on the date of\n\nsale, auction on 10.09.2004 in Switzerland there were no\n\nattachments    in   respect   of    the    said   properties      by    any\n\nindependent    Courts.     So,     the    allegations    made      by   the\n\nappellant/D-4 in the appeal that when the attachment order\n\nwas passed in O.S. No.361/1994 is continuing the Switzerland\n\nCourt is not having jurisdiction, power or Authority to pass35PNR, J & JSR, J\n                                                           CCCA.No.47of 2021 andCCCA No.48 of 2021orders and issuance of sale certificate/Ex.A.1 is contrary to the\n\nevidence on record.26.In support of his submissions, the learned amicus curiae\n\nrelied upon the reported judgment inAlcon Electronics\n\nPrivate Limited Vs. Celem S.A. of FOS34320 Roujan,\n\nFrance and Another1.27.    The    principles evolved in Alcon Electronics Private\n\nLimited concerning immovable properties, particularly Lexsitus\n\nand personal jurisdiction, the application of principles of comity\n\nin the enforcement of foreign judgment/decision, Indian Courts\n\nhave to give due weight to such order unless it falls under any\n\nof the exceptions underSection 13of CPC.28.    Having considered the submissions of the respective\n\nparties and taking into consideration the pleadings, material\n\nevidence on record, the following points arise for consideration:1.     Whether the suit filed by the plaintiffs for seeking\n       partition of the suit schedule property into 5 shares and\n       for separate possession and allotting one such share to\n       defendant No.5 by metes and bounds, the 1/5th share of\n       defendant No.5 is allotted to plaintiff No.2 the assignee of\n\n\n\n(2017) 2 SCC 253 : (2017)1 SCC (Civ) 618: 2016 SCC OnLine SC 1444.136PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021plaintiff No.1 basing on Ex.A.5/sale certificate dated\n      27.09.2004 is maintainable under law?2.    Whether the plaintiff is entitled for seeking partition of the\n      suit schedule property into two equal shares in 45% share\n      of owners and separate possession and allotment of\n      22.5% share of defendant No.10 in favour of plaintiff No.2,\n      who is assignee of plaintiff No.1 is maintainable?3.    Whether the sale certificate/Ex.A.1 can be treated as\n      Decree as envisaged underSection 2 (2)of CPC?4.    Whether the sale certificate/Ex.A.1 can be treated as\n      foreign judgment and basing on the same the plaintiff is\n      entitled to file suit as per the provisions ofSection 13of\n      CPC.5.    Whether the assignment deed/Ex.A.34 is required stamp\n      duty and registration as per the provisions ofSection 35of Indian Stamp Duty andSection 17of Registration Act?6.    Whether the preliminary decree and judgment passed by\n      the Court below is sustainable under law.7.    To what relief?POINT NOS. 1 TO 7 :29.   Having considered the rival submissions and after going\n\nthrough the material evidence on record, it clearly shows that\n\nthe plaintiffs have filed two suits viz., O.S. No. 64 of 2009 for\n\nseeking partition of the suit schedule property i.e.          House\n\nbearing Municipal No.3-6-19, admeasuring 3000 square yards,\n\nsituated at Himyatnagar, Hyderabad into five shares and allot\n\none such share to the plaintiffs and also future mesne profits\n\nand O.S. No.164 of 2005 for seeking partition of the suit37PNR, J & JSR, J\n                                                   CCCA.No.47of 2021 andCCCA No.48 of 2021schedule property i.e. House bearing No.5-9-186, Chapel Road,\n\nHyderabad, admeasuring 1187 Square yards into five shares\n\nand allot 22.5% share of the same along with a decree for\n\nrecovery of rents that have accrued from 05.11.1997 with\n\ninterest and future mesne profits. The Court below after\n\nconsidering the evidence of P.W.1 & P.W.2 and Exs.A.1 to A.54,\n\nD.Ws.1 & 2, Exs.B.1 to B.15 in O.S. No. 164 of 2005 and\n\nevidence of P.W.1, Exs.A.1 to A.58 and evidence of Exs.B.1 to\n\nB.8 passed common judgment and decreed the suit granting\n\npreliminary decree by giving cogent findings.30.    The evidence on record further reveals that the Insolvency\n\nCourt at Switzerland after following the due procedure passed\n\nthe order against the defendant No.5 who contested the\n\nproceedings at Switzerland Court has not questioned the orders\n\npassed by the Insolvency Court and the same is binding upon\n\nhim.   Pursuant   to   the    Insolvency   Court   judgment      only,\n\nEx.A.1/Sale Certificate was issued in favour of the plaintiffs.The plaintiff is an auction purchaser and he purchased the\n\nrights over the suit schedule property in respect of share of\n\ndefendant No.5. The sale certificate/Ex.A.1 issued by the\n\ncompetent Court at Switzerland comes within the definition ofSection 2(2)of C.P.C.       Pursuant to the sale certificate and38PNR, J & JSR, J\n                                                 CCCA.No.47of 2021 andCCCA No.48 of 2021assignment deed only, the plaintiffs have filed the suit for\n\nseeking partition of the suit schedule property and allotment of\n\n1/5th share in favour of defendant No.5 and the same to be\n\nallotted in favour of plaintiffs on the ground that as on the date\n\nof issuance of sale certificate/Ex.A.1 by the Insolvency Court at\n\nSwitzerland, the defendant No.5 pleaded that the suit schedule\n\nproperty was under the joint family possession            and the\n\ndefendant No.5 is not having exclusive rights over the property.\n\nIn view of the same, the Court below rightly passed the\n\npreliminary decree in favour of plaintiffs holding that the\n\nplaintiffs have rightly purchased the litigious property through\n\nassignment deed, sale certificate/Ex.A.1 issued by competent\n\nCourt at Switzerland.31.   The contentions raised by the learned counsel for the\n\nappellant are that the suit filed by the plaintiff for seeking\n\npartition of the suit schedule property into five shares and for\n\nseparate possession and allotment of one share to 5th defendant\n\nand further allotment of 1/5th share of defendant No.5 is\n\nallotted to plaintiff No.2, the assignee of plaintiff No.1 is not\n\nmaintainable under law.    The sale certificate/Ex.A.1 does not\n\ncome within the definition of 'decree' as defined underSection 2\n\n(2)of CPC. and basing on the same, the     Switzerland Court is39PNR, J & JSR, J\n                                                     CCCA.No.47of 2021 andCCCA No.48 of 2021not having any jurisdiction or competency to deal with the\n\nproperties situated in India especially, when the plaintiff has not\n\nfiled any suit or obtained the decree and judgment in\n\nSwitzerland Court. The other contention raised by the learned\n\ncounsel for the appellant is that the plaintiff No.2 is only a\n\nG.P.A. holder and the plaintiff No.1 did not enter into witness\n\nbox to prove her entire claim as required under law.        The Court\n\nbelow erred in decreeing the suit basing on evidence of GPA\n\nholder.    Similarly, the other ground raised by the learned\n\ncounsel for the appellant is that the plaintiff is claiming the\n\nrelief basing on the assignment deed which is unstamped and\n\nunregistered document and the same is inadmissible in\n\nevidence as per the provisions ofSection 35of Indian Stamp\n\nAct, 1899 andSection 17of Indian Registration Act, 1908. The\n\nother ground raised by the appellant is that the Switzerland\n\nCourt     issued   the   Sale   Certificate/Ex.A.1    in    Insolvency\n\nProceedings, wherein the defendant No.4 and defendant No.10\n\nin both the appeals are not parties to the said proceedings and\n\nthe said sale certificate issued by the Switzerland Court in\n\nInsolvency Proceedings is not binding upon the appellant.40PNR, J & JSR, J\n                                                       CCCA.No.47of 2021 andCCCA No.48 of 202131.1 The last ground raised by the learned counsel for the\n\nappellant is that the Insolvency Court at Switzerland issued the\n\nsale certificate in favour of the plaintiff to the extent of creating\n\nlitigious rights sold in respect of Himayathnagar property of\n\ndefendant No.1. Basing on the same, the plaintiff ought to have\n\nfiled independent suit for establishing their claim in the suit\n\nschedule property. On the other hand, the plaintiff filed suit for\n\nseeking partition and allotment of respective shares straight\n\naway in the absence of any judgment and decree passed by the\n\nSwitzerland Court as required underSection 13of Civil\n\nProcedure Code, 1908.32.   The     party-in-person       rightly     contended      that    the\n\ncreditor/plaintiff     obtained    an     order   in   the     Insolvency\n\nProceedings    on      17.06.1997        and   04.08.1997,      thereafter\n\nattachment order was passed on 05.11.1997 by the Switzerland\n\nCourt. Finally the Switzerland Court conducted sale by way of\n\nauction on 10.09.2004. Plaintiffs have purchased the property\n\nthrough     auction.    Later     Switzerland     Court      issued   sale\n\ncertificate/Ex.A.1 in favour of the plaintiffs in sale proceedings.\n\nThe plaintiffs filed suit for partition and allotment of 1/5th share\n\nof defendant No.5 in favour of the plaintiffs basing upon the\n\nEx.A.1/sale certificate only. Hence, the sale certificate issued41PNR, J & JSR, J\n                                                    CCCA.No.47of 2021 andCCCA No.48 of 2021by the foreign Court comes within the ambit ofSection 2 (2)of\n\nCPC as well asSection 13of C.P.C. and the suit filed by the\n\nplaintiffs is very much maintainable under law.           He further\n\nsubmits that the oral and documentary evidence on record\n\nshows that the properties were seized by the Switzerland\n\nAuthorities under the Swiss Law when the same were already\n\nattached by the Court of I Addl. Senior Civil Judge, City Civil\n\nCourt in OS No.164 of 1994 and were released by the said Court\n\nfrom attachment on 12.03.1999. As on the date of auction on\n\n10.09.2004 in Switzerland there were no attachments in respect\n\nof the said properties by any independent Courts.33.   The grounds raised by the learned counsel for the\n\nappellant are contrary to the settled principles of law.            The\n\ndefendant No.5 was declared as insolvent in the Insolvency\n\nProceedings before Switzerland Court and the said Court\n\nconducted public auction in respect of share of the defendant\n\nNo.5 property after following the due procedure as contemplated\n\nunder law. In the said auction the plaintiff No.1 had purchased\n\nthe rights over the properties of D-5.        The said Switzerland\n\nCourt had issued sale certificate.      After issuance of the sale\n\ncertificate the plaintiffs have filed suit for partition for allotment\n\nof defendant No.5 share in their favour as the properties covered42PNR, J & JSR, J\n                                                    CCCA.No.47of 2021 andCCCA No.48 of 2021under Ex.A.1/sale certificate is in joint possession of defendant\n\nNo.5 family. In view of the same, the suit filed by the plaintiffs\n\nfor seeking partition and allotment of 1/5th share to the\n\ndefendant No.5 is very much maintainable under law.34.     Insofar as the contention raised by the learned counsel for\n\nthe appellant that the Ex.A.1/sale certificate as well as\n\nassignment deed executed by plaintiff No.1 in favour of plaintiff\n\nNo.2 are required stamp duty and registration, it is to be noted\n\nthat the Insolvency Court issued sale certificate/Ex.A.1 in\n\nfavour of the plaintiff granting rights over the properties of D-5\n\nand the said document is not required registration and stamp\n\nduty.    Similarly, by the assignment deed executed by plaintiff\n\nNo.1, who is none other than the mother of the plaintiff No.2,\n\nonly assigned her rights in favour of plaintiff No.2 and the same\n\nis not required registration. Further, the plaintiffs are required\n\nto file suit for seeking partition of the suit schedule property\n\nand allotment of respective share is also not tenable.35.     With respect to the validity of the auction sale certificate,\n\nthe Indian Civil Procedure Code also permits an auction sale\n\nand     purchase   by the    creditor   in   Enforcement/Execution\n\nProceedings pursuant to debt recovery auction. It has been43PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021settled by the Hon'ble Supreme Court in various decisions that\n\nsale by auction and sale certificate issued by the authorities\n\nincluding confirmation of sale, which are outcome of the auction\n\nproceedings conducted in terms of Court orders need not be\n\ncompulsorily registrable underSection 17of the Registration\n\nAct.36.    It is pertinent to mention here that in the present case,\n\nthe properties have been seized and realized by auction sale by\n\nthe Swiss Authorities in Enforcement Proceedings pursuant to\n\ndefault in payment of debt which is an in personam action. The\n\ndebtor submitted to the personal jurisdiction before the Swiss\n\nCourts   and   Authorities   and    surrendered    his    properties\n\nincluding in India in seizure proceedings. The debtor exhausted\n\nall his legal remedies under Swiss Law, as a result of which the\n\nproperties were subject to auction sale.37.    In Morguard Investments Ltd. v. De Savoye (1990), 76\n\nD.L.R. (4th) 256 (S.C.C.)., regardless of where the defendant was\n\nlocated when the action was commenced and of whether the\n\ndefendant submitted to its jurisdiction in any way, the Court\n\nheld that the judgment of one Canadian province should be\n\nrecognized in other Canadian provinces if the recognizing Court\n\nfound that there had been a real and substantial connection44PNR, J & JSR, J\n                                                           CCCA.No.47of 2021 andCCCA No.48 of 2021between the action and the originating province. The theoretical\n\nor principled justification for this new generosity was the\n\nconcept of comity and its special manifestation in Canada, the\n\nfederal principle. Morguard also spoke of larger principles\n\ngoverning private international law generally:38.In the case ofB. Arvind Kumar v. Government of\n\nIndia2, the above viewpoint was reiterated as follows,\n\n      "12. ...When a property is sold by public auction in pursuance\n      of an order of the court and the bid is accepted and the sale is\n      confirmed by the court in favour of the purchaser, the sale\n      becomes absolute and the title vests in the purchaser. A sale\n      certificate is issued to the purchaser only when the sale\n      becomes absolute. The sale certificate is merely the evidence of\n      such title. It is well settled that when an auction purchaser\n      derives title on confirmation of sale in his favour, and a sale\n      certificate is issued evidencing such sale and title, no further\n      deed of transfer from the court is contemplated or required. In\n      this case, the sale certificate itself was registered, though such a\n      sale certificate issued by a court or an officer authorized by the\n      court, does not require registration.Section 17(2)(xii)of the\n      Registration Act, 1908 specifically provides that a certificate of\n      sale granted to any purchaser of any property sold by a public\n      auction by a civil or revenue officer does not fall under the\n      category of non-testamentary documents which require\n      registration under sub-section (b) and (c) ofsection17(1)of the\n      said Act. We therefore hold that the High Court committed a\n      serious error in holding that the sale certificate did not convey\n      any right, title or interest to plaintiff's father for want of a\n      registered deed of transfer."39.In a recent case of the Delhi High Court in Toshiaki Aiba\n\nasBankruptcy Trustee v. Vipan Kumar Sharma, 2022 SCC\n\nOnLine Del 1260, the High Court has considered India's\n\nJurisdiction to enforce foreign bankruptcy and insolvency\n\n\n(2007) 5 SCC 745245PNR, J & JSR, J\n                                                        CCCA.No.47of 2021 andCCCA No.48 of 2021orders. In this case a Bank of Tokyo Mitsubishi UBJ had\n\nexecuted a loan agreement with the shipping company.                     One\n\nVipan Kumar Sharma acted as the guarantor of the shipping\n\ncompany. When the company defaulted in the repayment of the\n\nloan, and when the guarantor also faulted in paying the loan,\n\nthe Bank declared the guarantor as bankrupt and initiated\n\ninsolvency proceedings against the same. The bank then\n\nappointed a bankruptcy trustee to administer and investigate\n\nthe Guarantors' estates in India to recuperate the losses. The\n\nGuarantor anticipating seizure of the properties situated in\n\nIndia transferred them to his relatives. The Bankruptcy moved\n\nto Delhi High Court claiming the said transfer to be fraudulent\n\nand invalid.     The Delhi High Court in this context held as\n\nunder:"17. Next, it is contended on behalf of the defendants that Japan\n    is not a reciprocating territory in respect ofSection 44Aof the\n    CPC, so there cannot be any proceedings for execution of the\n    decree of a Japanese Court.18.In the opinion of this Court and as stated above, by the way of\n    the present suit, the plaintiff is not seeking execution of the\n    decree of the Japanese Court. The suit has been filed to\n    administer the suit properties of the bankrupt defendant no. 1\n    towards realization of monies. Therefore,Section 44Aof the CPC\n    would have no application.19. It is further contended on behalf of the defendants that the\n    order dated 4th January, 2016 passed by the Tokyo District\n    Court has no evidentiary value in India, as it is passed by the\n    court of a non-reciprocating territory.46PNR, J & JSR, J\n                                                             CCCA.No.47of 2021 andCCCA No.48 of 202120. In this regard, reference may be made toSections 13and14of the CPC, which deal with foreign judgments. The same are set\n      out below:"13.Whenforeign judgment not conclusive. --A foreign judgment\n      shall be conclusive as to any matter thereby directly adjudicated\n      upon between the same parties or between parties under whom\n      they or any of them claim litigating under the same title except--(a) where it has not been pronounced by a Court of\n      competent jurisdiction;(b) where it has not been given on the merits of the case;(c) where it appears on the face of the proceedings to be\n      founded on an incorrect view of international law or a\n      refusal to recognise the law of 1[India] in cases in which\n      such law is applicable;(d) where the proceedings in which the judgment was\n      obtained are opposed to natural justice;(e) where it has been obtained by fraud;(f) where it sustains a claim founded on a breach of any law\n      in force in 1[India].14.Presumption as to foreign judgments. --The Court shall\n      presume, upon the production of any document purporting to be\n      a certified copy of a foreign judgment, that such judgment was\n      pronounced by a Court of competent jurisdiction, unless the\n      contrary appears on the record; but such presumption may be\n      displaced by proving want of jurisdiction."40.InAlcon     Electronics      Private    Limited(supra) while\n\nanalysing the aforesaid provisions, the Supreme Court has\n\nobserved as under:"14. A plain reading ofSection 13CPC would show that to be\n      conclusive an order or decree must have been obtained after\n      following the due judicial process by giving reasonable notice and\n      opportunity to all the proper and necessary parties to put forth their\n      case. When once these requirements are fulfilled, the executing\n      court cannot enquire into the validity, legality or otherwise of the\n      judgment.47PNR, J & JSR, J\n                                                         CCCA.No.47of 2021 andCCCA No.48 of 202115.A glance on the enforcement of the foreign judgment, the\n   position at common law is very clear that a foreign judgment which\n   has become final and conclusive between the parties is not\n   impeachable either on facts or law except on limited grounds\n   enunciated underSection 13CPC. In construingSection 13CPC we\n   have to look at the plain meaning of the words and expressions\n   used therein and need not look at any other factors. Further, underSection 14CPC there is a presumption that the foreign court which\n   passed the order is a court of competent jurisdiction which of\n   course is a rebuttable presumption. In the present case, the\n   appellant does not dispute the jurisdiction of the English Court but\n   its grievance is, it is not executable on other grounds which are\n   canvassed before us."23. Applying the aforesaid principles to the facts of the present\n   case, it cannot be said that judgment dated 17th June, 2016 of\n   the Tokyo High Court, dismissing the appeal filed on behalf of the\n   defendant no. 1, falls under any of the exceptions provided inSection 13above. On the face of it, the aforesaid judgment fulfils\n   the requirement of due process and was passed after noting the\n   various contentions raised on behalf of the defendant no. 1.\n   Therefore, the aforesaid judgment would be conclusive as to the\n   defendant no. 1 being declared bankrupt in Japan and the\n   plaintiff being appointed as the bankruptcy trustee to administer\n   the estate of the defendant no. 1, even outside Japan. The\n   plaintiff, who is the bankruptcy trustee, in the present\n   proceedings is not seeking to execute the aforesaid judgment in\n   terms ofSection 44Aof the CPC, but is acting in furtherance ofthe said judgmentso as to administer the estate of the defendant\n   no. 1, who has been adjudicated as being bankrupt in Japan.\n   There is no bar under the provisions of the IBC against filing\n   such a suit. Therefore, there is no merit in the contention that the\n   plaintiff does not have the locus standi to file the present suit."19.The principles of comity of nation demand us to respect the\n   order of English Court. Even in regard to an interlocutory order,\n   Indian Courts have to give due weight to such order unless it falls\n   under any of the exceptions underSection 13CPC. Hence, we feel\n   that the order in the present case passed by the English Court\n   does not fall under any of the exceptions toSection 13CPC and it\n   is a conclusive one. The contention of the appellant that the order\n   is the one not on merits deserves no consideration and therefore\n   liable to be rejected. Accordingly, Issue (i) is answered.XXX XXXXXX37. It is to the reciprocal advantage of the courts of all nations to\n   enforce foreign rights as far as practicable. To this end, broad\n   recognition of substantive rights should not be defeated by some\n   vague assumed limitations of the court. When substantive rights48PNR, J & JSR, J\n                                                          CCCA.No.47of 2021 andCCCA No.48 of 2021are so bound up in a foreign remedy, the refusal to adopt the\n      remedy would substantially deprive parties of their rights. The\n      necessity of maintaining the foreign rights outweighs the practical\n      difficulties involved in applying the foreign remedy. In India,\n      although the interest on costs are not available due to exclusion\n      ofSection 35(3), the same does not mean that Indian Courts are\n      powerless to execute the decree for interest on costs. Indian\n      Courts are very much entitled to address the issue for execution\n      of the interest amount. The right to 8% interest as per the\n      Judgments Act, 1838 of UK can be recognised and as well as\n      implemented in India."25.In this regard, reference may also be made to the observations\n      of the Division Bench of this Court inSRM Exploration Pvt. Ltd. v.\n      N & S & N Consultants S.R.O., 2012 SCC OnLine Del 1714. The\n      observations are as under:"13. ...The world is a shrinking place today and commercial\n      transactions spanning across borders abound. We have wondered\n      whether we should be dissuaded for the reason of the transaction\n      for which the appellant Company had stood surety/guarantee\n      being between foreign companies. We are of the opinion that if we\n      do so, we would be sending a wrong signal and dissuading foreign\n      commercial entities from relying on the assurances/guarantees\n      given by Indian companies and which would ultimately restrict the\n      role of India in such international commercial transactions."26. Applying the aforesaid principles, the judgments passed by\n      the foreign courts have to be respected by the Indian Courts,\n      unless the same are shown to be falling under the limited\n      exceptions provided inSection 13of the CPC. The Plaintiff, being\n      the Bankruptcy Trustee appointed by the Japanese court, is\n      seeking the assistance of the courts in India, to administer assets\n      of defendant no. 1 in India. There is no reason why a person who\n      has been declared bankrupt by a foreign court in terms of the law\n      applicable to that jurisdiction, should be afforded protection by\n      the Indian Courts on technical objections being raised with\n      regard to the validity of the foreign judgment. In the modern\n      times of globalization, foreign creditors cannot be treated\n      differently from domestic creditors.41.InEnercon (India) Ltd. v. Enercon Gmbh3theHon'ble\n\nSupreme Court observed:"137.The kind of difficulties that can be caused by Courts in\n       two countries exercising concurrent jurisdiction over the same\n       subject matter have been very succinctly set down by Lord\n       Brandon in Abdin Vs. Daveu (supra)- as follows:(2014) 5 SCC 1349PNR, J & JSR, J\n                                                            CCCA.No.47of 2021 andCCCA No.48 of 2021"In this connection it is right to point out that, if concurrent\n        actions in respect of the same subject matter proceed together\n        in two different countries, as seems likely if a stay is refused in\n        the present case, one or other of the two undesirable\n        consequences may follow: first, there may be two conflicting\n        judgments of the two courts concerned; or secondly, there may\n        be an ugly rush to get one action decided ahead of the other in\n        order to create a situation of res judicata or issue estoppel in\n        the latter." Lord Diplock said in the same case:"Comity demands that such a situation should not be permitted\n        to occur as between courts of two civilised and friendly states";\n        it would be, he said, "a recipe for confusion and injustice". As\n        Bingham LJ said in Dupont No 1 the policy of the law must be\n        to favour the litigation of issues only once in the most\n        appropriate forum. The interests of justice require that one\n        should take into account as a factor the risks of injustice and\n        oppression that arise from concurrent proceedings in different\n        jurisdictions in relation to the same subject matter."42.     In the instant case, the auction purchaser has obtained\n\nthe sale certificate with respect to scheduled properties by\n\nfollowing the due process of law, through the Insolvency\n\nProceedings in Switzerland. On perusal of the documentary\n\nevidence and the legal history of the Insolvency Proceedings in\n\nthe Courts of Switzerland, it can be seen that the auction sale\n\ncertificate has been issued by a Court of a competent\n\njurisdiction and thus passes the test ofSection 13of C.P.C. The\n\nauction     purchaser,      who     has     obtained     the   auction        sale\n\ncertificate, has been subjected to the strain of litigation since the\n\nlast twenty years, and has been denied to enjoy the fruits of the\n\nsame.50PNR, J & JSR, J\n                                                 CCCA.No.47of 2021 andCCCA No.48 of 202143.    Moreover, in line with Delhi High Court Judgement of\n\nToshiaki Aiba asBankruptcy Trustee(Supra), a case with\n\nsimilar facts and circumstances which held that when a person\n\nwho has been declared bankrupt by foreign jurisdiction, there is\n\nno reason where Indian courts should grant them protection;\n\nthere should not be any discrimination between foreign creditors\n\nand domestic creditors in cross border insolvency proceedings.\n\nToday, owing to globalisation, the world is a shrinking place,\n\nand the principle of comity of nations which has been upheld in\n\nvarious Indian and International courts has to be applied while\n\nfacing with a situation like this.44.   The other contention raised by the learned counsel for the\n\nappellant that the plaintiff No.1 has not entered into the witness\n\nbox and plaintiff No.2, who is a G.P.A. holder, alone has given\n\nevidence and basing on his evidence the Court below decreed\n\nthe suit and the same is contrary to law also not tenable on the\n\nground that the plaintiff No.1 had participated in public auction\n\nand purchased the properties of defendant No.5 and the\n\ncompetent Court issued sale certificate in her favour.           The\n\nplaintiff No.1 and plaintiff No.2 who are mother and son jointly\n\nfiled the suit for partition and allotment of respective shares of\n\nD-5 and the plaintiff No.2, who is G.P.A. holder of plaintiff No.151PNR, J & JSR, J\n                                                 CCCA.No.47of 2021 andCCCA No.48 of 2021entered into the witness box and gave deposition on her behalf\n\nand also entered into witness box as an independent witness as\n\nP.W.2.    P.W.1 and P.W.2 proved the suit claim by producing\n\ndocumentary evidence also.        What was deposed by plaintiff\n\nNo.2 is what transpired in Switzerland Courts only and there\n\nwas nothing personally known to plaintiff No.1 which could not\n\nhave been deposed by plaintiff No.2.45.   Point Nos.1 to 7 are answered accordingly.46.   In view of the foregoing reasons, we are of the considered\n\nopinion that the Court below rightly passed preliminary decree\n\nin favour of the plaintiffs. Thus, viewed from any angle, there\n\nare no merits in the appeals and the same are liable to be\n\ndismissed, confirming the common judgment and decree of the\n\nCourt below passed in O.S. No.164 of 2005 and O.S. No.64 of\n\n2009 dated 10.03.2021.47.      Accordingly, the appeals are dismissed. There shall be no\n\norder as to costs.    As a sequel, miscellaneous applications if\n\nany, pending shall stand disposed of.___________________________\n                                      JUSTICE P. NAVEEN RAO\n\n                                  ______________________________\n                                  JUSTICE J. SREENIVAS RAO52PNR, J & JSR, J\n                                      CCCA.No.47of 2021 andCCCA No.48 of 202124-03-2023\nSkj\nNote : L.R. Copy to be marked.53PNR, J & JSR, J\n                                                  CCCA.No.47of 2021 andCCCA No.48 of 2021HONOURABLE SRI JUSTICE P. NAVEEN RAO\n                          AND\n         HONOURABLE SRI JUSTICE J. SREENIVAS RAO\n\n\n\n\n          CCCA No.47 of 2021 and CCCA No.48 of 2021\n\n\n\n\n                           Date :   24-03-2023.Note : L.R. Copy to be marked.B/o.Skj.54PNR, J & JSR, J\n     CCCA.No.47of 2021 andCCCA No.48 of 2021