TMI Blog1962 (4) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... he various changes in the law of civil procedure applicable at the various stages of the litigation leading to this appeal. We shall first deal with the integration of the Indian State of Gwalior with the Indian Union. Up to August 15, 1947, i.e. before the independence of India under the Indian Independence Act (10 11 Geo, Ch. 30) Gwalior was what was termed under the Government of India Act of 1935 an Indian State and its Courts were 'foreign courts' within s. 2 (5) of the Indian Code of Civil Procedure. After independence by s. 7 (i) (b) of that Act the suzerainty of the British Crown lapsed and so also all treaties, agreements and obligation which had previously been entered into between the Rulers of Indian States and the British Crown. The second Question can conveniently be dealt with at a later and appropriate stage. By the Instrument of Accession which by August 15, 1947, (p. 36 of White Paper on Indian States) was entered into between the Ruler of the State of Gwalior and the Dominion of India certain subjects mentioned in the schedule to that Instrument were transferred to the Dominion of India but Civil Procedure was not one of them. By a covenant signed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VI. A copy of this order along with copies of decree, certificate of non-payment of decretal amount and other orders passed in connection with execution be forwarded directly to the court of the Civil Judge, 1st Grade, Allahabad. Dated 14th September 1951. Enclosures:- 1. Certificate. 2. Application of the decree holder 3. Copy of decree in the case. 4. Copy of order, dated 25th April, 1950. Sd. B. K. Mehra. Addl. District Sessions Judge District Gwalior, Madhya Bharat . The parties were not in accord as to which of these orders was the real order for transfer. It is unnecessary to resolve this controversy because we shall proceed on the assumption that the order of transfer was the later one which the appellant has relied upon i.e. of September 14, 1951. On October 16,1951, the appellant filed in the Court of Civil Judge, Allahabad, an Application for execution of the decree for realisation of the amount due under it which by then had amounted to ₹ 8,98, 7 7-0. This was registered as Execution Case No.47 of 1951 'rho respondents filed their objections under s. 47 of the Code of Civil Procedure on February 8, 1952. They pleaded that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was a nullity was not taken away by the political changes and, therefore, the judgment of the learned Single Judge was upheld. Against this judgment and Order the appellant has come in appeal to this Court on a certificate under Art. 133(i) (a) and (e) of the Constitution; The vital question for decision is whether the decree passed by the Gwalior Court on November 18, 1948, was executable in the State of Uttar Pradesh which, was at one time, a part of what was British India, Gwalior at the relevant time being a part of the United State aforesaid. For this purpose, the questions that arise are:- 1. Was the decree a decree of a foreign court? 2. Could the Court at Gwalior order the transfer of the decree for execution in the Allahabad Civil Court? 3. If it could not, then was the decree executable at Allahabad under ss. 43 44 of the Code of Civil Procedure? and 4. Could the respondents-judgment debtors take an objection to the execution of the decree on the ground that it was an absolute nullity, being the decree of a foreign Court? We shall first enquire into the nationality of the decree passed in favour of the appellant which necessitates a determination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the Gwalior Court. In Halsbury's Laws of England Vol. VII p. 144, paragraph 257 (3rd Ed.) conditions necessary for giving jurisdiction to a foreign court are set out and at least one of them is required to be satisfied before a foreign judgment is regarded as having extra-territorial validity. None of them was satisfied in the present case. Firstly the respondents were not the subjects of Gwalior; they did not owe any allegiance to the Ruler of Gwalior and therefore they were under no obligation to accept the judgments of the courts of that State. Secondly the were not residents in that State when the suit was instituted. Thirdly they were not temporarily present in that State when the process was served on them. Fourthly they did not in their character as plaintiffs in the foreign action themselves selected the for-am where the judgment was given against them. Fifthly they did not voluntarily appear in that court. Sixthly they had not contracted to submit to the jurisdiction of the foreign court. The Gwalior Court therefore was not a court of competent jurisdiction. The judgment of Gwalior Court was therefore a nullity outside the United State (Madhya Bharat). See Gur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was in impediment to its executability which was removed as soon as the United State (Madhya Bharat) became a part of the Union of India and fourthly it was submitted that subsequent changes in the Indian Code consequent upon the promulgation of the Adaptation Order of January 26, 1950 under Art. 372 of that Constitution and subsequent amendment of the Order of June 5,1950, which became retrospectively operative from January 26, 1950 and by a subsequent Act [Civil Procedure Amendment Act (Act II of 1951] the Gwalior Court became competent to transfer its decrees for execution to the Court at Allahabad; and under the provisions of the Indian Code relating to execution amended from time to time the decree sought to be executed became executable by the Court at Allahabad. The first contention is unsustainable because the constitutional changes did not effect any change in the status or nationality of the Gwalior Court till after the passing of the decree of November 18, 1948 and there being no specific provision to the contrary those change left the decree unaffected. The United State (Madhya Bharat) had not become a part of the Dominion of India despite the various constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) S. C. R. 710, 730); [Keshavan Madhua Menon v. State of Bombay(1951) S. C. R 288). Before the Constitution, Madhya Bharat was not a Part B State but became one as a consequence of the Constitution. Therefore the decree which was sought to be executed remained a decree of a foreign court as defined in s. 2(5) of the Indian Code then applicable and its judgment had to be enforced in the manner that foreign judgments were enforceable i. e. either a suit had to be brought on the basis of that judgment or if there was a provision in the Indian Code it had to be executed in accordance with that provision; Mull's C. P. C. p.96; Dicey, Conflict of Laws, Rule 162(7th Ed.). A Judgement which is governed by the rule in Sirdar Gurdyal Sing's (1894) L.R. 21 I.A. 171) case not being by a court of competent jurisdiction in the international sense i. e. according to the principles of International Law (Cheshire, Private International Law, p. 641, 6th Ed.) and the respondent not having submitted to its jurisdiction is a nullity outside the territory of the State in which the,court passing the decree is situate. In that case it was said: In a personal action to which none of these caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian nationality simply because Lahore was no longer a part of India. Bose J., at p. 442 observed:- A number of enabling provisions were passed after the partition to meet certain special cases of this kind and of course, where there is specific legislation, effect must be given to it. But where, as here, there is nothing then in the absence of a specific bar we hold that an order which was good and competent when it was made and which was passed by a tribunal which was domestic at the date of its making and which could at that date, have been enforced in an Indian Court, does not lose its efficacy by reason of the partition . This no doubt is the reverse case of the present one but the principle laid down there that the effect of the judgment obtained before the constitutional changes does not change unless there is a specific provision to that. effect is applicable to this case also. Following the decision in Kishori lal's(A.I.R. 19S3- S. C. 441) case Wanchoo J., (as he then was in Laxmi Chand v. Mst. Tipuri(J. L. R. 1936 Raj. 236) held that the crucial date for determining the validity or enforceability of an order or a decree is the date when it was made. Therefore if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion, is the effect of the judgment of this Court in Kishori Lal's case(A.I.R. (1953) S.C. 441). See also E. Radhesham Roshan Lal v. Kundanlal Mohanlal (I.L.R. 1956 Punj. 434 ) where it was held that the right of the judgment-debtor to plead that the decree is a nullity, is not a procedural matter but is a vested right in the judgment debtor and it cannot be taken away by the provision of law which is not retrospective. The Nagpur High Court in Ram Kishan Jankilal v. Seth Harmukharai Lachmi Narayan(A.I.R. 1955 Nag. 103) also held that a decree by the Indore High Court prior to the constitution was of a court without jurisdiction and merely because Indore became a part of the Territory of India after the Constitution did not retrospectively clothe the court at Indore with jurisdiction in order to make the decree which was a nullity, into a valid decree. It was next argued that as a result of subsequent changes in the provisions of the Indian Code result from constitutional changes in the country, and amendments in the Indian Code the decrees of the Courts in Madhya Bharat became executable under the provisions of the Indian Code and the Gwalior Court could therefore tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of, or anything duly done or suffered under any existing law or any right, privilege, obligation or liability already acquired, accrued or incurred under any such law, or any penalty, forfeiture or punishment incurred in respect of any offence already committed against any such law . As a result of this adaptation, certain changes were made in the Indian Code. But it did not affect any act already done or any liability already incurred. Thus it left the operation of decrees previously passed unaffected. On June 5, 1950, the President promulgated the adaptation of Laws (Amendment) Order, 1950, but gave it a retrospective effect, so that it was deemed to have come into force on January 26, 1950. Under the amended Adaptation order certain changes Were made in the Indian Code which will be discussed later in this judgment. But it did not affect the operation of cl. 27 above set out, Under the adaptation of Laws (Third Amendment) Order of April 4, 1951, cl. 27 was renumbered as el. 20. The Indian Code was amended by the Code of Civil Procedure (Amendment) Act, 195 1, (II of 195 1) which came into force on April 1, 1951. By that Act, the Indian Code was extended to the whole of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed. Therefore the decree of the Gwalior Court dated November 11, 1948 continued to be enforceable as decree under the Madhya Bharat Code. As we have said before we shall assume for the purposes of this appeal that the order of transfer by the Court at Gwalior was the one passed on September 14, 1951. By then by the operation of Act II of 1951 there was one Civil Procedure Code for what was Gwalior and U. P. and indeed for the whole of India. The question then is, was the order dated September 14, 1951, transferring the decree for execution to the Civil Judge, Allahabad an effective order to which ss. 38 and 39 of the Indian Code applied and could the decree so transferred be executed by the execution Court at Allahabad ? It was contended on behalf of the appellant that it could be executed as it was a decree which fell within ss. 38 and 39 of the Indian Code, which the Gwalior Court had the power to transfer and which the Allahabad Court had under the law the authority to execute. We think it is not so. The main provisions for execution of decrees are contained in Part II Execution in the Indian Code and minor rules are contained in Order 21. Of these provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g under a different Code of Civil Procedure. The Court which made the order of transfer in September, 1951 was thus not the court which passed the decree within the meaning of s. 39. The decrees in the sections dealing with execution of decrees i.e. ss. 37 to 42 are decrees which were passed by courts governed by the Indian Civil Procedure Code because those sections relate to decrees passed in suit under the provisions of that Code. The preamble to the Indian Civil Procedure Code is whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. Under s. 1 (3) as it exists now the Code extends to the whole of India except 'certain Tribal Areas etc. Previous to the Amendment Act 11 of 1951 above referred to, s. 1 (3) of the Indian Civil Procedure Code reads as under:- S. 1 (3) This section and sections 155 to 158 extend to the whole of India except Part B States; the rest of the Code extends to the whole of India except Part B States and the Scheduled Districts . Therefore the Indian Code was not then applicable to those States which became Part B States as a result of the Constitution of India. Decree in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the Indian Independence (Adaptation of Central Acts and Ordinance) Order of 1948 promulgated on March 23, 1948, which will hereinafter be termed the Adaptation Order 1948, the relevant portion of s. 43 was as follows:- Execution of decrees passed by British Courts or in places to which this part does not extend or in foreign territory. Any decree passed by a Civil Court established in any part of British India to which the provisions relating to execution do not extend or by any Court established or continued by the authority of the Central Government or the Crown Representative in the territories of any foreign Prince or State, may, if it cannot be executed within the jurisdiction of the court by which it passed. executed in manner herein Provided within the jurisdiction of any court in British India After the Adaptation Order 1948 the provisions essentially remained the same and there was only a change in nomenclature. Instead of British India the expression ,the provinces of India and in place of territories of any Foreign Prince or State in any Indian State were substituted. After the coming into force of the Constitution Adaptation of Laws Order of January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, 1930, was not a Part B State. It became one as a consequence of the Constitution. As a matter of fact there were no Part B States, before the Constitution. Therefore a decree passed before the Constitution by a Civil Court in Madhya Bharat cannot be considered as a decree by a Civil Court in a Part B State. After the Indian Code came into force in Part B States as a result of Act 11 of 1951 under s. 43 only those decrees could be executed which were passed by Civil Courts established in Parts of India to which the provisions of the Civil Procedure Code do not extend or by Courts estab- lished or continued by the authority of the Central Government outside India, and in none of these categories does the decree passed by the Gwalior Court after the establishment of Madhya Bharat fall. It was not a decree passed by a Court in a part of India to which the Indian., Code does not extend . Those areas were set out in s. 1 (3) of the Indian Code. Therefore, under the provisions of s. 43 of the Indian Code of Civil Procedure the decree could not be executed. We shall not take s. 44 of the Code:- S.44 Execution of decrees passed by Courts of Indian States.-The Provincial Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the fact that at the time s. 43 was amended in this manner s. 44 was also amended in such a way that it was no longer possible for a State Government to issue a notification-as it could have done but for such amendment-declaring that the decrees of civil courts in an Indian State might be executed in the State as if they have been passed in the courts of that State. It is said that this took away the whatever chance a decree made by an Indian State had of being made executable in other parts of India. So, it is argued we should interpret the words the decree of a civil court in a Part B State , to include decrees made by a civil court in what later became Part B State at a time when it was an Indian State. It could 'not, it is urged, have been the intention of the legislature in making the amendment of June 3, 1950 to totally destroy this chance of executability which was possible under the law as it stood before. We do not think this is a relevant consideration. If the legislature bad intended to save this chance of executability under a possible future notification it could have easily made the necessary provision. It has to be remembered that the right of executability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal-who are residents the United Provinces, now Uttar Pradesh, not having appeared in the Gwalior Court. On August 9, 1949, the decree-holder applied to the Gwalior Court for transferring the decree to the Court of the Civil Judge, Allahabad, for execution. On April 25, 1950, the Gwalior Court passed an order for transfer of the decree for the execution to the Civil Judge, First Grade, Allahabad. It needs to be mentioned that on the date when the suit was instituted, i.e., May 15, 1947; the date on which the decree was passed, November 18, 1948; the date on which the application was made for transferring the decree, August 9, 1949; as also the date April 25, 1950, when the order for transferring the decree was made by the Gwalior Court, the Code, of Civil Procedure which is in force in India did not apply to the Gwalior Court. For, even though the Gwalior State had acceded to the Dominion of India by an Instrument of Accession by the under of the State made on August 15, 1947, arid after that the United State (Madhya Bharat) of which Gwalior became a part by a covenant signed in April 1948, acceded to the Dominion of India on July 19, 1948, by a fresh Instrument of Accession and af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion. The objection raised on the nullity of the decree could be raised only in the Allahabad Court where the decree was sought to be executed. But before that question would arise the Allahabad Court must have power to execute the decree-either oil transfer of the decree to it under s. 38 or under the provisions of s. 43 or s.44 of the Code. For reasons to be presently stated, we do not think that there could be valid transfer of the decree to the Allahabad Court or that it had any power to execute the decree under s. 43 or s.44. bat is why we think that, the question bow far the decree was a nullity does not fall for our decision in this case. With other modes of enforcement of a foreign decree this case has no concern. In solving the problems raised by the second and the third questions it is necessary first to have an idea of the scheme, of the Indian Code of Civil Procedure as regards what courts in India can execute decrees. We find in Part II of the Civil Procedure Code which relates to the execution of decrees, only three sections dealing with this matter. They are ss. 38, 43 and 44. Sections 38 provides that a decree may be executed either by the Court which passed it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter on September 14, 1951, when it was governed by the Indian Code of Civil Procedure. Therefore, it is argued, though it might be true to say that if the order of April 25, 1950, had been made under the Indian Code of Civil Procedure, what was ordered on September 14 1951; was merely a direction under O 21 r. 6 of the Civil Procedure Code for the ministerial carrying out of the order under s. 39 already made, that is, not the position here as the first order of April 25, 1950, was admittedly not under the Indian Code of Civil Procedure. The matter is by no means free from difficulty; but let us assume that this order of September 14, 1951, was the order by which the Gwalior Court then governed by the Indian Code of Civil Procedure, purported to transfer the decree to the Allahabad Court for execution. The question still remains. Was it an order within the meaning of a. 39 of the Code of Civil Procedure? The answer to this question depends on weather the Gwalior Court which was functioning on September 14, 1951, was the Court which passed the decree. Under the Indian Code of Civil Procedure the right to execute a decree arises as soon as a decree is made. Immediately on the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if they had been passed by courts, of that State. It is obvious that the decree- holder can get no benefit from s. 44 after this amendment. If however there had been a notification by the U. P. Government under s. 44 as it originally stood in respect of decrees of Civil Courts in Gwalior State the present decree would have been executable in Allahabad Courts on January 26, 1950, and that right of executability would have continued upto the present time. There was however no such notification. It is clear therefore that s. 44 is of no assistance to the decreeholder. It is equally clear that s. 43 is also no assistance to him. Section 43 as it originally stood was in these words :- 'Any decree passed by any civil court established in any part of British India to which. the provisions relating to execution do not extend, or by any court established or continued by the authority of the Central Government or the Crown Representative in the territories of any foreign prince or State outside India, may if it cannot be executed within the, jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any court in British ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary notification under s. 44. The position was safe when there was such a notification. But, even when there was no such notification there was always the probability of such a notification being made. That probability disappeared with the amendment of s. 44 on June 3, 1950. It is reasonable to think, argues the learned Counsel, that when at the same time s. 44 was thus being amended the legislature used the words: any decree passed by a civil court in a Part B State',' its intention was to include within those words decrees made by a civil court in an Indian State which later become a Part B State, In our opinion, the words actually used by the legislature do not admit of such an interpretation. If it was the legislature's intention to preserve for the decrees of the Indian States this chance of executability it could have easily made the necessary provision by using suitable phraseology either in s. 43 or s. 44. On a proper construction of the words that were actually used, viz., any decree passed by a civil court in a part B State , we see no reason to think that the legislature intended to use to mean ,,decrees made by a civil court in an Indian State, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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