TMI Blog1976 (1) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... rritory of India by the Constitution (Twelfth Amendment) Act, 1962 passed on March 27, 1962. Thereafter the decree- holder respondent applied to the Bombay High Court for transferring the decree to Goa Court for execution. This prayer was allowed by the Bombay High Court and by its order dated August 28, 1963 the decree was transferred 11-390 SCI/76 to the Goa Court for execution, In pursuance of the order of the Bombay High Court the decree-holder filed an execution suit before the Executing Court at Panjim on January 21, 1964. The Executing Court however by its order dated April 26, 1965 held that the decree transferred to it by the Bombay High Court was not executable and accordingly dismissed the execution. Thereafter the decree-holder filed a memo of appeal before the Additional Judicial Commissioner on June 1, 1965 and the appeal was admitted on June 5, 1965. On February 24, 1967 the judgment debtor/appellant filed his reply. While the appeal was pending before the Additional Judicial Commissioner the Code of Civil Procedure` was extended to Goa on June 15, 1966. Accordingly the Additional Judicial Commissioner by its order dated June 28, 1967 held that the decree was executa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Marsingh Rao Shitole v. Sri Shankar Saran and Ors.(1). In that case it appears that the appellant had instituted a suit in the Court in Gwalior State in May 1947. The respondents did not appear before the Court and the Gwalior Court passed a decree ex parte in November 1948. On September 14, 1951 the Gwalior Court transferred the decree for execution to Allahabad, as a result of which the appellant before the Supreme Court filed an . application for execution of the decree before the Allahabad Court. It was mainly contended before this Court that the decree being that of a foreign Court was a nullity and the execution application was not maintainable. In these peculiar circumstances this Court, after considering the entire law on the subject, concluded as follows: Our conclusion therefore is that the Allahabad Court had no power to execute the decree either under section 3 or under ss. 43 or 44 of the Code of Civil Procedure. Therefore, even if the decree was not a foreign decree, the decree-holder's application for execution was rightly dismissed. An analysis of Shitole's case (supra) would clearly show that the facts in that case are clearly distinguishable from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for transfer was made at a time when the Indian Code of Civil Procedure became applicable to the whole of India including the former territories of Hyderabad State. In Lalji Raja Sons v. Firm Hansraj Nathuram([1971] 3 S.C.R. 815) this Court reiterated the view taken in Shaligram's case (supra). It was also pointed out in the aforesaid case that where a party appears before the Court the decree of the Court even if it is a foreign Court is not P a nullity. Learned counsel appearing for the appellant however submitted that since the Code of Civil Procedure was not applicable to Goa the decree became inexecutable and this being a vested right could not be taken away by the application of the Code of Civil Procedure to Goa during the pendency of the appeal before the Additional Judicial Commissioner. It seems to us that the right of the judgment- debtor to pay up the decree passed against him cannot be said to be a vested right, nor can be question of executability of the decree be regarded as a substantive vested right of the judgment-debtor. A fortiorari the execution proceedings being purely a matter of procedure it is well settled that any change in law which is mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner was not competent to take notice of the change in the law. As regards the argument of the learned counsel for the appellant that the executability of the decree was a vested right which could not be taken away by the applicability of the Code of Civil Procedure to Goa during the pendency of the appeal, the decision of this Court in Lalji Raja Sons' case (supra) is a clear authority against the pro position adumbrated by the learned counsel for the appellant. In that case this Court appears to have considered this point in all its comprehensive aspects and was of the opinion that the executability of the decree could not be considered to be a vested right. In this connection this Court made the following observations: Therefore the question for decision is whether the non executability of the decree in the Morena court under the law in force in Madhya Bharat before the extension of 'the Code' can be said to be a right accrued under the repealed law. We do not think that even by straining the language of the provision it can be said that the non-executability of a decree within a particular territory can be considered as a privilege................... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The decree lay dormant only so far as no bridge was built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of the Code of Civil Procedure to Goa the decree became at once executable. In Bhagwan Shankar v. Rajaram Bapu Vithal(A.I.R. 1951 Bom. 125. 127) Chagla. C.J. as he then was, while delivering the opinion of the Full Bench of the Bombay High Court, observed as follows: Therefore, as far as this particular decree was concerned as the defendant, we are-assuming, did not submit to the jurisdiction of the Sholapur Court, quae the Akalkot Court, A the judgment of the Sholapur Court was a foreign judgment passed by a Court not of competent jurisdiction therefore the decree could not be executed in the Akalkot Court so long as the Sholapur Court continued to be a foreign Court. But once it is conceded that the decree was not a nullity it was valid binding as far as the Sholapur Court was concerned then there is no difficulty. with respect, in understanding appreciating the judgment which we have to consider in this Full Bench, because if the character of the Akalkot Court changes if the status of the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same could be executed. Counsel for the appellant objected to this argument on the ground that it was never raised at any stage of the case and being a question of fact as to whether or not there was any such provision in the Portuguese Code it should not be entertained. In these circumstances, we do not think it necessary to go into this question, particularly when the order of the Additional Judicial Commissioner can be upheld on other grounds mentioned by us. Finally it appears that this case is clearly covered by the principles contained in Art. 261 (3) of the Constitution of India which runs thus: Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law. This is a constitutional provision which enjoins that a decree shall be executable in any part of the territory of India according to law. It is obvious that in the instant case the decree was passed by the Bombay High Court after the Constitution came into force and this Article would, therefore, clearly apply to the decree passed by the Bombay High Court. The article would also apply to Goa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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