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H.M. Subbaraya Setty and Sons Vs. S.K. Palani Chetty and Sons - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberAppeal No. 105 with C.R.P. No. 474 of 1950-51
Judge
Reported inAIR1952Kant69; AIR1952Mys69
ActsCode of Civil Procedure (CPC), 1908 - Sections 2, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 44; Constitution of India - Articles 5, 32(2), 136, 136(1), 261, 261(3), 325 and 367(3); States Laws Act - Sections 6; Municipal Law; Indian Independence Act, 1947
AppellantH.M. Subbaraya Setty and Sons
RespondentS.K. Palani Chetty and Sons
Appellant AdvocateV.L. Narasimhamurthy, Adv.
Respondent AdvocateV.L. Varadaraja Iyengar, Adv. for ;Maloor Subba Rao, Adv.
Excerpt:
the case discussed the execution of an ex parte decree, passed against mysore resident before accession by the madras court - the court ruled that the decree could not be executed in mysore after accession, within the framework of articles 261(3) and 367(3) of the constitution of india. - karnataka value added tax act, 2003 [k.a. no. 30/2005] section 35 (1): [d.v.shylendra kumar,j] failure to file periodic return and the tax within the permitted time stipulated under penalty levied under section 72 (1) challenge as to - declaration sought to declare that the provision of sub-section (1) of section 72 of the act is unconstitutional, being violative of articles 14 and 19 of the constitution of india and also beyond the legislative competence of the state legislature to make laws with.....vasudevamurthy, j. 1. these two cases were heard together, the same point being involved for decision. in b. a. no. 105/50-51 the respondents filed a suit o. s. no. 37 of 1949 in the court of the subordinate judge at coimbatore against the appellant who is a merchant in arsikere in mysore state and obtained an ex parte decree on 28-3-1949. the appellant did not enter appearance and did not submit himself to the jurisdiction of that court. the respondents subsequently got the decree transferred to the court of the subordinate judge at hassan and sought execution there. the appellant-judgment-debtor objected to the execution of the decree on the ground that it was an ex parte decree passed by a foreign court when he was still a subject of the mysore state, permanently residing at arsikere......
Judgment:

Vasudevamurthy, J.

1. These two cases were heard together, the same point being involved for decision. In B. A. No. 105/50-51 the respondents filed a suit O. S. No. 37 of 1949 in the Court of the Subordinate Judge at Coimbatore against the appellant who is a merchant in Arsikere in Mysore State and obtained an ex parte decree on 28-3-1949. The Appellant did not enter appearance and did not submit himself to the Jurisdiction of that Court. The Respondents subsequently got the decree transferred to the Court of the Subordinate Judge at Hassan and sought execution there. The appellant-judgment-debtor objected to the execution of the decree on the ground that it was an ex parte decree passed by a foreign Court when he was still a subject of the Mysore State, permanently residing at Arsikere. The learned Subordinate Judge overruled that objection and directed execution to proceed. The Judgment-debtor has appealed.

2. It is contended by Mr. V. L. Narasimhamur-thy, learned Counsel for the appellant that it has been held in a series of cases of this Court as well as in, what was formerly, British India that an ex parte decree obtained against a non-resident foreigner, who has not submitted himself to the jurisdiction of that Court, is a nullity and that a decree like the present cannot be executed in Mysore. He urges that nothing has happened since for departing from that rule in the present case as the decree in question was passed by the Coimbatore Court before 26th January 1950 when the Mysore State acceded to and became a part of the Indian Union.

It is not disputed that it has all along been held by this Court in a series of cases beginning with '20 Mys CCR 214' that a decree obtained in a Court foreign to Mysore against a subject of the Mysore State, who had not submitted himself to the jurisdiction of that Court, was a nullity; under the Code of Civil Procedure as was in force in Mysore a foreign Court was defined as a Court not established or continued by the Government of Mysore; and a foreign judgment is a Judgment of the foreign Court.

In '20 Mys. CCB 214' a decree of the Court of the District Munsiff of Conjeevaram in the Madras Presidency was transferred for execution to the Munsiff's Court at Chick ballapur and Miller C. J. and Mr. Humza Husein J. held that it was competent to the latter Court to refuse execution on the ground that the decree was passed without jurisdiction and that the judgments of Courts in British India are foreign judgments within the meaning of that expression in Section 13 of the Code ol Civil Procedure.

Miller C. J. pointed out that the same question had been recently dealt with by the Full Bench of the Madras High Court in 'VEERARAGHAVA AIYAR v. J. D. MUGA SEIT', 27 Mad LJ 535, from the point of view of the British Indian Courts and had been answered in the same way by all the three learned Judges who decided the Letters Patent Appeal. He observed that not merely (sic) as a matter of policy he would be sorry to have to hold that the Mysore Courts were bound to give to the decrees of the Court in the Madras Presidency greater efficacy and finality than the Courts there are prepared to accord to those of our Courts and that he would consequently be glad to be able to accept the opinion of the Full Bench of the Madras High Court as a correct interpretation of the Code of Civil Procedure in British India and a decision applicable to the Code in force in Mysore.

In support of his judgment Mir Humza Husein J. relied upon a case decided by the Privy Council in 'GURDYAL S1NGH v. RAJAH OF FARID-KOTE', 22 Cal 222 (PC) where their Lordships of the Privy Council held that a decree passed ex parte against a non-resident foreigner was by International Law a nullity. In the latter case, which has been followed consistently both in Mysore and in British India, as it then was, it was laid down that as to land within the territory, jurisdiction always exists and may exist over movables within it and exists in question of status or succession governed by domicile. But no territorial jurisdiction can give jurisdiction which a Court of a foreign State ought to recognize over an absent foreigner owing no allegiance to the State so legislating. In a personal action to which none of the above causes of jurisdiction apply, the decree pronounced by a Court of a foreign state in 'ab-sentum', the latter not having submitted himself to that authority, is by International Law a nullity.

3. It is contended by Mr. V. L. Narasimhamur-thy, learned Counsel for the Appellant, that the accession of Mysore to the Indian Union by virtue of the Constitution, 'which came into force on 26th January 1950, cannot have the effect of converting such foreign decrees into valid and executable ones in the Mysore Courts. He urges that the proviso to S. 6 of the Part B States Laws Act No. III of 1951 expressly provides that the repeal of any law corresponding to any of the Acts extended to the State by virtue of the powers conferred on the Central Government to do so under the Constitution shall not affect the previous operation of any law so repealed or anything duly done or suffered therein or any right, privilege, obligation or liability accrued or incurred under any law so repealed, that Section 13 of the Code of Civil Procedure and the principles of International Law were the only factors governing the recognition of such foreign decrees and that the introduction into Mysore of the Indian Code of Civil Procedure Act V of 1908 cannot operate retrospectively so as to render such decrees which were made before 26th January 1950 executable in Mysore. He further urges that Article 261(3) of the Constitution on which reliance has been placed by the Court below declares that 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 cannot operate retrospectively so as to validate and render executable in Mysore those otherwise in-executable decrees.

4. Mr. V. Krishnamurthy, learned Counsel who appears for the decree-holder in the connected civil revision petition, relies on two reported cases of the Bombay High Court and a case of the Travancore High Court and contends that such decrees are executable. In 'CHUNNILAL KASTURCHAND v. DUNDAPPA DAMAPPA' : AIR1951Bom190 , Rajadhyaksha and Shah JJ. were dealing with a case of an ex parte decree passed by the Court of the Civil Judge of Belgaum against the judgment-debtors who were at the time of the passing of the decree subjects of the Jamkhandi State. In their judgment their Lordships recognise that a decree pronounced by a foreign State in a personal action in absentum, the absent party not having submitted himself to its authority, is a nullity and that even where there are reciprocity agreements under which decrees of Courts of one State are enforceable by the Courts of another State, the judgment-debtor is entitled to raise all defences arising under Section 13 as if he were sued on a foreign judgment.

They observe that the competency of a Court to entertain an action and to pass a decree must be judged by the Municipal Law of the State when that question arises in a Court within the limits of the State which has constituted the Court which entertains a suit or passes a decree and is not to be judged by applying the rules of International Law. But where a question arises as to enforcement of a decree or order passed by a Court in another territory, the rules of International Law must prevail. They were, however, of the opinion that the relevant date for ascertaining the nature of the decree was not the date of filing the execution but the date on which the Court was called upon to pass an order for execution. As at that time Jamkhandi had ceased to be foreign territory and had been included or merged in the State of Bombay, the decree could be executed as it has ceased to be a decree of a foreign Court.

This decision was approved by a Full Bench of the Bombay High Court in 'BHAGWAN SHAN-KAR v. RAJABAM' : AIR1951Bom125 , which was heard by Ghagla C. J.. Gajendragadkar and Dikshit JJ. That was a case of an ex parte decree obtained in the Court of the Subordinate Judge at Sholapur against a permanent resident of the Akalkot State. The defendant had not submitted himself to the jurisdiction of the Sholapur Court and when subsequently the decree was transferred for execution to the Court of the Nyayadish of Akalkot that State had merged into the Union of India.

5. Mr. Narasimhamurthy has urged that these are cases of merger, meaning apparently thereby that the distinction between the decrees of those Native States and of the Bombay Court had ceased to exist. It may be so though I am not very much impressed with that argument. The Bombay cases do not, in my opinion however, recognise the cardinal principle by which such foreign ex parte decrees were not being allowed to be executed by the Courts of another State. They were nullities in the latter territory according to International Law and neither could they have been sued upon nor executed in the foreign Court; see 'VEERAKA-GHAVA AIYAR v. J. D. MUGA SEIT, 27 Mad LJ 535; 'GURDYAL SINGH v. RAJAH OF FARIDKOTE', 22 Cal 222 and 'JWAPPA TAMAPPA v. JEERJI MURGEAPPA', 40 Bom 551. They were recognized as valid decrees only within the State whose Court passed them by virtue of S. 20(c) of the Code of Civil Procedure; see 'RAMBKAT v. SHANKAR BASWANT', 25 Bom 528; 'GAEKWAR BARODA STATE RLY. v. HABIB ULLLAH', 56 All 828 and 'ANNAMALAI CHETTY v. MCJRUGASA CHETTY', Mad 544 (PC).

6. It has also been held that such decrees can be executed against the property of the judgment-debtor or even against his person if he later on goes there. It has been held that a Court has no jurisdiction in a suit against a non-resident foreigner or cause of action which arose wholly out of the Indian territory 'BHAMBOO MAL v. RAM NARAIN', 9 Lah 455, though it has jurisdiction to entertain a suit against a foreigner within the limits of its jurisdiction in respect of a cause of action that has accrued abroad; see 'ISMAILJi HAJI HALIM3HAI v. ISMAIL ABDUL KADAR'. 45 Bom 1228; 'BHUJBAL v. NANHEJU', 19 All 450 and Mulla's Code of Civil Procedure, 11th Edition, page 126. Section 20 Civil P. C. would of course apply only within the area in which the particular Code is extant. Merely because there is a similar provision in a Civil P. C. of another State a decree passed by a foreign Court within whose jurisdiction a part of the cause of action has arisen cannot cease to be a nullity in the latter State. The words 'place of suing' which occur in the heading to Sections 15 to 25 refer to local venue of suits, cognizable by the then British Indian Courts and in the places to which that Code applied. They deal with matters of domestic concern and prescribe rules for the assumption of territorial jurisdiction by British Indian Courts in matters within their cognizance.

Sections 17 and 21 were the subject of consideration in 'SETRUCHARLU RAMBHADRA RAJU v. MAHARAJA OP JEYPORE', 42 Mad 813, 46 Ind App 151 (PC). In that case a suit was brought under the Code of Civil Procedure, 1908, to enforce a mortgage of property which was situate partly in a district to which that Code applied, and partly in a scheduled district under Act XXIV of 1939, and therefore subject to the special jurisdiction of the Agency Courts, and a decree, on the mortgage and for sale of the mortgaged property, was made by the Subordinate Judge, and affirmed by the High Court. It was held by the Privy Council that so far as the decree was for sale of the mortgaged property in the scheduled district the Courts had no jurisdiction to make it, Section 21 of the Code not being applicable to such a ease, and it could be set aside, notwithstanding that no objection to the jurisdiction had been taken in the Subordinate Judge's Court; that the word 'Courts' in Section 17 of the Civil P. C.. 1908, means Courts to which that Code applied, and not Courts one of winch was subject to the Civil P. C., and the other to the Agency jurisdiction and that the alteration made in the decree by striking out that part of it which ordered the sale of the mortgaged property, would not interfere with the plaintiff's right to obtain from the Agency Court an order for the sale of the property situate in its jurisdiction. Their Lordships pointed out:

'This is not an objection to the place of suing. It is an objection going to the nullity of the order on the ground of want of jurisdiction.'

In 'MANJAPPA v. RAJAGOPALACHARIAR', 45 Ind Cas 779 (Mad) a Court in the Madras Presidency had passed a decree in a suit which was really within the cognizance of a foreign Court in Mysore; the High Court of Madras while setting it aside held that the defect of jurisdiction could not be cured by Section 21 and that that section could not apply so as to usurp the jurisdiction of a foreign Court; see also Mulla's Code of Civil Procedure, 11th Edn., Page 129.

7. The other grounds on which 'CHUNNILAL KASTURCHAND v. DUKDAPPA DAMAPPA' : AIR1951Bom190 proceeds are that the Belgaum Court was not a foreign Court when the execution was taken out as by an Act of state Jamkhandi had become a part of the Indian Territory and that as a result of such an Act of State the judgment-debtor had lost his former status as a subject of Jamkhandi State and having become a national of the Indian Union and citizen oi the Dominion of India, a decree of the Court of the Indian Union was fully binding on him on the concerned date viz., when execution was to be ordered. In the latter Pull Bench case also Chagla C. J. bases his decision on the ground that prejudice, if any, has been caused by an Act of State which altered the status of Akalkot and of the defendant and made the Akalkot Court a Municipal Court and the defendant a citizen whereas the Akalkot Court before was a foreign Court and the defendant a foreigner. With great respect to the learned Judges who decided the two Bombay cases I think the way in which this question has to be approached is to see whether such decrees, which when passed were according to International law nullities in the foreign State where they were to be enforced, have, by reason of any subsequent change in the status either of the Native State or of its former subject, become executable.

8. Mr. Krishnamurthi has argued that His Highness the Maharaja of Mysore was a Sovereign in his own State immediately after the Indian Independence Act was passed and that thereafter it was open to him to declare or enter into any arrangement by which decrees made outside the State could have full potency in his State whether they were ex parte or not and that Art. 261(3) of the Constitution really represents such an arrangement. The coming in of the new Constitution is not in the nature of a conquest of the Mysore State by the Indian Union. It is really in the nature of a mutual agreement and Article 261(3) of the Constitution now declares that final judgments or orders passed by Civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law. It may have been open to the Sovereign as well as the Indian Union to have agreed for retrospective effect being given to Article 261. Unless it was so agreed or unless by express or necessary implication such a meaning can be gathered it is of course obvious that no such retrospective operation can be given to the Article; and by merely saying that the accession and Article 261 of the Constitution are Acts of State, the previous position of these ex parte decrees before 25th January 1950 cannot be said to be altered. The constitutional position of His Highness the Maharaja has been the subject of decision by the Privy Council recently in 'RAMALINGAM v. ABDUL WAHID', AIR 1950 PC 64, Where they have held that on the passing of the Indian Independence Act, 1947, just before the accession, the Maharaja alone had Sovereign powers and it was for him to make such laws as he thought fit for the administration of justice in his territory.

9. In 'JANARDHAN REDDY v. STATE OF HYDERABAD' : [1951]2SCR344 it has been laid down by the Supreme Court, while refusing the issue of 'writ' under Article 32(2) of the Constitution, that the provisions of the Constitution which were invoked before them had no retrospective effect. In that case they had to consider also petitions for special leave to appeal to the Supreme Court from orders passed by Tribunals before the date of coining into force of the Constitution. The wording of Article 136(1) which deals with the granting of special leave and relevant to the present discussion are similar to those in Article 261(3). Their Lordships held that they had no jurisdiction to issue 'writs' or grant special leave in such cases. Article 261(3) also refers to final Judgments or orders delivered or passed by Civil Courts in any part of the territory of India and in my opinion, can relate only to those decrees or orders passed after the Constitution. To hold otherwise would render judgments, decrees and orders passed by any of the former numerous Indian State Courts which were before their accession governed by different laws both substantial and procedural, enforceable in every other State in the Union; and without some express words to that effect I would hesitate to accept the construction suggested by the Respondents' Counsel that Article 261(3) would make all of them apply retrospectively.

In this connection I would like to refer to a case reported in 'CHAND MOLL v. PURUSHOTHAM DOSS' AIR 1926 Mad 584, which deals with a suit brought on the original side of the Madras High Court founded upon what was described as a decree of the Court of the Judicial Commissioner in the State of His Exalted Highness the Nizam of Hyderabad, It had been passed for a huge sum of money against a resident of the Hyderabad State irrespective of the Law of Limitation by virtue of a firman' issued by the Nizam. Coutts Trotter, C. J. observed as follows:

'I have not before me any information as to how the Courts of ordinary original civil jurisdiction are constituted nor under what authority the ordinary law of Limitation is in force as it undoubtedly appears to be in the ordinary Civil Courts of the State......... . It appears to me to be wrong to subject this defendant to any process before he has had an opportunity of urging his contentions against that judgment.'

These remarks may be rather pertinent in such cases.

10. Moreover the words 'territory of India' occurring in Article 261(3) have been defined in Article 1 as comprising the territory of the A, B and C States and India as a Union of those States. Mysore as well as Madras became States within the meaning of the Constitution and came into the territory of India only by virtue of the Constitution. Decrees passed in the Madras Presidency or Mysore State Courts before they became parte of the territory of India cannot be said with retrospective effect to be those of Civil Courts in the territory of India. See 'KESHAVAN v. STATE OF BOMBAY' : 1951CriLJ680 .

11. 'BHAGWAN SHANKAR v. RAJARAM' : AIR1951Bom125 has been followed with approval by a single Judge of the Travancore High Court in 'MOOSAKUTY HAJEF. v. PYLOTU JOSEPH', 1951 Ker LT 547. That learned Judge was of the opinion :

'The circumstance that whereas in the said decision of the Bombay High Court it was a case of merger of a state with another, whereas here it is a case of two States which were originally independent becoming dependent, makes no difference for the application of the principle.'

The consequence of the Constitution of India was, according to him, to enlarge the territory of India by including within the territory of the State of Travancore and the point of time to be regarded in considering the question of executability was not the time at which the decree was passed but the time at which it was sought to be executed; that obstacle, to the execution was removed by the time execution of the decree was sought.

Then he goes on to observe that the case before him was & simple one as there was no contention raised on behalf of the respondent that the decree was one that ought not to have been passed, for instance that the claim was untrue or that it had been discharged or that the claim was barred by limitation -- considerations which with respect do not appear to be ones which an executing Court can examine. But the learned Judge in the later portion of his judgment felt that it may be in certain cases, if liberty to defend the action is not granted to the defendant, serious hardship will be caused about which he may legitimately complain on the ground that he was not at fault in not having entered appearance and defend action in the form in which it was present while recognizing that there might have been justification for the judgment-debtor for not having appeared and contested the claim when the suit was filed in the foreign Court.

This last observation of the learned Judge to my mind shows the difficulty ho felt in holding that the earlier decrees which were nullities so far as Travancore was concerned could be executed 'there automatically after the accession. I think we would be doing no injustice by holding that those decrees which have been passed before the accession, which everyone knew could not be executed in a foreign State, cannot become valid by the subsequent event, while to hold to the contrary would work a great injustice on the litigants though of course if the law was so or if the articles of the Constitution were quite clearly to that effect I would have had no hesitation in upholding the same.

12. Mr. Krishnamurthi has also contended that the matter of execution relates only to procedural law and no litigant can be said to have a vested right so as to entitle him to raise an objection like the present. He argues that it was not a right or privilege which has accrued in his favour under the Code of Civil Procedure as in force in Mysore which can be said to be saved by Section 6(b) of the Part E State Laws Act of 1951. It cannot be contended that there can be no vested rights at all under procedural law. The right to appeal granted under the Code of Civil Procedure has always been held to be a vested right which once it has accrued cannot be taken away. Even under the Limitation Act which is said to be a procedural law, certain accrued rights are enforced and cannot be taken away by any subsequent change in the law unless the legislature has made it clear that the same is to have retrospective effect.

13. It is argued that 'he right or privilege claimed in the present case by the judgment-debtor has not been acquired under any repealed law. Even that is not correct as the decisions of this Court conferring immunity on judgment-debtors like the present was based on the definition of Section 13 of the Mysore Code of Civil Procedure and the definition of 'foreign Court' in Section 2 thereof.

14. In the result R. A. No. 105/50-51 must be [allowed and the execution application but of which jit arises must be dismissed; and I would order accordingly. The parties will bear their own costs.

15. In the view I have taken in R. A. No. 105 of 50-51, CRP 474 of 50-51 is allowed but without costs.

Venkataramaiya, J.

16. I agree. As the case involves construction of the provisions of the Constitution of India and the decision may affect similar cases now pending or which may arise hereafter, I deem it necessary to state my reasons for the conclusion arrived at. The question for consideration is whether execution of a decree for payment of money passed ex parte before the Mysore State acceded to the Indian Union by a Court situated outside the State of Mysore against a resident in Mysore who did not submit himself to the jurisdiction of that Court can be resisted when execution is applied for in a Court within this State. The decree was passed in the Sub Court, Coimbatore, (Madras State) on 28-3-1949 and transferred for execution to the Sub Court at Hassan (Mysore State). The application for execution was filed in the Court at Hassan on 19-3-1950. The judgment-debtor objected to the execution on the ground that the decree was a foreign decree and inexecutable as it was passed against a non-resident foreigner who did not submit himself to the Jurisdiction of the outside Court and that the cause of action for the suit did not arise within the jurisdiction of the Court which passed the decree. The latter contention was disputed by the Decree-holder and the former was alleged to be untenable. The learned Judge without expressing his opinion as to where the cause of action for the suit arose directed execution to proceed in a brief order referring to Articles 261 and 325 of the Constitution and '25 Mys CCR 269', as supporting the decree-holder. The correctness of this view is challenged by the judgment-debtor.

17. The case in '25 Mys. CCR 269' does not help the decree-holder as is clear from the statement of Miller C. J. at page 289:

'I do not think we are called upon to state on this reference an opinion as to the circumstances which may entitle a Mysore Court to refuse execution of a foreign decree. It may certainly refuse if the Mysore Law does not allow execution, but it cannot refuse merely because the decree is a foreign decree.'

and Chandrasekhara Aiyar, J. at page 292:

'The appellant though residing in the Kolar Gold Fields for the purpose of his business is a native of Ambur which is within the civil jurisdiction of the Vellore Munsiff's Court and is admittedly a British Indian subject. The case of such a person is of course quite outside the scope of the decisions which lay down that an ex parte decree passed by a foreign Court against an absent person who had not submitted himself to its jurisdiction is a nullity and will not be executed by a local Court. These decisions proceed mostly on considerations of international law which are inapplicable to the case of a defendant who, though absent at the time of the decree, was subject to the jurisdiction of the foreign Court, or had voluntarily submitted himself to it.'

In a series of cases of which '20 Mys CCR 214', '22 Mys OCR 188', '23 Mys CCR 299', '29 Mys CCR 143', and '34 Mys CCR 205', may be mentioned -- this Court has held that the judgment of a foreign1 Court cannot be enforced in Mysore by making it the basis of a suit and that a decree of a foreign Court cannot also be executed in Mysore when the defendant at the time of the institution of the suit was not a subject of or resident in the country in which the judgment was obtained and did not submit himself to its Jurisdiction and that the judgment of the foreign Court is a nullity.

18. It is conceded that the order of the lower Court allowing execution of the decree is opposed to the decisions of this Court but it is contended that the provisions of the Constitution of India fully justify it. The decree in the present case is sought to be distinguished from those in the cases referred to by the fact that though the Court which passed the decree and the Court in which execution is applied for are situated in different States, both States are now within the territory of India (Vide Article 1), the parties are both citizens of India (Vide Article 5), neither is a 'Foreign State' (Vide Article 367(3) ) and the meaning attached to 'foreign decree' in the old cases is changed so as to render the term inapplicable to the decree in question. Emphasis is laid on Article 261(3) which states:

'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.'

to show that the grounds on which execution was refused in the cases decided prior to the Constitution cannot now prevail.

There is no doubt that in view of these constitutional provisions the decree-holder would have had no difficulty to claim and enforce execution notwithstanding the previous decisions of this Court if the decree was of a date subsequent to the Constitution. Since it is of an anterior date, the decree-holder must, in order to succeed, satisfy the Court that the provisions of the Constitution can be availed of either because of the words employed in the Articles or because of the date on which execution is sought being material for determination of the question of applicability. In 'KESHAVAR v. STATE OP BOMBAY' : 1951CriLJ680 it is observed:

'Every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution ..........

It has no retrospective effect and if therefore an act was done before the commencement of the Constitution in contravention of the provisions of any law which after the Constitution becomes void with respect to the exercise of any of the fundamental rights, the Inconsistent law is not wiped out so far as the past act is concerned.'

Dealing with an application under Article 136 for special leave to appeal to Supreme Court from a judgment ol the Hyderabad High Court Kama, C. J., expressed:

'... .as the judgments were pronounced and sentences were passed in all these matters before us by the High Court of Hyderabad which was in the territory of H. E. H. the Nizam and which territory was not the territory of India before 26-1-1950 and as those judgments were passed before the Constitution came into force they do not fall within the class of judgments against which special leave to appeal to the Supreme Court can be asked for under Article 136.'

The words in Article 261(3) 'Judgments or orders delivered or passed by the civil Courts in any part of the territory of India are similar to 'judgment, decree or order ...... passed or made by any Court or tribunal in the territory of India'' in Article 136. After referring to the definition of the 'Territory of India' in Article 1 and the contention that meaning Article 138 as prospective amounts to inserting the word 'thereafter' in the article for which there is no warrant, the learned Chief Justice remarks that a right of appeal should be conferred expressly or impliedly and observes :

'Indeed the words 'Territory of India' lead to a contrary conclusion -- under the words used in Article 136 the Courts which passed Judgments or sentences must be Courts within the territory of India. The territory of the Government of His Exalted Highness the Nizam in December 1949 cannot be considered as judgment and sentence passed by a Court within the territory of India. On that short ground alone the petitioner's contention must fall'

These words can well be applied to this case and if the date of the decree is the criterion to de-j determine executability, it must be held to be in-executable.

19. It was argued that the crucial point of time for deciding the question of executability was not the date of the decree but the date on which the application for execution was made. This implies that the decree which, as remarked by Earl Sel-borne, in 'GURDYAL SINGH v. RAJAH OP FARIDKOTE', 22 Cal 222 (PC) was 'an absolute nullity' till the date of the Constitution assumed unquestionable validity from that date and liabilities which were treated as non-existent suddenly sprang up. In support of the contention that such was the effect notwithstanding the hardship which may be entailed on litigants who under the shelter of the law which prevailed formerly did not deem it necessary to contest the claims set up in Courts outside the States in which they lived; 'BHAGWAN SHANKAR v. RAJARAM' : AIR1951Bom125 (FBI; 'CHDNNILAL KASTUR-CHAND v. DUNDAPPA DAMAPPA', : AIR1951Bom190 'and 'MOOSAKUTTY HAJEE v. PYLOTU JOSEPH', 1951 Ker L T 547 were cited. According to these cases executability of the decree depends on the dates when execution is applied for and if that date is after 25-1-1950, the decree is enforceable under the Constitutional provisions. The last case is that of a single Judge who relies on the two decisions of the Bombay High Court to hold that a decree of a Court in Madras Slate passed before the date of the Constitution against a resident in Cochin who did not submit himself to its jurisdiction is now executable in Cochin Court as the decree has ceased to be a foreign decree.

The effect of the Bombay decisions is that a decree of a Court either in the former presidency of Bombay or in a State which has since merged in it, may be now executed in either Court although it was not so executable up to the date of the Constitution. It is to be noticed that in these cases, as a result of merger, the Court which passed the decrees and the Court in which execution is sought are governed by the same law and subject to the jurisdiction of the High Court in the same State. The question was first decided by a Division Bench in favour of executability and was subjected to consideration by a Full Bench when it arose subsequently in another case. The learned Chief Justice while agreeing with the view of the Division Bench stated that the decree of a foreign Court cannot be said to have been an absolute nullity when it was passed for the reason that under Section 20 of the Civil Procedure Code accrual of the cause of action wholly or in part within its jurisdiction was enough to make it competent to decide the suit and 'the decree is a nullity in a limited sense' to the extent it could not be enforced in a Court outside the State. This limitation with respect to execution is considered to have been removed and the decree freed from being 'Foreign' by the Constitution so as to render it executable as that of a Court in the 'territory of India'.

As regards the vested rights under Section 13 of the Code of Civil Procedure to resist execution it was observed that these were of no avail when the prejudice is caused by Act of State and change of status and not repeal of legislation.

With great respect to the learned Chief Justice and the other learned Judges in the three cases, I find it difficult to adopt the view expressed by them. The reason for refusing execution is not based on the consideration of the Court passing the decree having or not having jurisdiction to decide the case under law governing it, but on principles governing decisions of 'Foreign Court.' The decree is of course valid so far as the Court passing it and the State in which that Court is situated are concerned but its effectiveness does not extend to a 'Foreign Court.'

The Privy Council decision referred to by the learned Chief Justice leaves no room for doubt about the decree of the foreign Court being an absolute nullity in spite of that Court's jurisdiction to pass it as can be gathered from the following passage:

'In a personal action.......... a decree pronounced in absentum by a foreign Court to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it and it must be regarded as a mere nullity by the Courts of every nation except (when authorised by special local legislation) in the country of the former by which it was pronounced.'

That the words enclosed in brackets do not invest the decree with any validity in a Court of a foreign State is apparent from the succeeding paragraph:

'These are 'doctrines laid down by the leading authorities on international law...... and no exception is made to them in favour of the exercise of jurisdiction against the defendant not otherwise subject to it by the Courts of the country in which the cause of action arose or (in cases of contracts) by the Courts of locus solutions. In these cases as well as all Ors. where the action is personal the Courts of the country in which a defendant resides have power and they ought to be resorted to, to do justice.'

In many of the important decisions relating to executability of foreign decrees this case is cited as an authority to hold that it is an 'Absolute nullity' and as such inexecutable. I do not think that the 'nullity' is limited or lessened on account of the Court in the foreign State being competent to pass it under the law governing it.

20. There is no reference in the decisions relied upon to Article 261 of the Constitution of India which expressly provides for the execution of decrees passed in Courts within the Union and it is not alleged that any other Article has a direct bearing on this.

21. Decrees of dates prior to the Constitution passed by a Court in any State, as it then stood are not declared by the Articles to be executable. Such decrees are not and cannot be deemed to be decrees of civil Courts in any part of the 'Territory of India' as required by the Article and explained by the Supreme Court in the case already mentioned. Apparently the decision of the Supreme Court was not brought to the notice of the Full Bench as it is not referred to. There are no words concerning status of parties or citizenship in the article. What is now disputed is not the binding character of the Constitutional provisions or the change in regard to rights of citizenship but only the effect of these. Prom the mere fact that there is a change, it does not ipso facto follow that it varies the nature and effect of prior proceedings.

In 'SALAMAN v. SECY. OF STATE FOR INDIA', (1908) 1 K B 613 at page 639, Fletcher Moulton, C. J., defining 'Act of State' as an 'exercise of sovereign power, which cannot be challenged, controlled or interfered within Municipal Courts' states:

'.... Municipal Courts may have to consider the results of Acts of State, i.e., their effects on the rights of individuals and even of the Government itself.'

As has been held in regard to a judgment of the High Court of Hyderabad passed prior to the Constitution, decrees too of that period, in any Court of other States cannot be regarded as those of Courts within 'Territory of India'. A different rule cannot apply also to the alteration of status (a term of no precise connotation, used in a considerable variety of senses (Salmond's jurisprudence page 327) resulting from the Constitution and it cannot relate back to the time of the decree.

22. It seems to me that the status to be taken into account for deciding executability is that at the time of decree and not at the time of execution. In 'RAMALINGA IYEB v. SWAMINATHA AYYAR', AIR 1941 Mad 688, discussing the point of time at which nationality of defendant is material for the purpose of execution, Leach, C. J., remarked:

'If the respondent was a Cochin subject at the date of the passing of the decree any declaration renouncing his Cochin nationality after the passing of the decree would leave the position unchanged.'

In Dicey's Conflict of Laws it is stated as follows:

'In an action in personam in respect o any cause of action the Courts of foreign country have jurisdiction in the following cases:

First Case: When at the commencement of the action the defendant was resident or present in such country.

Second Case: Where the defendant is at the time of the 'judgment in the action' subject or citizen of such country', (the underlining (here in single quotation) is mine.)

Third Case:......'

23. In my opinion decrees which were inexecutable cutable as those of a Court in a foreign State according to the law in force up to the date of the Constitution have not ceased to be so on account of the changes introduced by the Constitution with respect to status or in the definition of Foreign State or of territory of India and that the date of decree, not the date of application for execution is material to decide the question of, executability. I would, therefore, allow the appeal and direct parties to bear their own costs.

24. For the same reasons, C. R. P. 474/50-51, which is also filed by the judgment-debtor is allowed but without costs.

25. Appeal and Revision allowed.


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