A.P. Srivastava, J.
1. This special appeal has been preferred against the judgment of Brij Mohan Lall J., by which he dismissed the execution application of the appellant on the ground that the decree sought to be executed was a nullity and could not on that account be executed.
2. The facts which are material for the purpose of the appeal are practically not in dispute. On 15-5-1947, the appellant filed against the respondents a suit in the court of the District Judge of what was then the Native State of Gwalior, for the recovery of a sum of Rs. 6,92,236/15/- from the assets of late Munshi Ishwar Saran of Allahabad in the respondents' hands.
The suit was based on the allegation that late Munshi Ishwar Saran had taken certain amounts from the appellant as an agent for which he was bound to render accounts but had died without doing the same. Summonses were served on the respondents on 18-11-1948, but none of them appeared to contest the suit. An ex parts decree was thereupon passed by the Additional District Judge of Gwalior against them on the same date, viz., 18-11-1948.
The decree was first put in execution in the year 1949 in the Court which had passed it and at the decree-holder's request, a precept was issued to the District Judge of Gorakhpur for the attachment of certain properties situate in that district. The respondents put in appearance in the Gorakhpur court and raised objections. The precept was, however withdrawn by the Additional District Judge of Gwalior by his order dated 4-12-1952 and the execution case which had been started in the Gorakhpur court on the receipt of precept was ordered to be struck off on 14-2-1953.
In the mean time on 9-8-1949, the decree-holder made an application to the Additional District Judge of Gwalior praying that the decree be transferred for execution to the court of the Civil Judge at Allahabad where the properties of the judgment-debtors were situate. This application was allowed on 25-4-1950 and the decree was ordered to be transferred to the court of Civil Judge, Allahabad as requested.
The actual transfer of the decree was, however, made on 14-9-1951 and the papers required by Order 21, Rule 6 of the Code of Civil Procedure were received by the Allahabad Court on 18-9-1951. On 16-10-1951, the decree-holder filed an application for execution in Allahabad Court praying that certain properties of the judgment-debtors mentioned in the application be attached and sold for the realisation of the amount due to the decree-holder which on that date stood at Rs. 8,98,257/7/-.
On the 8th of February 1952, an objection purporting to be one under Section 47 of the Code of Civil Procedure was filed in the execution case on behalf of the judgment-debtors. The main plea raised in this objection was that the decree sought to be executed was not capable of execution because it had been passed by a court which was not a court of competent jurisdiction.
It was a foreign court which never had any jurisdiction over the defendants of the suit and the latter had not at any time submitted to its jurisdiction. The decree was, therefore, a nullity. It was also pleaded that the decree had been obtained by practising fraud on the court, the material facts and circumstances having been suppressed and that in any case the claim was barred by time on the date on which it had been filed.
It was pleaded further that there was no provision under which the decree could be executed at Allahabad. The judgment-debtors also contended that the properties sought to be attached and sold were not the assets of Munshi Ishwarsaran and were on that account not liable to be proceeded against in execution of the decree. In respect of the application for execution, it was contended that it was not in accordance with law and was not maintainable.
3. With the consent of the parties, the execution case was transferred to the High Court under Section 24 of the Civil Procedure Code. After hearing preliminary arguments, Mr. Justice Brij Mohan Lall framed the following issues for determination :
(1) Whether the court of the District Judge Gwalior was a foreign court
(a) on the date of the institution of the suit, or
(b) on the date of the decree.
(2) If the aforesaid court is held to be a foreign court, did the defendants submit to the jurisdiction of that court? If not, is the decree binding on them?
(3) Whether the decree passed by the District Judge of Gwalior on 18-11-1948 is executable in Uttar Pradesh.
(4) Whether the property sought to be attached formed part of the assets of the late Munshi Ishwar Saran.
4. The learned Judge noted that he did not consider it necessary to frame any issue on the question whether fraud was practiced in the trial court by the decree-holder by reason of suppressing some evidence or producing false evidence. Nor did he wish to frame any issue on the question whether the claim was barred by limitation when brought.
He thought that if the decree was found to be executable and binding on the judgment-debtors, it would not be open to the executing court to enter into those questions.
5. The learned Judge did not record any finding on issue No. 4 as no evidence in respect of it was led before him by the parties.
6. He found that so far as the defendants were concerned, the Gwalior Court was a foreign court, not only on the date of the institution or the suit but also on the date of the passing of the decree. The defendants had never submitted themselves to the jurisdiction of the court. The decree was, therefore, an ex parte decree passed against non-resident foreigners and was on that account a nullity.
Subsequent political changes or alterations in the law could not make it valid or enforceable. The decree was, therefore, not executable. As a result of these findings, he allowed the judgment-debtors' objection with costs and dismissed the appellant's application for execution.
7. The decree-holder has come in appeal. He does not challenge the finding of the learned single Judge that the defendants had never submitted to the jurisdiction of the Gwalior Court. His learned counsel also made no attempt to assail before us the principle of Private International Law laid down by their Lordships of the Privy Council in the case of Gurdayal Singh v. Raja of Faridkot, 1894 AC 670 (A), on which practically speaking the decision under appeal is based. Their Lordships had laid down in that case:
'AH jurisdiction is properly territorial, and 'extra territorium jus dicenti, impune non paretur'. Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory, while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country.
It exists always as to land within the territory, and it may be exercised over movables within the territory; and, in questions of status or succession governed by domicile, it may exist as to persons domiciled, or who when living were domiciled, within the territory.
As between different provinces under one sovereignty (e. g., under the Roman Empire) the legislation of the sovereign may distribute and regulate jurisdiction; but no territorial legislation can give jurisdiction which any Foreign Court ought to recognize against foreigners who owe no allegiance or obedience to the Power which so legislates.
In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem 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 authorized by special local legislation) in the country of the forum by which it was pronounced.'
8. What the learned counsel urged was that his case fell outside the application of the dictum in Gurdayal Singh's case (A), as:
1. The State of Gwalior by whose court the decree in question was passed was not a foreign State in the sense in which the term has been used in Gurdyal Singh's case (A), A foreign State as contemplated in that case should be a sovereign and independent State e. g. France or Spain vis-a-vis Britain.
The Gwalior State was never an independent State and had all along been under the suzerainty or paramountcy of the British Crown. It had nominally become independent for a short while after the passing of the Indian Independence Act of 1947 but immediately afterwards the ruler of the State had acceded to the Indian Dominion for certain purposes. Thereafter, the State merged itself along with a number of other States into a bigger unit, viz., United States of Gwalior, Indore and Malwa, otherwise known as Madhya Bharat. The Raj Pra-mukh of this bigger unit also executed an instrument of accession in favour of the Indian Dominion. Thereafter, the Constitution came into force and the territory of what was originally the State of Gwalior became a part of the territory of India. Gwalior was thus never a foreign State in the strict sense of the term.
In any case, even if it had that character previously, it had lost it before the date on which the decree in question was passed or was being sought to be executed. The decree should not, therefore, have been held to be inexecutable on the ground that it was a decree of a foreign State.
2. The learned single Judge was not justified in his view that the decree when it was passed was an absolute nullity. Even in Gurdayal Singh's case (A), it had been recognised that if there was any special law in any country permitting it to pass a decree against a non-resident foreigner, the decree so passed would be a valid decree at least for that country.
How could a decree which was an absolute nullity be valid in the country in which it was passed. So far as Gwalior State was concerned, Section 18 of the Civil Procedure Code which was in force in that State in November 1947, particularly the third explanation and the illustration appended to the section constituted a special provision of law permitting the courts in that State to pass a decree against a non-resident foreigner provided the cause of action for the suit had arisen within the territorial limits of the State.
The cause of action for the suit filed against the respondents had, according to the plaintiff (now appellant), arisen in the State of Gwalior. The decree in question was, therefore, a valid decree at least so far as the Gwalior territory was concerned. When the State merged itself into a bigger unit known as United States of Gwalior, Indore and Malwa otherwise known as Madhya Bharat, the decree was to be considered a decree passed by a court of the new State of Madhya Bharat.
Had there been a notification as contemplated by the old Section 44 of the Civil Procedure Code, the decree of the erstwhile Gwalior or Madhya Bharat State could have been executed in the State of Uttar Pradesh. How could a void decree be made executable only by a notification. The correct position in law, therefore, was that the decree was not an absolute nullity. It was a good decree so far as the territory of that State was concerned in which it had been passed.
There was only an impediment to its being executed at Allahabad because Allahabad was not a part of 'he territory of which Gwalior was a part. This impediment could have been removed by a notification to be issued under Section 44, Civil Procedure Code. It got automatically removed when on the coming into force of the Constitution both Allahabad and Gwalior became parts of the territory of India.
The learned single Judge was, therefore, not justified in taking the view that the decree was not executable at Allahabad on the date on which it was sought to be executed.
3. As an executing court, the learned single Judge was bound to take into account changes in legislation that had been made since the decree in question was passed. The material date was the date on which the decree was sought to be executed and not the date on which it was passed. By the time the execution application was filed in the court of the Civil Judge at Allahabad, Sub-article (3) of Article 261 of the Constitution had come into force. Important changes had also been effected by the Indian Independence Act, Adaptation of Central Acts and Ordinances Order of 1947, Adaptation of Laws Order 1950, Adaptation of Laws (Amendment) Order 1950, and the Civil Procedure Code Amendment Act (II of 1951). The decree could, therefore, be executed at Allahabad in 1951 oven if it could not have been executed there earlier.
9. The contention that the principle laid down in Gurdyal Singh's case (A), will be applicable only if the State in question is an absolutely independent State is unacceptable. The State of Faridkot with whose decree their Lordships of the Privy Council were in that case concerned, was itself not an absolutely independent State.
Their Lordships had before themselves the facts about the status of the State that had been mentioned by the Chief Court in the judgment which was under appeal. Those facts were:
Faridkot was a protected dependent State. The sanad of 18G3, which had been granted to its ruler by the British Government, confirmed to him and his male heirs all the rights and authority, civil and criminal, formerly exercised by the Chief. The protectorate, on the one side, and this dependence, on the other, did not, however, prevent the State from having all such attributes of independent States as were compatible with the conditions of protection and dependence.
It could prescribe its own rules of civil jurisdiction and procedure adopting, as the Raja had done, the Civil Procedure, in many of its provisions, that had been enacted for British India (vide summary of judgment as given in I.L.R. 22 Cal 222(A) at pages 227 and 228).
10. On these facts the learned Judges referred to Faridkot as 'a native State, the Raja of which has been recognised by Her Majesty as having an independent civil, criminal and fiscal jurisdiction' and laid down :
'The judgments of its Courts are and ought to be, regarded in Her Majesty's Courts of British India as foreign judgments.'
From this it follows that in order to be a foreign State for the purpose of the principle which their Lordships were enunciating, absolute independence was not necessary. The only thing that was needed was that the State should have an independent civil, criminal and fiscal jurisdiction. If it had that it could be considered to be foreign State notwith-standing the fact that it was under protection, suzerainty or paramountcy of another superior power. That Gwalior State had such jurisdiction is not disputed.
It is also conceded that the ruler of the State enjoyed the full measure of internal and domestic sovereignty subject of course to the protection of the British Crown. The position of Gwalior was thus in no way different from Faridkote and if Faridkote could be held to be a foreign State visa-vis Lahore, there is no reason why Cwalior cannot be held to be a foreign State vis-a-vis Allahabad.
11. The fact that Gwalior and British India of which Allahabad was a part were under the same sovereign cannot be considered to be material for two States under the same sovereign can also be foreign to each other for purposes of international law. An instance o this can be found in Scotland and England.
Though they formed part of the same United Kingdom and were governed by a common sovereign, yet till the passing of the Judgment Extension Act of 1868, decrees passed in England were treated as foreign judgment in Scotland and vice versa. Even after passing of the Judgment Extension Act of 1869 the position remained the same so far as the judgment of the inferior courts were concerned because that Act applied only to judgments obtained from superior courts. The Inferior Court Judgment Extension Act, 1882 had then to be passed.
12. In Kassim Mamoojee v. Isuf Mahomed Sullaiman, ILK 29 Cal 509 (B), a judgment obtained in absentem imposing a personal liability upon a native of British India from a court in Mauritius, a British colony was treated as a nullity on the ground that it was a judgment against a non-resident foreigner. Earlier in Moazzim Hossein Khan v. Raphael Robinson, ILR 28 Cal 641 (C), a judgment obtained in England from the Queen's Bench Division against a British subject who was not then resident in England but was residing in British India was considered to be a foreign judgment for purposes of the Civil Procedure Code and a suit on its basis was held to be maintainable at Calcutta.
It may, however, be noted that in that case the foreign judgment was not allowed to be treated as nullity because it was held that by special legislation the English Court had in the particular class of cases to which that case belonged been given jurisdiction to pass decrees even against non-resident foreigners. In Atham Sahib v. Daoud Sahib, ILR 32 Mad 489 (D), a judgment of a court in Ceylon, which was also a British colony at that time, was held to be a foreign judgment for British Indian Courts.
13. In America, the position in respect of the judgments of States which have federated themselves into a union of the United States of America also appears to be the same. 'In the absence of some constitutional or statutory provision changing its status, a judgment of a sister State would stand on the same ground as a judgment of a foreign State' (Vide Corpus Juris Vol. XXXIV, 1924 Edn. Page 1125, para 1602).
14. It cannot, therefore, be seriously contended that Cwalior was not a foreign State vis-a-vis Allahabad on the date on which the appellant filed his suit against the respondent, viz., the 15th of May, 1947.
14a. After the suit was filed the important political events which happened were these:
(1) The Indian Independence Act came into force on 15-8-1947.
(2) The Standstill Agreement and the first Instrument of Accession were executed by the ruler of Gwalior sometime in August, 1947.
(3) A covenant was entered into by the rulers of Gwalior, Indore and certain other States in Central India for the formation of the United States of Indore, Gwalior and Malwa (Madhya Bharat). This vvas done sometime in April 1948 and the State of Madhya Bharat came into existence in June 1948.
(4) The Rajpramukh of Madhya Bharat executed an Instrument of Accession on 9-7-1918 and it was accepted by the Governor General of India on 13-9-1948.
(5) The Indian Constitution came into effect on 26-1-1950 and the State of Madhya Bharat became a part of the territory of India.
15. What has to be seen is whether on account of any of these political changes Gwalior lost its character as a foreign State so far as the respondents were concerned,
16. On the coming into force of the Indian Independence Act 1947 by Section 7 of the Act the suzerainty of His Majesty over the Indian States lapsed and with it lapsed all treaties and agreements in force on the date of the passing of the Act between His Majesty and the rulers of the Indian States. The result was that the State of Gwalior became a completely independent State.
Even that protection of the British Crown which, according to the learned counsel for the appellant, prevented the State from being considered to be a foreign State came to an end. Instead of being adversely affected the foreign character of Gwalior State became all the more confirmed.
17. It is conceded that the Stand-still Agreement, the form of which is given as appendix Ix to the White paper on Indian States made no material change in respect of the matter now under consideration. It expressly provided that 'nothing in this agreement includes the exercise of any paramountry function.' The first Instrument of Accession which the ruler of the Gwalior State executed was in the form given in appendix VIII to the White Paper on Indian States. Accession by that instrument was in respect of three matters only: defence, external affairs and communication.
In respect of these three: matters as detailed in the schedule of the instrument, the Dominion Legislature was permitted to make laws for the State. Clauses 7 and 8 of the Instrument of Accession however, expressly provided:
Clause 7: Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to Fetter my discretion to enter into arrangements with the Government of India under any such future constitution.'
Clause 8: Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or, save as provided by or under the Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.
These clauses thus expressly preserved the sovereignty of the State and the rights of the ruler in respect of matters other than the three which were the subject matter of accession. In fact, as the preamble of the instrument shows the instrument was being executed 'in the exercise of the sovereignty of the ruler in and over the State.'
The effect of a similar instrument of accession executed by the ruler of Rewa was considered by their Lordships of the Supreme Court in the case of Virendra Singh v. State of Uttar Pradesh : 1SCR415 , and it was observed:
'Broadly speaking, the effect of the accession was to retain to the rulers their full autonomy and sovereignty except on three subjects: defence, external affairs and communciation: these were transferred to the Central Government of the new Dominion.'
The Ruler of Bahavalpur had acceded in a similar manner to the Dominion of Pakistan. The question whether the accession affected his sovereignty arose for decision in Sayce v. Bahawalpur State (Ameer), 1952-1 AH ER 326 (F), and it was held that in spite of the accession the Amir of Bahawalpur continued to be a sovereign Ruler of the State.
In arriving at the decision, however, according to the practice in England, the certificate of the Secretary of the department concerned was accepted as conclusive evidence about the status of the Sovereign. The decision was upheld in appeal and the Appellate decision is reported in Sayce v. Bahawalpur State (Ameer), 1952-2 All ER 64 (G).
On account of the execution of this first instrument of accession, therefore, the Ruler of Gwalior cannot be held to have lost any portion of his sovereignty or internal civil jurisdiction. The foreign character of his State therefore continued unaffected by the instrument.
18. In Apri) 1948 the Ruler of Gwalior entered into a covenant along with the Rulers of a number of States for the formation of the United States of Indore, Gwalior and Malwa (Madhya Bharat). The form of the covenant is printed in the White paper as appendix XXXVII. It is not necessary to refer to the various articles of this covenant. Bose, J., observed in : 1SCR415 , in respect of a similar covenant executed by the Rulers of various States in Bundelkhand and Baghelkhand:
'It is important to note that this was a purely domestic arrangement between themselves and not a treaty with the Dominion of India. Each Ruler necessarily surrendered a fraction of his Sovereignty to the whole but there was no further surrender of sovereign powers to the Dominion of India beyond those already surrendered in 1947, namely defence, external affairs and communication.
Despite the re-adjustment the sum total of the sovereignty which had resided in each before the covenant now resided in the whole and its component parts. None of it was lost to the Dominion of India.'
This covenant, too, therefore, did not make the State of Gwalior any less Sovereign State than it previously was. Its only effect was that Gwalior became a part of a bigger administrative unit and instead of remaining a foreign State in its individual capacity its territory became a foreign State as a part of the State of Madhya Bharat.
19. The Rajpramukh of Madhya Bharat then executed the second instrument of accession on 19-7-1948 (vide page 320 of the White Paper). By Clause 3 of this instrument he accepted all matters enumerated in Lists I and III of the 7th schedule of the Government of India Act, 1935 as matters in respect of which the Dominion Legislature may make laws for the United States of Madhya Bharat.
20. Clauses 8 and 9 of the instrument, however, provided:
Clause 8: Nothing in this Instrument shall be deemed to commit the United States in any way to acceptance of any future constitution of India or to fetter the discretion of the Government of the United States to enter into arrangements with the Government of India under any such future constitution. Clause 9: Save as provided by or under the Instrument nothing contained in this Instrument shall affect the exercise of any powers, authority and rights enjoyed by the Raj Pramukh or the validity of any law for the time being in force in the United State or any part thereof.'
It will be noted that this Instrument is an Instrument of accession and not an agreement of merger. The terms are entirely different from the agreement of merger executed by some of the other States like Bhopal, Manipur and Vindhya Pradesh (Appendices XXX, XXXII & XXXIII of the White-paper). It stands on the same footing as the instrument of accession which was executed by the Rulers of the Various States soon after the coming into force of the Indian Independence Act (Vide Appendix VII of the White paper) the principal difference being that instead of the three subjects in respect of which the former Instrument of Accession has been executed the latter Instrument applied to all the matters enumerated in Lists I & III of the 7th schedule of the Government of India Act, 1935.
If the former Instrument of Accession left untouched the full autonomy and sovereignty of the States except on three subjects which were transferred to the Central Government of the Dominion of India, the autonomy and sovereignty of the State executing the second Instrument of Accession remained equally unaffected. Formerly there were three subjects which formed an exception.
This time there were more. The accession being a voluntary concession in respect of certain right made in exercise of the right of sovereignty after expressly reserving the balance of the power, authority and rights of the Rajpramukh (vide Clause 9 of the Instrument of Accession), the fact that the additional subjects include the Code of Civil Procedure and the jurisdiction and powers of courts (items 4 and 15 of the III list of the VII schedule) in our opinion made no difference and did not take away the sovereign character of the State of Madhya Bharat.
On account of this second instrument of Accession also, therefore, the State of Madrya Bharat did not lose its character of a foreign State.
21. The Constitution of India came into force on the 26th of January, 1950. By the earlier proclamation dated the 24th November, 1.949 (vide page 368 of the Whitepaper) the Raj Pramukh of Madhya Bharat had adopted it for that State too. With effect from the 26th of January, 1950 therefore, it must be conceded that politically the State of Gwalior or Madhya Bharat ceased to exist.
By becoming absorbed in the territory of India it no longer remained a foreign State for purposes of politics or international law.
22. It is, however, urged that when the Ruler of Gwalior acceded to the Indian Dominion in 1947 or when the State of Madhya Bharat acceded to that Dominion in 1949 they became part of the Dominion of India and on that account ceased to be foreign States. Reference is made in this connection to Section 5(1) of the Government of India Act, 1935 as amended by the Indian Provisional Constitution Order, 1947.
That clause does provide that as from the 15th August, 1947 the Dominion of India shall be the Union comprising, among other Units, all provinces called Governors' Provinces and Indian States acceding to the Dominion. It was, however, pointed out by their Lordships of the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh. : 1954CriLJ1480 :
'The provisions under the Government of India Act under which the Instrument of Accession has been executed keep the position of the provinces distinct from the position of the acceding States. Section 5(1) of the Government of India Act while making the Provinces as well as the acceding States part of the Dominion of India enumerates the two under separate categories by Clauses (a) and (h). Sub-section (2) of Section 6 specifically provided that, 'An Instrument of Accession shall specify the matters which the Ruler accepts as matters with respect to which the Federal Legislature may make laws for his State, and the Limitation, if any to which the powers of the Federal Legislature to make laws for the State and the exercise of the executive authority of the Federation in his State, are respectively to be subject.'
22a. Section 101 of the Government of India Act in terms says that,
'Nothing in the Act shall be construed as empowering the Federal Legislature to make laws for a Federal State otherwise than in accordance with the Instrument of Accession of that State and any limitation contained therein.'
23. It is, therefore, not possible to accept the contention that merely because of the accession the territories o the Indian States became at par with the Provinces of the Indian Dominion and could not be treated as foreign States for any purpose. Section 5 only enumerates which units can be held to have federated in the Dominion of India and as has already been shown with respect to the United States of America in the ease of a Federal State the various federating units can continue to be foreign to each other for purposes of private International Law until they cease to be so on ac-; count of any specially enacted Legislation.
From the political or the Constitutional point of view, therefore, what was originally the territory of Gwalior must be held to have been a foreign State vis-a-vis Allahabad on the date on which the suit of the appellant was filed, on the date on which it was decreed and at least till the 26th of January, 1950.
24. The question whether the decree of the appellant was the decree of a foreign court having arisen in connection with the execution of the decree it will perhaps be more appropriate if it is considered not from the political or constitutional point of view but with reference to the provisions of the Civil Procedure Code.
25. When the present Civil Procedure Code was enacted in 1908, Section 1 of it provided that that section and Sections 155 to 158 will extend to the whole of British India and the rest of the Code will extend to the whole of British India except the scheduled districts. The first change introduced in this provision was by the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948 which came into force on the 23rd of March, 1948. The amended Section 1 stood like this :
This section and Sections 155 to 158 extend to all the provinces of India. The rest of the Code extends to all the provinces of India except the scheduled districts. The section was again amended by the Adaptation of Laws Order, 1950, which was enacted in June, 1950, but was given a retrospective effect from the 26th January, 1950. Under that amendment the section stood thus :
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. Act II of 1951 which came into force on the 1st of April, 1951 then brought out another change as a result of which the section at present stands like this : This section extends to the whole of India except (a) the Tribal Areas in the State of Assam, (b) Save as hereinafter provided the scheduled areas in the State of Madras, (c) The State of Jammu and Kashmir, and (d) The State of Manipur. Then there is a proviso which is not material.
These changes show that the Civil Procedure Code (Act V of 1908) became applicable to the territory of the former State of Gwalior for the first time on the 1st of April, 1951. Before that date the Code was not applicable to that area.
26. Under Clause (6) of Section 2 of the Code a 'foreign judgment' is defined as a judgment of a foreign court. The term 'foreign Court' is defined in CL (5) of Section 2. Till the 17th of March, 1937 the definition of foreign court stood as below :
'Foreign court means a court situate beyond the limits of British India which has no authority in British India and is not established or continued by the Governor General-in-council.'
27. As a result of the Government of India Adaptation of Laws Order, 1937 which came into force on the 18th of March, 1937 the definition was altered as follows :
'Foreign Court means a court situate beyond the limits of British India which has no authority in British India and is not established or continued by the Central Government or the Crown Representative.'
28. A further change was introduced by the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948 which came into effect from the 23rd of March, 1948 and the definition became :
'Foreign Court means a court situate beyond the limits of the provinces which has no authority in the provinces and is not established or continued by the Central Government.'.
29. This definition has to be read with the definition of the word 'Province' in Section 3, Clause (45) of the General Clauses Act, according to which 'province' means 'a Presidency, a Governor's province, a lieutenant Governor's province or a Chief Commissioner's Province.' By the Adaptation of Laws Order, 1950 which came into force from the 26th of January, 1950, the definition of 'foreign court' became 'foreign court means a court situate beyond the limits of the States which has no authority in the States and is not established or continued by the Central Government.'
This very Adaptation of Laws Order introduced a new Clause (21) in Section 2 of the Civil Procedure Code which defined 'State' as meaning 'a part A State or Part C State' and 'States' meaning all the territories for the time being comprised within part A States or Part C States.'. An amending Adaptation of Laws Order of 1950 was enacted in June of that year but was given retrospective effect from the 26th of January, 1950.
It made no change in this definition. Act II of 1951 came into force on the 1st April, 1951. According to the amendment introduced by it in Section 2(5) a 'foreign court' means 'a court situate outside India and not established or continued by the authority of the Central Government.' By the same Act, Clause (21) of Section 2 which had been introduced by the Adaptation of Laws Order, 1950 was deleted.
The change introduced by the Adaptation of Laws Order, 1950 has to be considered along with the provisions of the Constitution because it was for the first time in the Constitution that States were divided into Parts A, B and C. Madhya Bharat which included the former State of Gwalior was described in the Constitution as a Part B State.
The effect of these varying definitions of the term 'foreign court' given in the Civil Procedure Code is that till the 1st of April, 1951 a court in Gwalior or Madhya Bharat continued to be a foreign court vis-a-vis courts in Uttar Pradesh. It ceased to be a foreign court only with effect from the 1st of April, 1951.
30. The result is that, as has been held by the learned Single Judge, considered with reference to the provisions of the Civil Procedure Code as in force in Uttar Pradesh, the court which passed the decree in question was a foreign court on the date when the suit was instituted in it as well as on the date on which it passed the decree.
It was a foreign court even on the 25th of April, 1950 when it ordered that the decree be transferred to the Civil Judge, Allahabad for execution. It however ceased to be a foreign court be-fore it actually transferred the decree for execution on the 14th of September, 1951.
31. The action brought by the appellant in the Gwalior court was an action in personam. It is not disputed that the respondent never resided or owned property within the territorial limits of that court. They also did not submit themselves to the jurisdiction of that court in any other manner. The decree passed against them is an ex parte decree.
If, therefore the court of the District Judge of Gwalior which passed the decree was a foreign court, the decree cannot be said to have been passed by a court of competent jurisdiction and the respondent could in accordance with the dictum in Gurdayal Singh's case (A), treat it as an absolute nullity.
32. It is however urged that their Lordships of the Privy Council did not use the word nullity in that case in the sense in which it is popularly understood. They themselves conceded that if local legislation permitted, a valid decree could be passed against a non-resident foreigner. They only meant to lay down, it is contended, that a decree of that kind would not ordinarily be enforceable outside the territory of the State in which it was passed but would become executable outside the territory also if the impediment to its executability somehow got removed on account of political changes or appropriate legislation.
33. We find it difficult to accept this contention. The principles which their Lordships were reiterating in Gurdayal Singh's case (A), have always been considered to be well established.
34. Story in his commentaries on Conflict of Laws (4th Edn., 1852) laid down at page 994 (para 603) in respect of foreign judgments that
'of course they may be avoided, if they are founded on fraud, or arc pronounced by a court not having any competent jurisdiction over the cause'.
Even in respect of judgments in rem he observed at page 983 ;
'But in this class of cases we are specially to bear in mind, that to make any judgment effectual the court must possess and exercise a rightful jurisdiction over the res, and also over the person, and at least so far as the Res is concerned; otherwise it will be disregarded.'
35. Dicey in his book on 'Conflict of Laws' (6th Edn., 1949) laid down at page 388 (rule 77) :
'Any foreign judgment which is not pronounced by a court of competent jurisdiction is invalid in England',
and at page 398 he stated :
'An invalid foreign judgment has (subject to the exception hereinafter mentioned) no effect in England'.
36. The second of the four requirements for recognition of foreign judgments, according to Schmitthoff's English Conflict of Laws' (page 419), is that the judgment must have been given by a court of competent international jurisdiction. International jurisdiction, according to him, (vide page 421) so far as actions in personam are concerned, is based on the twin principles of presence and submission. If these requirements of competency in the international sense are not fulfilled the foreign judgment cannot be recognised.
37. Cheshire in his 'Private International Law' (3rd Edn., 1935) observed at page 778:
'The first and overriding essential for the effectiveness of a foreign judgment in England is that the adjudicating court should have had jurisdiction in the international sense over the defendant. A foreign Court may give a judgment which, according to the system of law under which it sits, is conclusively binding upon the defendant but unless the circumstances are such as in the eyes of English law justify the Court in having assumed such jurisdiction, the judgment does not create a cause of action that is actionable in England the requirement is that the foreign Court should have been a Court of competent jurisdiction in the international sense i. e., according to the principles of Private International Law as understood in England'.
It follows that if this competency is absent, the judgment would not be effective.
38. The same appears to be the law in America. According to the 'Re-statement of the Law (Conflict of 'Laws)' as adopted and promulgated by the American Law Institute, 1934, page 500,
'A judgment, decree or other order of a court is valid if, but only if,
(a) it is rendered by an impartial tribunal after a reasonable notice and an opportunity to be heard has been given to all persons to be bound thereby;
(b) the state in which it is rendered has jurisdiction to act judicially
(i) with respect to the person or persons affected, or
(ii) with respect to the subject-matter thereof;
(c) no limitation upon the exercise of judicial jurisdiction by the state has been exceeded;
(d) the court is competent by the law of its state to exercise judicial jurisdiction'.
39. Willis in his book on 'Constitutional Law' while dealing with the effect of the full faith and credit clause in the American Constitution on judgments observed at page 456:
'A judgment rendered without jurisdiction over the defendant in accordance with the fundamental principles of conflict of laws is not due process of law. Such a judgment is entitled to no respect in the state where rendered and therefore it is not entitled to respect in other states .....'.
40. Willoughby on the 'Constitution of the United States' (page 270) is of the same opinion. According to him,
'The validity of judgments or decrees in states other than those in which they are obtained depends upon the court which rendered them having obtained jurisdiction'.
He then notes with approval the doctrine carefully laid down in Pennoyer v. Neff, (1879) 95 U.S. 714 (J) that
'It is in virtue of the State's jurisdiction over the property of the non-residents situated within its limits that its Tribunals can inquire into that non-resident's obligations to its own citizens.....
If the non-residents have no property in the State, there is nothing upon which the tribunals can adjudicate .....
Where lift is not within such territory and is not personally subject to its laws, if, on account of his supposed or actual property being within the territory, process by the local laws may, by attachment, go to compel his appearance and for his default to appear, judgment may be pronounced against him; such a judgment must, upon general principles, be deemed to bind him only to the extent of such property, and cannot have the effect of a conclusive judgment in personam, for the plain reason that, except so far as the property is concerned, it is a judgment coram non judice.'
41. Every one thus appears to be agreed that if a decree is passed by a court which is incompetent in the international sense of the term, the decree is invalid, ineffective, not entitled to respect and can be disregarded as a judgment coram non judice. It follows that when the Privy Council described such decree as 'absolute nullity' it was not using in exact language
It said what it actually intended to say. If the! learned Judges meant to lay down that the decree was valid and there was merely an impediment in the way of its execution in other territories, it is difficult to imagine why they did not say so in plain words. When therefore it is contended that in describing such a decree as an absolute nullity they did not mean that it was nullity but only meant that there was an impediment to its enforcibility, something is being attributed to them which they never said.
42. The foundation of the rule that a decree passed against non-resident foreigners who have not submitted to the jurisdiction of the court is a nullity appears to lie in the fact that as Cheshire has put it in his Private International Law at page 779:
'Since a foreign judgment is actionable, only because it imposes an obligation upon the defendant, it follows that any, fact which negatives the existence of that obligation is a bar to the action. One of the negativing facts must necessarily be that the defendant owes no duty to obey the command of the Tribunal which has purported to create the obligation.
There must be a co-relation between the legal obligation of the defendant and the right of the tribunal to issue its command.'
43. Lord Haldane in John Russel and Co. Ltd. v. Cayzer (1916) 2 AC 298 at p. 302 (K), laid down the 'root principle of the English Law about jurisdiction.' It was according to him
'That the judges stand in place of the Sovereign in whose name they administer justice and that therefore whoever is served with the king's writ and can be compelled consequently to submit to the decree made is a person over whom the courts have jurisdiction.'
44. A foreign court can thus have jurisdiction only over persons amenable to its writ and bound to obey it, or persons who have voluntarily submitted to its jurisdiction. Only those persons are obliged to obey its command. Its decrees can therefore be effective only against those persons. Persons who do not fall in that category can ignore the writ as well as the decree that can follow it, and treat them as non-existent.
Such a decree is thus in the eye of the law a non-existent decree which has no force of its own. On this account it has been described as an absolute nullity.
45. We are therefore not prepared to accept the submission of the learned counsel for the appellant that the decree in question in this case was not a nullity and there was only an impediment to its execution,
46. The two main grounds urged in support of the submission wore (1) The respondent may have been a non-resident foreigner so far as the State of Gwalior was concerned, the cause of action of the appellant's suit against them had, however, arisen in that State. Section 18 of the Civil Procedure Code of the State permitted courts in the State to entertain suits against non-resident foreigners if the cause of action had arisen in that territory.
Even according to the dictum of Gurdayal's Singh's case (A), there being this special piece of Legislation the decree in question Became a valid decree so far as the State of Gwalior was concerned. How cbuld a decree which was valid for one territory be an absolute nullity so far as other States were concerned. (2) Gwalior was a territory of an Indian State.
Though in fact there was no reciprocity between that State and the Dominion of India in respect of execution of decrees, the Government of Uttar Pradesh could in accordance with Section 44 of the Civil Procedure Code by notification in the official gazette declare that the decrees of the State of Gwalior may be executed in Uttar Pradesh as if they had been passed by the courts in that State.
Thus, the decrees of Gwalior could have been made executable at Allahabad simply by the issue of a notification by the State Government. If the decree was an absolute nullity how could it be made executable only by a notification?
47. The [earned counsel for the respondents tried to meet the first argument by urging that opinion was not unanimous on the question whether the court of a State could pass an effective decree against a non-resident foreigner simply because the whole or any part of the cause of action of the suit had arisen within its own territory.
If a defendant was not amenable to the jurisdiction of the court at all how could the court pass any decree against him on any ground. In any case the 'special local legislation' which their Lordships of the Privy Council had in mind when laying down in Gurdyal Singh's case (A), that on account of it a decree against a non-resident foreigner could be valid in the country of the court by which it was pronounced was of the kind which was being challenged in the previous year (1893) in the case of Ashbury v. Illis, 1893 AC 339 (L).
Section 18 of the Gwalior Civil Procedure Code really corresponds to Section 20 of the Code of Civil Procedure (Act V of 1908). The provisions of the section laid down only a general rule of law without any reference to non-resident foreigners and the section was not intended to permit ex parte proceedings against such persons.
In Private International Law, it is well established that the accrual of the cause of action in a particular territory docs not make the courts of that territory competent to pass the decrees against nonresident foreigners who do not in any way submit to the jurisdiction of that Court. Section 18 could not, therefore, it is urged, make the decree a valid decree even for Gwalior.
48. In view of the observation of their Lordships of the Privy Council in the case of Annamalai Chetty v. Murugasa Chetty, ILR 26 Mad 544 (M), that they did not see any reason for doubting the correctness of the decision of the case of Girdhar Damodar v. Kassignr Hiragar, ILR 17 Bom 662 (N), the general trend of opinion in this country has been inclined towards the view that Section 20 of the Civil Procedure Code is a piece of special local legislation contemplated in Gurdayal Singh's case (A), Vide Ram Bhat v. Shankar Biswas, ILR 25 Bom 523 (O); Gaekwar Baroda State Railway v. Habibullal : AIR1934All740 and Suresh Narain Sinha v. Akhauri Balbhadra Prasad : AIR1957Pat256 .
Moreover, the third explanation and the illustration appended to Section 18 of the Civil Procedure Code of Gwalior appear to clearly authorise the court of that State to entertain suits against non-resident foreigners when the cause of action for the suit has arisen in that country. It is however not necessary for us to express any final opinion on the point.
We will assume that the decree in question was valid so far as the Gwalior territory was concerned and could have been enforced against the respondents if they happened to be present in that territory or to possess properties therein. Even in that case so far as the territories outside Gwalior were concerned it could be an absolute nullity.
There appears to be no principle of law which can prevent a decree valid against one person or for one purpose or in respect of one territory from being null and void against other persons, for other purposes or in respect of other territories. This follows as a necessary corollary from the observations made in Gurdayal Singh's case (A). It is therefore not correct to say that because the decree was valid for the territory of Gwalior it could not be null and void for other territories.
49. As amended by the Adaptation of Laws Order, 1950, Section 44 of the Civil Procedure Code applies only to revenue decrees. Prior to that amendment it was certainly open to the Provincial Government by a notification under the section to declare that the decrees of the Gwalior State may be executed in the provinces as if they had been passed by a court of British India. No such notification was, however, issued at any time.
The mere possibility of such a notification being issued cannot in our opinion affect the nature or character of the decrees of the Gwalior State, and make them valid if they were really null and void. Even if a notification had been issued under the section in respect of the decrees of the Gwalior State it appears to be very doubtful whether it would have applied to decrees passed anterior to the date of the notification unless it was expressly made applicable to them.
Moreover, if on the basis of any such notification an attempt had been made to execute in an Indian Province an ex parte decree against a non-resident foreigner passed by a court in the Gwalior State it would have in our opinion been open to the judgment-debtor to raise the objection that the decree was not executable because it was a nullity.
In the case of Sheo Tahal Ram v. Binaek Shu-kul : AIR1931All689 , an ex parte decree had been passed against a resident of Mirzapur by a court in the Banaras State though the defendant had not submitted to the jurisdiction of that court. Under a notification issued under Section 44, C. P. C., the decree was transferred to the Mirzapur court for execution and the judgment-debtor raised an objection that it could not be executed on account of being a nullity.
It was held that the objection was well founded as there was nothing in Section 44 which compelled a British Indian Court to execute a decree transferred to it by a Native State Court even if it is satisfied that the decree was passed without jurisdiction. It had ample discretion to refuse to execute the decree. It was further observed that
'Section 44 does not override Section 13. It only confers authority to execute a decree which is in every way a valid and enforceable decree. In a suit on a foreign judgment objection as to the con-clusiveness of the judgment can be raised on the ground mentioned in Section 13.
If the decree is not binding on the judgment-debtor on any of the grounds the execution court is entitled to take the fact into consideration.'
50. We therefore do not find it possible to accept the first contention of the appellant that the decree in question was not a nullity and was not covered by the decision in Gurdayal Singh's case (A).
51. It was then urged that in coming to the conclusion that the decree was not executable at Allahabad in 1951 the learned Single Judge ignored the legislation which had been enacted after the passing of the decree. He wrongly thought that the material date was the date of the institution of the suit or the passing of the decree.
The controversy should have been decided with reference to the date on which the execution was sought. If on that date there was no effective bar to the execution of the decree the decree-holder was entitled to proceed with the execution. The Legislations which the learned Judge is alleged to have ignored arc (1) Article 261(3) of the Constitution, and (2) Section 43 of the Civil Procedure Code as it stood before being amended by the provisions of the Civil Procedure Code (Amendment) Act (Act II of 1951).
52. Article 261(3) provides:
'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.'
It is urged on the basis of this provision that after the coming into force of the Constitution the territory of Gwalior became a part of the territory of India. Decrees passed by the Civil Courts in Gwalior must, therefore, be held to be capable of execution in Allahabad which is also a territory of India.
53. Three objections were raised against this contention. The first was that though the word 'decree' had been specifically mentioned in Articles 132, 133 and 136 of the Constitution it was conspicuous by its absence in Article 261(3). This deliberate omission showed that Article 261(3) was not intended to apply to decrees.
The second objection was that in any case the provision covered only those decrees which had been passed by civil courts in any part of the territory of India. What constitutes 'the territory of India' is mentioned in Article 1 of the Constitution. The term 'territory of India' is therefore a technical term. If Article 261(3) applies only to decrees passed by Civil Courts in the territory of India it can cover only those decrees which have been passed after the coming into force of the Constitution.
It cannot apply to decrees passed on any earlier date. The decree in question having been passed in 1947 and the Constitution having come into force on 26-1-1950, Article 261(3) could not apply to it. The third objection is that under Article 261(3) a decree can be executed only 'according to law'. The law is that an ex parte decree against a nonresident foreigner who has not submitted to the jurisdiction of the court which has passed the decree is a nullity. No advantage of Article 261(3) can therefore be taken in respect of such a decree.
54. It is not easy to explain the omission of the word 'decree' from Article 261, Clause (3) particularly when it was used in the earlier Articles 132, 133 and 136. It can however be said that in spite-of the fact that in the Civil Procedure Code the word 'judgment' has been defined in a narrower sense as a statement given by the Judge of the grounds of his decision, it has been consistently held in this country that that definition is good only for purposes of the Code and that when used in other places the word judgment bears its ordinary meaning which is given to it by the English Courts,. viz., a judicial decision given on merits of the dispute before the court.
It really means a decree as defined in the Civil Procedure Code (Vide Kuppu Swami Rao v. The King ; Sevak Jeranchod Bhogilal v. Dakore Temple Committee ; & Raghava Charyulu v. Venkata Rama-nuja, : AIR1954Mad406 . It is, therefore, possible that the term 'final judgment' was used in Article 261(3) to include decrees. Ordinarily, only decrees are capable of execution, not judgments as defined in the Civil Procedure Code,. The word 'decree' was probably used in Articles 132, 133 and 136 only as a matter of abundant caution.
It is, however, unnecessary to adjudge the validity or otherwise of the respondents' first objection. They stand on definitely firmer ground in respect of their other two objections. It cannot be disputed that the 'territory of India' as defined in Article 1(3) of the Constitution came into existence for the first time on 26-1-1950. Before that date there was nothing which could be considered 'the territory of India' in the sense in which the term has been used in the Constitution.
A decree passed before the coming into force of the Constitution cannot therefore be considered to be a decree passed by a court situate within the territory of India. In the case of Janardhan Redd v. The State : 1SCR940 , certain persons who had been convicted by the Hyderabad Court prior to 26-1-1950 wanted to appeal to the Supreme Court against their conviction. They made an application for special leave under Article 136(1) of the Constitution.
The Supreme Court could grant leave to appeal under that provision only against a judgment, decree, determination of sentence, or order passed or made by any court or Tribunal in 'the territory of India'. The Supreme Court held that leave could not be granted to the applicants because the judgment in their case had been delivered by Hyderabad High Court prior to 26-1-1950 when that Court was not a court in the territory of India.
If the Hyderabad High Court was not a court in the territory of India prior to the coming into force of the Constitution for purposes of Article 136(1) of the Constitution, how can it be contended that the Gwalior Court was a court in the territory of India in November 1947 for purpose of Art, 261(3) of the Constitution.
55. The matter can be looked at from another point of view also. According to the case of Keshavan Madhwan Menon v. State of Bombay : 1951CriLJ680 , every legislation is prima facie prospective unless it is expressly or by neces-sary implication made to have retrospective operation. This rule of interpretation is applicable for the purposes of interpreting the Constitution also.
There is therefore an initial presumption that Article 261(3) has only prospective application. There is nothing in Article 261(3) which indicates either expressly or by necessary implication that it was intended to apply to decrees passed before the date on which the Constitution came into force. Various reasons may be suggested why the Constitution makers did not want the provisions of Article 261(3) to apply to pre-Constitution decrees.
The unsatisfactory nature of the judicial system in some of the former Native States may have been one of the reasons (vide para 228 of the White Paper on Indian States page 116). If the decrees passed in States like Gwalior in the pre-Constitution days are held to be executable under Article 261(3) it will in effect mean giving retrospective operation to the Article without there being anything in the Article itself to justify that course.
It was urged that merely because facts Or events which happened before the enactment of a statute have to be referred to in connection with its application, it cannot be said that the enactment is being of retrospective effect. That may be so, Here, however, the pre-Constitution decrees are not only being referred to or considered for some purpose connected with the application of Article 261(3) but that Article is sought to be used to validate and enforce the decrees which but for the provision would be void and unenforceable. If that is not giving retrospective effect to the provision it is difficult to conceive of anything which is.
56. It must also be conceded that even under Article 261(3) the decrees can be executed only in accordance with law. The law in respect of ex parte decrees passed against non-resident foreigners is well-settled. Such decrees are to be treated as nullity by the court of every nation except (when authorised by local special legislation) in the country of the forum by which it was pronounced.
It is also the law that objection in respect of the competency of the court which passed the decree can be raised in the court in which it is sought to be executed. If, therefore, the decree in question is allowed to be executed at Allahabad it will obviously not be in accordance with law.
57. Section 43 of the Civil Procedure Code is the other provision on which reliance is placed by the learned counsel for the appellant. As it stood after its amendment by Act II of 1951 which came into force on 1-4-1951, the section applies only to two kinds of decrees (1) decrees passed by any civil court established in any part of India to which the provisions of the Civil Procedure Code do not extend and (2) decrees passed by any court established or continued by the authority of the Central Government outside India.
The decree in question does not fall under either of the two categories. At the time it was passed the court which passed it was not a court established in any part of India, nor was it a court established or continued by the authority of the Central Government outside India. In its present form, therefore, Section 43 is of no help to the decree-holder. '
It is however urged that the section as it stood after being amended by the Adaptation of Laws Order, 1950 and the Adaptation of Laws (Amendment) Order. 1950 provided that any decree passed by a civil Court in part B State could, if it could not be executed within the jurisdiction of the court which passed it, be executed in the manner provided in the Civil Procedure Code within the jurisdiction of any court in the State of India.
The decree in suit had originally been passed by a court in the State of Gwalior. After the formation of the State of Madhya Bharat it became a decree of a court of that State. That State was a part B State. As a decree of the part B State, therefore, it became executable in the State of Uttar Pradesh under Section 43 as it stood on 26-1-1950. The fallacy in this argument, in our opinion, lies in ignoring the fact that Part B States came into existence after coming into force of the Constitution on 26-1-1950.
There were no part B States before that date, Section 43 as it stood on 26-1-1950 could therefore apply only to decrees which were passed after that] date and was not intended to apply to earlier decrees of States like Gwalior or Madhya Bharat which could not in any manner be considered to be decrees of Part B States.
58. The learned counsel for the respondents urged another ground also in support of his plea that the appellant could not take any advantage of Section 43 as it stood on 26-1-1950 or as it stands now. He argued that it was common ground that Section 43 as it stood immediately before the coming into force of the Constitution, i. e., on 25-1-1950 did not cover the case of the appellant.
It was amended by the Adaptation of Laws Order, 1950. The Adaptation of Laws (Amendment) Order, 1950 which was enacted in June but was given retrospective effect from 26-1-1950 further amended it by Act II of 1951, the section, as it stood amended on 26-1-1950, was repealed and replaced by the section in its present form. Section 20 of the Adaptation of Laws Order, 1950 (originally it was Section 20 but it was renumbered as 20 by the Adaptation of Laws (Third Amendment) Order, 1951) as well as Section 20 of Act II of 1951 provided that any rights which had already been acquired were to remain unaffected by the amendment or the repeal.
Under the law as it stood prior to the 26th of January 1950, the respondents had a right to resist the execution of the decree of the appellant & to treat it as invalid and in fact non-existent. They could insist that as the decree was a nullity in execution of it the appellant could not attach and property belonging to them. This right of theirs had not been taken away and on the contrary has been expressly preserved by Section 20 of the Adaptation of Laws Order, 1950 as well as Section 20 of Act II of ,1951.
59. The reply of the learned counsel for the decree-holder is two-fold. He urges first that what is claimed to be a right to resist execution is not really a right at all, His second contention is that even if it be deemed to be a right it is taken away not by legislation but by an Act of the State.
The absorption of the State of Madhya, Bharat into the territory of India on account of the enactment of the Constitution is really an act of State and if as a result of it the decree of the appellant became executable at Allahabad, the respondents cannot complain.
60. A right is an interest which is recognised and protected by law. As it is recognised by law a man is entitled to have it. As it can be protected by law the possessor can enforce it by an appropriate action in a court. Immunity is one aspect of right and entitles the possessor to see that no one intereferes with it. It also furnishes him with a complete answer to any action intended to interfere with that right. Considered from this point of view the right of the respondents to ignore the decree of the appellant on the ground that it was a nullity, to refuse to obey it and to see that their properties were in no way proceeded against in execution of it, must be held to be a substantive right.
If the respondents had that right at the time when the decree was passed it remained unaffected in view of Section 20 of the Adaptation of Laws Order, 1950 by the provisions of that order and in view of Section 20 of the Civil Procedure Code (Amendment) Act, 1951 by the provisions of that enactment.
61. In view of what was held by their Lordships of the Privy Council in the case of Vajesingji Jorawar Singhji v. Secretary of State, 51 Ind App 357: (AIR 1924 PC 216) (X), it cannot be disputed that absorption of a territory by another is an act of State and after it takes place the inhabitants of the absorbed territory can claim in the Municipal Courts established by the new Sovereign only such rights as that Sovereign has through his officers recognised.
Such rights as they had under the rule of his predecessors avail them nothing. But in calling this principle to his aid learned counsel for the appellant lost sight of the fact that the State in which the appellant's decree was passed was the absorbed territory and not the absorbing State. As an act of State the absorption could affect only the rights of the inhabitants of the absorbed State and it was for these inhabitants to prove that the rights which they wanted to claim had been recognised by the Sovereign of the absorbing State through his officers.
The rights of the inhabitants of the absorbing State remain entirely unaffected by the absorption, The respondents belong to the absorbing State. The rights and immunities which they possessed remained entirely unaffected by the fact that their State had included within its territory the territory of the appellant's State.
62. According to the appellant, the material date was the date on which the decree was transferred to the Allahabad Court and the execution application was filed. The respondents, on the other hand, contend that the material date was the date on which the decree was passed. The observations made by their Lordships of the Supreme Court in the case of Kishori Lal v. Shanti Devi : AIR1953SC441 , indirectly appear to support the respondents' contention.
In that case an order had been passed under Section 488 of the Criminal Procedure Code on 29-3-1946 by a Magistrate at Lahore awarding maintenance to Shanti Devi at Rs. 70 a month. On the date on which the order was passed it could be enforced at any place in British India including Delhi. After the partition of the country Shanti Devi wanted to enforce the order at Delhi and her application for that purpose was opposed on the ground that as on the date of the execution the order of the Lahore Magistrate had become that of a foreign Court, the order had become unexecutable there (at Delhi). That contention was repelled and the reason as put forward by Bose J., was
'We see no reason why an order which was competent and valid at the time it was made and which could have been enforced in Delhi should cease to be competent simply by reason of the partition ..... But the order here was a competent order of a domestic Tribunal when it was made and could then have been enforced in the Delhi Court. In the absence of any specific bar we see no reason why it should lose its Indian nationality simply because the place in which it was born was later made a foreign territory.'
The material date was therefore the date on which the order was passed and not the date on which it was sought to be executed. Applying the same principle to the present case if the decree in question was a nullity and was on that account unenforceable at Allahabad at the date on which it was passed how could the dead decree be resuscitated simply because on account of some political changes Allahabad and the place where the decree was passed became parts of the same territory.
Indeed, if dead decrees are revived in this manner without express legislation permitting the course, gross injustice is likely to result in many cases. The respondents may not have thought it necessary to appear and contest the suit in which the decree was passed because at that time they were sure that even if the decree was passed it would be of no avail and would not affect them in any manner.
Now if the decree is held to be executable they will be deprived of all the defences which they could have legitimately put forward at that time. Unless, therefore, there are clear, strong and compelling reasons in support of the view that the decrees have now become executable though they were not ,so when they were passed, one would not be easily prepared to endorse it.
63. All the three contentions urged against the view of the learned Single Judge thus appear to be untenable.
64. The question which has arisen before us in this case has been considered by some of the other High Courts in India also. The reported decisions indicate a distinct cleavage of opinion.
65. One line of thought which in a way supports the appellant has been adopted by the Bombay High Court. In Chunni Lal Kasturchand v. Dundappa Damappa : (1951)IILLJ1Bom , the appellant had obtained a decree against the respondent from the court of the Civil Judge Belgaum on 11-3-1938. The respondents were residents of the Native State of Jamkhandi. They had not submitted to the jurisdiction of the Belgaum Court in any way but the cause of action for the suit had arisen within that district.
The Raja Saheb of Jamkhandi had issued a notification under the provision analogous to Section 44, C. P. C., declaring that decrees of a civil court in British India could be executed in the State Courts as if they were passed by the civil courts in the Jamkhandi State. Taking advantage on this notification, the appellant got the decree transferred to Jamkhandi and sought to get it executed there.
The respondent put in execution an objection that as the decree was an ex parte decree passed by a foreign court it could not be executed in the Jamkhandi Court. This objection was upheld by the trial court and the execution application was dismissed on 10-3-1948. The appellant then took the matter in appeal to the High Court and the main contention urged on their behalf was that as Jamkhandi had merged in the Bombay province prior to the date of the dismissal of the execution application the court of Jamkhandi should not have refused to execute the decree.
The High Court took the view that on the date of the decree the Belgaum Court was certainly a foreign court which was not competent to pass the decree. By the time the decree was sought to be executed in Jamkhandi, however, that State had become a part of Bombay and the courts of that place had on that account ceased to be a foreign court. The trial court could therefore execute the decree. This decision was arrived at on 10-2-1950. (66) The same question arose in another case a few months later. That case is reported as Bhagwan Shankar v. Raja Ram Bapu Vithal : AIR1951Bom125 . Bhagwon Shankar in that case had obtained an ex parte money decree from the Court of the Subordinate Judge at Sholapur on 13-9-1937 against the defendant Rajaram who was a permanent resident of Akalkote State & had not submitted to the jurisdiction of the Sholapur State. The decree was subsequently transferred for execution to Akalkote and on 9-6-1945 an application was made to the Akalkote Court for execution. This application was dismissed on 8-6-1948 though before that date Akalkote had merged Into the Union of India. The dismissal was based on the ground that the decree being a nullity could not be executed at Akalkote. The decree-holder went up in appeal which came up before a Division Bench.
The case of Chunnilal Kasturchand v. Dundappa Damnppa (Z), was cited before the Division Bench hut it was felt that it needed reconsideration. The question was therefore referred to a Full Bench. The Full Bench came in the conclusion that the case of Chunnilal Kasturchand v. Dundappa Damappa (Z), had been correctly decided. The main reason, which Chagla C. J., who delivered the opinion of the Full Bench, gave in support of the conclusion, was that the cause of action for the suit having arisen in Sholapur the decree passed by the court at that place could not have been considered a nullity even though the defendant had not submitted to the jurisdiction of the Court.
Being saved by special local legislation the decree was valid decree so far Sholapnr Court way concerned. There was only an impediment to its execution at Akalkote and that impediment had been removed by Akalkote getting merged in the State of Bombay. The decree could, therefore, be executed at Akalkote after the merger.
67. In the third case of the Bombay High Court the question arose only in an indirect manner. That case is the case of Vasant Atma Ram v. Dattoba Raja Ram. AIR 1956 Rom 49 (Z2). In that case in a suit fought in the Belgaum Court between the parties it had been held that the plaintiff had been validly adopted. Though the parties belonged originally to the Kolhapur State and had migrated to Belgaum, the adoption of the plaintiff had not been challenged on the ground that it was not valid according to the law of the Kolhapur State.
Later, on the basis of the adoption the plaintiff filed a suit in the Kolhapur Court claiming a share in the Kolhapur properties. It was pleaded that the decision of the Belgaum Court being that of a foreign Court was not binding. During the pendency of the suit the Kolhapur State merged in in the province of Bombay. It was held that the validity of the adoption not having been challenged in the Belgaum Court in the previous suit the decision of that suit became binding.
It was also observed that Kolhanur having merged in the Bombay State during the pendency of the suit the previous decision could not be considered to be that of a foreign Court qua the Kolhapur Court, The decision in the Belgaum Court was not an ex parte decision, but had been given on merits after the parties had appeared. No particular reason was given in support of the view that on account of the merger the previous decree of the Belganm Court could not be considered to be that of a foreign Court.
68. With profound respect to the learned Judges who decided the Full Bench case of Bhag-wan Shanker v. Rajaram Bapu Vithal (Zl), we do not find it possible to share the view that in Gurdayal Singh's case (A), their Lordships of the Privy Council had not laid down that a decree pronounced by a foreign court in absentum in a personal action to the jurisdiction of which the defendants had not in any way submitted themselves was not an absolute nullity, but had intended to say that it could be executed in other countries also but for an impediment.
As we have already shown, the competency of a foreign Court to pass the decree is really the foundation of its enforcibility and the court can get that competency only in one of the ways recognised by international law. If the competency is absent, the decree is not a valid decree and can be treated as a nullity. On another ground also, this Bombay case and the other case in which it was followed can be distinguished from the case in hand.
The Native States of Jamkhandi and Akalkote to which the decrees in these cases had been transferred for execution had got merged in the Bombay Province. On account of the merger they had completely lost their previous identity. The merger had taken place before the question of execution arose. The State of Gwalior or the larger unit in which it got subsequently integrated, viz., Madhya Bhnrar, however, never got merged in the Dominion of India,
They became part of the territory of India only on the coming into force of the Constitution. Thev retained the major part of their sovereignty till 26-1-1950. The considerations applicable to merged territories may be quite different from those applicable to territories which did not get merged. The decrees in question in the Bombay cases had been obtained from courts in the Dominion of India in which the Native States in which they were Iater sought to be executed got absorbed.
At the time of being passed they could be executed not only in the district in which they were passed but throughout the territory to which the Indian Civil Procedure Code applied. As a result of the merger, the States, in which they were sought to be executed, had become parts of the territory to which the Indian Civil Procedure Code applied. In the circumstances, after the merger it could be argued that they had become executable at those places also. The case before us is a converge case. Here, Allahabad, the place where the decree is sought to be executed has not been absorbed in the territory of Gwalior or Madhya Bha-rat the Court of which had passed the decree. It is the latter territory that has got absorbed in the territory of which Allahabad was a part.
69. The Hyderabad High Court merely followed the case of : AIR1951Bom125 , and an unreported case of its own High Court viz., J. H. Subbiah v. Rewachand Daulat Ram, A. No. 6 of 1951, D/- 24-7-1955 (Hyd) (Z3), a case which has not been available to us -- in Ramdayal v. Shankar Lal, AIR 1952 Hyd 80 (FB). (Z4), Dyna Craft Machine Co. v. Syed Jahangir Ali, AIR 1953 Hyd 19 (Z5); and Meherunnissa Begum v. Venkat Murli Manohar Rao, (S) AIR 1955 Hyd 184 (Z6). The Bombay view found favour with the Rajasthan High Court in Radheyshiam v. Firm Sawai Modi Busdeo Prasad , with the Travancore-Cochin High Court in Moosakutty Hajee v. Pylotu Joseph, AIR 1952 Trav-Co. 89 (Z8), with the Sanrashtra High Court in Patel Kala v. Patel Mohan Bhagwan, AIR 1953 Sau 16 (FB) (Z9), with the Madhya Bharat High Court in Firm Lunaji Narayan v. Purushottam Charan, AIR 1953 Madh-B 225 (Z10), and in Brajmohan Bose Benimadhav v. Kishorilal Kishanlal (S) AIR 1955 Madn-B. 1 (FB) (Z11), by a majority of 3 to 2, and with the High Court of Jammu and Kashmir in Murarilal Saraf v. Bhagwan Das Gurdyal, (S) AIR 1955 J & K 5 (FB) (Z12).
The last mentioned case can be distinguished on the ground that the decree in that case had been passed after the coming into force of the Constitution, and Article 261(3), theretore, applied. The other cases either expressly purport to follow the case of : AIR1951Bom125 , or adopt the reasoning of that case without giving any additional ground. It is therefore not necessary to discuss them in detail.
70. The contrary view was taken first by the Mysore High Court in the case of H.M. Subbarava Setty & Sons v. S.K. Palani Chetty and Sons, AIR 1952 Mys 69. (Z13). An ex parte decree in that case had been obtained at Coimbatore on 28-3-1949 against the defendants who belonged to the Mysore State. In the Mysore State after Mysore had become a part of the Indian Union it was held that it was not executable as it was a nullity, being a decree passed by a foreign court against a non-resident foreigner.
The learned Judges expressly dissented from the Bombay view. The Mysore view commended itself to a Division Bench of Rajasthan High Court in the case of Premchand v. Danmal, AIR 1954 Raj 4 (Z14-15). The decision in this case being contrary to the earlier decision in the case of , a Full Bench of five Judges was constituted in the case of Laxmichand v. Mst. Tipuri , to resolve the conflict.
The Full Bench affirmed the latter decision, but in view of the special legislation applicable to Rajasthan, a majority of the Judges were of opinion that
'Even if a court was a foreign court at the time when the decree was passed and even if the defendants were non-resident foreigners who had not submitted to its jurisdiction, if the State in which the court was situated had subsequently become a part of Rajasthan, the decrees had become the decrees of the present court of Rajasthan and were therefore executable in the present State of Rajasthan without the judgment-debtors having the right to raise an objection under Section 13, C. P. C.'
Modi J., dissented. The Mysore view was also accepted as correct by a Full Bench of the Travancore-Cochin High Court in P.C. Vareed v. Gopalbai Bahubai Patel Rambai Gopalbai Patel, AIR 1954 Trav-Co. 358 (Z17-18), which thus overruled the earlier Single Judge decision of that court in AIR 1952 Trav-Co. 89 (Z8).
The Mysore view was followed by the Saurashtra High Court in Gokaldas Narainji v. Dwarkadas Jethabhai, AIR 1954 Sau 123 (FB) (Z19). This decision being a Full Bench decision must be held to have overruled the earlier contrary decision in AIR 1953 Sau 16 (Z9). The Mysore view has also been preferred to the Bombay view by the Calcutta High Court in the Owners and Partners of the firm named Shah Kanti Lal v. Dominion of India : AIR1954Cal67 . The decisions of the Nagpur High Court in Ramkisaii Jankilal v. Seth Harmukharai Lachminarayan, (S) AIR 1955 Nag 103 (Z21), in Firm Kanhaiyalal Mohanlal v. Paramsukh, AIR 1956 Nag 273 (Z22), of the Punjab High Court in S.S. Saidul Hamid v. Federal Indian Assurance Co. Ltd. New Delhi, AIR 1951 Simla 255 (Z23), and in Firm Radhe Sham Roshan Lal v. Kundan Lal Mohan Lal , also appear to be in consonance with the Mysore view.
71. The only other cases referred to in this connection were the Dominion of India v. Hiralal : AIR1950Cal12 ; Ganguli Engineering Ltd. v. Sushila Bala Dasi : AIR1957Cal103 ; Kamini Kumar Pal v. State of Assam, AIR 1952 Assam 138 (Z27); Surendra Nath Koley v. Milan Mia Laskar, (S) AIR 1955 Assam 12 (Z28); G.S. Santhaji Rao v. B. Chinnayya Sethi : AIR1954Mad1051 ; and Chintamoni Padhan v. Paika Samal : AIR1956Ori136 .
72. The question arising for decision in these cases being different from the one with which we are dealing, it is unnecessary to discuss in detail these cases too. The question which arose for decision in the Calcutta and the Assam cases was somewhat different from the question that has arisen before us. It was whether after the partition of the country in 1947 a Court in Pakistan could transfer a decree for execution to a court in India, and whether the Indian Court was bound to recognise the decree so transferred as valid and executable.
The question was answered in these cases in the negative. In the Madras case the decree had been passed at Banglore in Mysore after the coming into force of the Constitution. It was sought to be questioned on the ground that it had been passed against a non-resident foreigner. The objection was, however, disallowed on the ground that Mysore had become a part of India as a result of the coming into force of the Constitution, the defendant could not claim to have been a foreigner on the date of the decree.
In the Orissa case the question was whether an ex parte decree passed by a court in an Indian State against a non-resident foreigner was a nullity or could be held to be binding after native State had merged in the State of Orissa. It was held that the crucial date with reference to which the question was to be decided was the date of the decree and not the date on which it was sought to be used as evidence, as on that date the court which had passed it was a foreign court, the decree was a nullity.
73. Judicial opinion on the question raised by the appellants in this case is thus conflicting. The balance of authority, however, appears to be in favour of the view contended for by the respondents. The contrary view cannot, in our opinion, be supported on principle. Its basis is the Bombay decision in Bhagwan Shanker's case (Z1), in which an apparently wrong construction was put on the observations of the Privy Council in Gurdayal Singh's case (A).
The case also becomes distinguishable if one bears in mind the distinction between the States which merged with the Indian Dominion and the States which only acceded to it.
74. The result is that the view taken by the learned Single Judge that the decree obtained by the appellant was a nullity and was on that account unexecutable at Allahabad at the time when it was sought to be executed must be held to be correct and be upheld. The execution application of the appellant was, therefore, rightly dismissed and the appeal must fail as without force. It is accordingly dismissed with costs.