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Variathu Augusthi Vs. Subramonia Iyer Sesha Iyer - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 197 of 1953 (E), from A.S. 424 of 1952
Judge
Reported inAIR1958Ker15
ActsConstitution of India - Articles 1, 5, 261 and 367(3); States (Laws) Act, 1951; Code of Civil Procedure (CPC) , 1908 - Sections 2(5), 13 and 44; Travancore Code of Civil Procedure (CPC) , 1100ME - Sections 2(5)
AppellantVariathu Augusthi
RespondentSubramonia Iyer Sesha Iyer
Appellant Advocate K.K. Mathew, Adv.
Respondent Advocate N.D.P. Nambooripad, Adv.
DispositionAppeal allowed
Cases Referred(G) and Murari Lal Saraf v. Firm Bhagwan Das Gurdyal
Excerpt:
.....court of palghat should be considered a 'foreign court' and that when so considered the decree is incapable of execution by the munsiff's court at perumbavoor on the basis of the well known canon of private inernational law which was summarised as follows in gurdayal singh v. it is thus seen that the indian states like mysore which were not pails of british india and which were under the suzerainty of the british crown have become an integral part of the indian union and have ceased to be foreign states with the coming into force of the constitution most of them having been included in part b of the first schedule......ex parte decree passed by a court in amritsar on 4-6-1951 was not a foreign decree as far as the state courts were concerned even though the definition of the term 'foreign-court' in the code of civil procedure then in force la the state indicated an opposite conclusion:'according to the ordinary canons of interpretation the definition of 'foreign court' in our civil procedure code at the time must be held subservient to the provisions in the constitution of india, namely, article 5 conferring on the state subjects the citizenship of india and clause (3) of article 261 by which final judgments or orders delivered or passed by civil courts in any part of the territory of india are made capable of execution anywhere within that territory. the definition of 'foreign court' contained in.....
Judgment:

M.S. Menon J.

1. This second appeal questions the executability of the ex parte decree in O. S. No. 421 of 1950 of the Munsiff's Court of Palghat in the Court of the District Munsiff at Perumbavoor. The suit was instituted in the Palghat Court on 7-11-1950 and decreed on 3-1-1951. The execution application concerned is E. P. No. 599 of 1951 dated 20-11-1951.

2. The contention of the appellant (defendant) is that the Munsiff's Court of Palghat should be considered a 'foreign Court' and that when so considered the decree is incapable of execution by the Munsiff's Court at Perumbavoor on the basis of the well known canon of Private Inernational Law which was summarised as follows in Gurdayal Singh v. Rajah of Faridkot, 21 Ind App 171 (A) :

'In a personal action ... .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 authorised by special local legislation) in the country of the forum by which it was pronounced.'

3. It is agreed and quite correctly, that the material date is the date of the decree and not theI date on which execution is sought see Vareed v.Gopal Bai Patel. 1954 Ker LT 188: (AIR 1954 Trav-Co 358) (FB) (B). On the date of the decree the Travancore Code of Civil Procedure, 1100 (M.E.), was still in force and Section 2 of that Code defined the expressions 'foreign Court' and 'foreign judgment' as follows :

'(5) 'foreign Court means a Court having no authority in Travancore:

'(6) 'foreign judgment' means the judgment of a foreign Court'.

There can be no doubt that these definitions support the appellant's contention.

4. The Part B States (Laws) Act, 1951, came into force on 1-4-1951 and as a result the Indian Code: of Civil Procedure, 1908, (as amended by Central Act No. II of 1951) was extended to Travancore-Cochin with effect from the said date. The current definition of ''foreign Court' as given on that Code is:

'' 'foreign Court' means a court situate outside India and not established or continued by the authority of the Central Government.'

This definition, however, is unavailable for the decision of this case as it came into force only subsequent to the passing of the decree in O. S. No. 421 of 1950.

5. The only question for consideration, therefore, is whether the element of 'foreignness' which existed prior to 26-1-1950 has disappeared on account of the provisions of the Constitution. According to the learned counsel for the respondent such is the result of Articles 1, 5 and 261.

6. Clauses (1) and (2) of Article 261 read as follows:

'(1) Full faith and credit shall be given throughout tile territory of India to public acts, records and judicial proceedings of the Union and of every State.

(2) The manner in which and the conditions under which the acts, records and proceedings referred to in Clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament.'

These two clauses are modelled on Section 1 of the Federal Article (Article 4) of the American Constitution:

'Full Faith and Credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general Laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.'

7. The relevant Congressional legislation under the Full Faith and Credit Clause is today embraced in Section 687 of Title 28 of the United States Code, which consolidates the Acts of May 26, 1790 and oil March 27, 1804:

'The acts of the Legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affixed thereto. The records and judicial proceedings of the Courts of any State or Territory, or of any such country, shall be proved or admitted in any other Court within the United States, by the attestation of the cleric, and the seal of the Court annexed, if there be a seal, together with a certificate of the Judge, Chief Justice, or Presiding Magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every Court within the United States as they have by law or usage in the Courts of the State from which they are taken.'

According to Professor Corwin, the Supreme Court of the United States did not give full effect to the words:

'the records: and judicial proceedings of the Courts of any State. ......shall have such faith andcredit given to them in every Court within the United States as they have by law or usage in the Courts of the State from which they are taken.'

in the Act of 1790 and an important consequence of the Court's attitude;

'has been the spawn of cases it had bred raising the question whether the judgment for which recognition was being sought under the full faith and credit clause was rendered 'with jurisdiction', i.e., in accordance with some test or standard alleged not to have been observed by the Court rendering it. Foreshadowed in a dissenting opinion in 1813, this doctrine was definitely accepted by the Court in 1850 as to judgments in personam, and in 1874 as to judgments in rem: and in 1878 was transferred from the shadowy realm of 'fundamental principles of justice' to the more solid countours of the 'due process clause' of Amendment XIV.' (The Constitution and what it means Today, Eleventh Edition, p. 1S8)

8. The dissenting opinion of 1813 mentioned in the extract is the opinion of Justice Johnson in Mills v. Duryee, (1813) 7 Cranch 481 (C), wherein he said:

'There are certain eternal principles' of justice which never ought to be dispensed with and which Courts of justice never can dispense with but when compelled by positive statute. One of those is, that jurisdiction cannot be justly exercised by a State over property not within the reach of its process, or over persons not owing them allegiance or- not subjected to their jurisdiction, by being found within their limits.'

9. It is impossible to say that the general words of Clause (1) of Article 261 destroys the element of 'foreignness' as contended by the counsel for the respondent. The American experience is opposed to such a conclusion and it has to be assumed that the framers of the Indian Constitution were fully aware of the American treatment of the Full Faith and Credit Clause and the Congressional legislation that followed it.

10. It has also to he noticed that under Clause (2) of Article 261 the manner of proof and the effect to he given to the acts, records and proceedings referred to in Clause (1) are to be 'as provided by law made by Parliament', and that specific Parliamentary legislation on the subject is still a matter for the future.

11. Clause (3) of Article 261 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.'

According to the counsel for the respondent it is this clause and not Clauses (1) and (2) which is of real assistance to his client.

12. Section 44 of the Indian Code of Civil Procedure, 1908, was in the following terms:

'The Governor-General in Council may by notification in the Gazette of India declare that the decrees of any civil or revenue Courts situate in the territories of any Native Prince or State in alliance with His Majesty and not established or continued by the authority of the Governor-General in Council,or any class of such decrees, may be executed in British India as if they had been passed by the Courts of British India.'

In Veeraraghava Iyer v. Muga Sait, 14 Mad LJ535: (AIR 1915 Mad 486) (FB) (D), the respondent(decree holder) pointed out that a notification had been issued under the section declaring that the decrees of the Cochin Courts may be executed in British India, emphasised the words 'as if they had been passed by the Courts in British India' in Section 44 and contended that the decree which he had obtained in Cochin cannot be impeached on the ground that the judgment Court had no jurisdiction to try the suit. Sundara Iyer, J., said that:

'Section 44 had not the effect of converting a foreign decree into a decree of a British Court butmerely sanctions a new procedure for the enforcement of such a decree. The decree still remains a foreign decree,'

and that:

'The object of Section 44 was merely to provide a more expeditions method of enforcing the judgment of a native State and not to enhance its value or obligatory force.'

The decision of Sundara Iyer, J., was affirmed by a Full Bench of the Madras High Court, 27 MadLJ 535 at p. 556: (AIR 1915 Mad 486 at p. 486)(FB) (D).

13. We take the view that the object of Clause (3) of Article 261 is also the same and that the words shall be capable of execution' only mean that the expeditious method of execution by application, will be available and that there will be no necessity for an action on the judgment of another State.

14. Part II of the Constitution deals with citizenship and Article 5 is the first of the seven Articles in that Part. It is difficult to say that the evolution of a common citizenship by itself has the effect of destroying the element of 'foreignness' and of making the decrees of one State the 'domestic' decrees of the States to which they may be transferred for execution. The substantial basis of a foreign Court's jurisdiction with respect to proceedings in personam is the defendant's presence in or submission tp the foreign jurisdiction. Nationality as a basis of jurisdiction is still uncertain and we are inclined to agree with Cheshire when he says that;

'nationality per se is not a reason which, on any principle recognised by private international law can justify the exercise of jurisdiction.'

15. Article 1 of the Constitution provides that, India shall be 'a Union of' States' and that the territory of India shall comprise 'the territories of the States' and the other territories specified therein. It is impossible to say that the creation of a Union of States in this fashion will by itself destroy the element of 'foreignness' as between the Courts of the federating States. As stated in 1954 Ker LT 188: (AIR 1954 Trav-Co 358) (FB) (B):

'In a federation for all national purposes, erabraced by the federal constitution the State is of course one, united under the same sovereign and authority and governed by the same laws. But in other respects the Siatea are necessarily foreign to and independent of each other and a foreign judgment for purposes of private international law need not necessarily be of a State owing a different allegiance. It is enough if it is the judgment of another independent or unconnected jurisdiction and as to whether it is of an independent or unconnected jurisdiction will have to be decided according to the law in force in the Slate where execution is sought.'

16. As we see it the destruction of the element, of 'foreignness' has been effected not by any specific provision of the Constitution but by the amendments to the Code of Civil Procedure, 1908, made by Act II of 1951 and the extension of that Code to the Part B States by the Part B Stales (Laws) Act, 1951.

17. The learned counsel for the respondent drew our attention to Article 367(3):

'For the purposes of this Constitution 'foreign State' means any State other than India:

Provided that, subject to the provisions of any law made by Parliament, the President may by order declare any State not to be a foreign State for such purposes as may be specified in the order.'

It need hardly be said that such an interpretation clause cannot possibly have any effect en the question before us.

18. In Maloji Rao Narsingh Rao v. Sankar Saran, (S) AIR 1955 All 490 (E). Brij Mohan Lall, J.,quoted the following passage from Ramdayal v.Shankarlal, AIR 1952 Hyd 80 (FB) (F):

'The first thing to be considered in this connection is that due to the accession of this State to the Indian Union there has been a change of status, This State (Hyderabad) is now an integral part of the Indian Union and it is no longer a foreign territory or State. Therefore the question referred to us, viz., 'whether the special Judge's Court of Akola is a foreign Court or a Court of the Hyderabad State' need not be considered in detail as all the Courts of this State have become Courts of the Indian Union, As such the Akola Court being a part of the Indian Union the contention that it is a foreign Court can no longer hold ground,'

and said:

'It is obvious that the learned Judges were labouring under the impression that after 26-1-1950 all Courts in the Indian Union were domestic Courts. This assumption, it may be pointed out with respect, is incorrect. I have pointed out above that, notwithstanding the creation of the Indian Union, Courts in Part B States continued to be foreign Courts till 81-3-1951.'

The earlier passage in the judgment to which reference is made is in the following terms:

'The Courts in Gwalior or Madhya Bharat continued to be foreign Courts notwithstanding the accession of Madhya Bharat to India and notwithstanding the unification of India brought about by the Constitution. In spite of the unification of India and accession of Madhya Bharat to India the Court in Gwalior continued to be a foreign Court and the judgment-debtor's right of immunity from the decree of the Gwalior Court remained intact. It was because of the Code of Civil Procedure (Amendment) Act (2 of 1951), that the Gwalior Court ceased to be a foreign Court.'

19. We are aware that the view taken by us is not in consonance with the view expressed in Santhaji Rao v. Chinnayya Sethi, AIR 1954 Mad 1051 (G) and Murari Lal Saraf v. Firm Bhagwan Das Gurdyal, (S) AIR 1935 J and K 5 (FB) (H). In the Madras case a decree of a Mysore Court passed subsequent to the Constitution and prior to Act II of 1951 was held not to be a foreign decree on the basis of Articles 1, 5 and 261 of the Constitution. Regarding Article 1 the Court said;

'It is thus seen that the Indian States like Mysore which were not pails of British India and which were under the suzerainty of the British Crown have become an integral part of the Indian Union and have ceased to be foreign States with the coming Into force of the Constitution most of them having been included in Part B of the First Schedule.'

regarding Article 5:

'Therefore persons residing in the present Part A or Part C States can no longer be regarded as nonresident foreigners vis-a-vis Part B States. A decree obtained in one part of the country is enforceable in any other part of the country.'

and regarding Article 261 (1) and (3):

'These two provisions enable a decree-holder, who has obtained a decree in Courts of Part B States to execute bis decree with in any part of the Indian Union. Clause (3) makes it incumbent on Part A or C States to give effect to the final judgments or orders delivered or passed by Courts in Fart B States and vice versa.'

20. In (SJ AIR 1955 J and K 5 (FB) (H), the Court held that an ex parte decree passed by a Court in Amritsar on 4-6-1951 was not a foreign decree as far as the State Courts were concerned even though the definition of the term 'foreign-Court' in the Code of Civil Procedure then in force la the State indicated an opposite conclusion:

'According to the ordinary canons of interpretation the definition of 'foreign Court' in our Civil Procedure Code at the time must be held subservient to the provisions in the Constitution of India, namely, Article 5 conferring on the State subjects the citizenship of India and Clause (3) of Article 261 by which final judgments or orders delivered or passed by civil Courts in any part of the territory of India are made capable of execution anywhere within that territory. The definition of 'foreign Court' contained in the Civil P. C. at that time must be to the extent of its repugnancy to the provisions indicated above be held inoperative and of no effect.'

21. In the light of what we have stated in this ludgment we are unable to adopt the conclusion-reached in AIR 1954 Mad 1051 (G) and (S) AIR 1955 J and K 5 (FE) (H). As already stated we take the view that the element of 'foreignness' disappeared only with the extension of the Code of Civil Procedure, 1908, as amended by Act II of 1951 to the State by the Part B States (Laws) Act, 1951, on 1-4-1951. The second appeal has hence to be allowed and is hereby allowed, but in the circumstances of the case without any order as to costs.


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