J.B. Mehta, J.
1. This revision application raises an interesting question as to whether an ex parte decree passed by a Court in British India could be executed by the Courts in the territory in the Indian States which at the time of execution have merged in the territories of India. This application was originally filed as a second appeal as the appeal against the trial Court's order rejecting the contention of the judgment-debtor that such a decree was a nullity was summarily dismissed by the first appellate Court.
2. The short facts which have given rise to this application are as under :--
The decree-holder, Suresh Bangles Store through the partner L. Chandrabhan had obtained a decree in the Small Cause Court at Agra, against the two Judgment-debtors Laxmandas Damodardas and Laxmidas Damodardas, in Civil Suit No. 488 of 1949. The decree was kept alive and the last execution was applied and disposed of on 27-6-58. The decree-holder thereafter sought execution of the said decree after getting the same transferred to the Court of the Civil Judge (S.D.) at Junagadh by making an Execution Petition No. 183 of 1958 dated 17-9-58. The judgment-debtor No. 2, who is the present petitioner, had in the said execution deposited decretal amount under the protest and had contended that the ex parte decree passed against him on 11-8-49 by the Court at Agra in British India was a decree of a foreign Court and it being an absolute nullity, it could not be executed against the said judgment-debtor, after the formation of the Union of India on the footing that at the time of the present execution Junagadh territory had formed part of the Indian Union. The trial Court negatived the said contention relying upon a Full Bench decision of the Bombay High Court in Bhagwan Shankar v. Rajaram Bapu Vithal, : AIR1951Bom125 , approving the earlier decision in Chunnilal Kasturchand v. Dundappa Damappa : AIR1951Bom190 . The trial Court, therefore, held that even though at the date of the decree viz. 11-8-49 the Agra Court was a foreign Court vis-a-vis the State of Saurashtra in which this Junagadh Court was situate at the time of applying for execution of the said decree, the said Junagadh Court had ceased to be a foreign Court and so it had jurisdiction to execute the decree. The trial Court, therefore, negatived allthe claims and ordered execution of the decree even against the judgment-debtor No. 2, Against the said decision the appeal of the petitioner-judgment-debtor was summarily dismissed by the District Judge at Junagadh. The second appeal Was also summarily dismissed but as the certificate was granted for Letters Patent Appeal, the said appeal was filed. In the said Letters Patent Appeal, the Division Bench consisting of Bhagwati J. (as he then was) and myself allowed the appeal and the matter has been remanded with a direction that the said second appeal which was incompetent should be regarded as a revision application and should be disposed of as such. Accordingly, the said second appeal was converted into a Civil Revision Application and it has now come up before me for disposal,
3. Mr. Hathi contends that the aforesaid Full Bench decision of the Bombay High Court must be considered as impliedly overruled by the decision of the Supreme Court and, therefore, this revision application ought to be allowed. The said two Bombay decisions arose in connection with similar ex parte decrees of British Indian Courts. In the decision in : AIR1951Bom190 , the Division Bench was concerned with the question of exe-cutability of an ex parte decree of the Court of Belgaum in the territory of Jamkhandi State after the said Indian State had merged in the Bombay Province. In the Full Bench decision in : AIR1951Bom125 , however, the ex parte decree was of the Court at Sholapur in British India and was sought to be executed against a non-resident foreigner who was in the foreign territory at Akalkot, which was also a native State area which merged with the Indian Union. In both these decisions the Bombay High Court had interpreted the rule of international law laid down in Sirdar Gurudayal Singh v. Rajah of Faridkote, 21 Ind App 171, at page 185 where Earl of Selborne speaking for the Judicial Committee laid down the following rules
'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.'
These are doctrines laid down by all the leading authorities on international law; and no exception is made to them in favour of the exercise of jurisdiction against a defendant not otherwise subject to it, by the Courts of the country in which the cause of action arose, or in cases of contract by the Courts of locus solutionis. In those cases, as well as alt others, when the action is personal, the Courts of the country in which a defendant resides have power, and they ought to be resorted to, to do justice.' In the aforesaid two Bombay decisions, the aforesaid rule was interpreted to mean as observed by Chagla C. J. speaking for the Full Bench in : AIR1951Bom125 , that such an ex parte decree of a foreign Court was not an absolute nullity, but merely there was an impediment in the way of its being executed because such a decree could be enforced in the forum by which it was passed, provided special local legislation authorised that forum. If, therefore, Section 20 of the Civil Procedure Code authorised the Court to exercise jurisdiction against a non-resident foreigner on the ground that the cause of action arose within the jurisdiction of that Court the decree when passed was a competent decree. Their Lordships further considered that the material time to consider jurisdiction of the Court in passing the decree was the date when the suit was instituted and so Section 20 having empowered the British Indian Courts to pass decree, the decree was not an absolute nullity. If, therefore, at the material date of execution the Indian State in which it was sought to be executed had merged in the Bombay Province and had ceased to be a foreign territory, the judgment-debtor had ceased to be a foreigner and the Court in that Indian State area had ceased to be a foreign Court vis-a-vis British Indian Court as both the Courts were subject to the same common municipal law viz. the Indian Civil Procedure Code. On that basis it was held that the decree could be executed and the question of private international law did not arise at all. It was further held that there was no question of the taking away of any vested right as prejudice has been caused by the Act of the State which altered the status of the Indian State territory and also altered the status of the defendant and made the Court in that Indian State the Municipal Court and made the defendant also a citizen. Even though at the time of the decree, the defendant and the Court concerned were a foreigner and a foreign Court. It is clear from these conclusions reached by the Bombay High Court that the said decisions proceeded on the following premises:--
(1) That the ex parte decree obtained in the British Indian Court against the non-resident foreigner was not an absolute nullity, but it had merely an impediment in the way of its being executed in the foreign territory.
(2) That the material date to be considered was not the date of the decree butthe date when the execution was sought and if on that date impediment in the way of its execution was removed by reason of certain political changes which added the said Indian State territory into the territory of the Union of India, the said decree could be executed.
(3) That there was no question of giving retrospective effect as whatever prejudice has been caused was only by an Act of the State which altered the status both of the foreigner and of the foreign Court and so at the date of the execution. When the impediment in the way of execution disappeared by the merger which was the Act of the State, the decree became capable of execution as at that relevant date of execution the defendant had ceased to be a foreigner and the Foreign Court had ceased to be a foreign Court and both the Courts had become subject to the common municipal law viz, the Civil Procedure Code.
Now, all these premises no longer hold good after the decision of their Lordships of the Supreme Court in Moleji Narsingh Rao v. Shankar Saran AIR 1982 SC 1737. That was a case where an ex parte decree of the Gwalior Court passed on 18-9-48 when Gwalior was an Indian State was transferred by the Gwalior Court by the order dated 14-9-51 for execution to the Court at Allahabad in U. P. Their Lordships of the Supreme Court held that at the time of passing of the decree in November 1948 the Gwalior Court was a Foreign Court within the meaning of the Indian Civil P. C. as it was a Court situated beyond the limits of the provinces which meant the provinces what was the British India and which had no authority in the provinces of British India and was not established or continued by the Central Government. Thereafter their Lordships considered at page 1743 the aforesaid rule laid down by the Privy Council in Gurudayal's case, (1894) 21 Ind App. 171 and held that the respondent not having submitted to the Gwalior Court's jurisdiction the decree Was a nullity outside the territory of the State in which the Court passing the decree was situate and, therefore, on the basis of such a decree no action could be brought in what was British India, the decree being of a Court in an Indian State. At page 1744 their Lordships further observed that the effect of their Lordships' decision in Kishorilal's case : AIR1953SC441 was that the effect of the judgment obtained before the constitutional changes did not change unless there was a specific provision to that effect. Following the aforesaid decision, Wanchoo C, J. (as he then was) in Laxmichand v. Tripuri, held that the crucial date for determining the validity or enforceability ofan order or a decree was the date when it was made. Therefore, if a decree was unenforceable in a particular Court at the time when it was passed, it would not become enforceable and valid simply because of the political changes that took place unless there was a specific provision to the contrary. The Calcutta High Court in Shah Kantilal v. Dominion of India, : AIR1954Cal67 , also held that there was no retrospective effect of the Constitution including its definition of the words, 'Territory of India' which had the effect of converting what was a foreign judgment before the Constitution of India to a domestic judgment after the Constitution. The argument raised against the decree of the Gwalior Court being a nullity and not remaining so after the Constitution must therefore fail. In the next paragraph their Lordships have considered the question as to whether the decree in question which was a valid decree under the Madhya Bharat Code of Civil Procedure had only an impediment to its executability which was removed as a consequence of the constitutional changes and the subsequent amendments of the Indian Code. Repelling this argument their Lordships stated as under :--
'The decree was in the international sense a nullity outside Madhya Bharat even though according to the law in that State it was not so. We have already held that the decree was foreign when It was born in Gwalior and it continued to be so as there was no process or procedure for its becoming a naturalised Indian decree. The decree being a nullity outside the Courts of the United States (Madhya Bharat), in the absence of any specific provision it could not be enforced in the United State (Madhya Bharat). It will not be correct to say that the decree which was a nullity before the Constitution came into force suffered only from the defect of enforceability by execution. Section 13 creates substantive rights and is not merely procedural and therefore defences which were open to the respondents were not taken away by any constitutional changes in the absence of a specific provision to the contrary. It is erroneous to say, therefore, that the decree of the Gwalior Court was unenforceable when passed because of some impediment which the subsequent constitutional changes had removed; but that decree suffered from a more fundamental defect of being a nullity and the rights and liabilities created under it remained unaffected by subsequent changes. That, in our opinion, is the effect of the judgment of this Court in Kishori Lal's case : AIR1953SC441 , See also, Radhesham Roshan Lal v. Kundan Lal Mohanlal, , Where it was held that the right of thejudgment debtor to plead that the decree is a nullity, is not a procedural matter but is a vested right in the judgment-debtor and it cannot be taken away by the provision of law which is not retrospective. The Nagpur High Court in Ramkishan Janakilal v. Harmukhrai Lachminarayan, AIR 1955 Nag 103 also held that a decree by the Indore High Court prior to the Constitution was of a Court without jurisdiction and merely because Indore became a part of the 'Territory of India' after the Constitution did not retrospectively clothe the Court at Indore with jurisdiction in order to make the decree which was a nullity, into a valid decree.'
This reasoning of their Lordships in terms overrules all the premises which were assumed in the aforesaid two decisions by the Bombay High Court. It is settled after these two decisions of their Lordships of the Supreme Court that, the material date in such cases is the date of the passing of the decree. In order to determine the nationality of the decree, the date of the passing of the decree would be material. The second point is settled by their Lordships is that the constitutional changes by which the foreign territory was added in the Indian territory would not have the effect of removing any impediment in the way of execution because the decree when passed being a foreign decree was an absolute nullity before the Constitution and the Constitution having no retrospective operation the nullity remained a nullity and there was no question of removal of any impediment in the way of its execution.
4. It may also be noted that no distinction could be made on the ground that their Lordships of the Supreme Court had to deal with the case of the Gwalior Court Which was clearly a decree of a foreign Court as per the definition of the foreign Court in our Indian Code itself. Their Lordships had in fact based their decision in : 2SCR577 on the basis of the earlier decision in Kishori Lal's case : AIR1953SC441 , which was exactly the reverse case and which had evolved the test that the nationality of the decree must be judged by taking the material date as the date of the passing of the decree and if the decree was unenforceable in the particular foreign Court at the time when it was passed, it would not be enforceable simply because of the political changes that took place unless there was specific provision to the contrary. In their Lordships' view there was no such provision to the contrary either in our Constitution which was never given any retrospective effect including even the definition of the expression 'territory of India' in Article 1(3) of the Constitution or in the various amendments in the Code. At page 1747their Lordships had also considered this question from the point of view of Sections 38, 43 and 44 of the Code. At page 1746 their Lordships held that the Gwalior Court which made the order of transfer in September 1951, when it was governed by the Indian Code was a different Court from what it was at the time it passed the decree when functioning under a different Code of Civil Procedure. The Court which made the order of transfer in September 1951, was thus not the Court which passed the decree within the meaning of Section 39. On a parity of reasoning it was the British Indian Court at Agra which passed the decree against a non-resident foreigner in the Junagadh territory and the then existing Junagadh Court at the time of passing decree was clearly a foreign Court which could not execute the said decree under the Code, then existing if any in the Junagadh territory. As the Constitutional provisions had no retrospective effect the Court in Junagadh territory existing on the date of the transfer in 1958 could not, therefore, execute the said decree as it was not a Court to which the Agra Court, could have transferred its decree for its execution at the time when the decree was made. Their Lordships have also at p. 1748 considered the question of applicability of Sections 43 and 44, which could hardly have any application to the facts of such cases, because Section 43 only applied to those decrees which were passed by the Civil Courts established in parts of India to which the provisions of the Indian Code did not extend, meaning those areas which were set out in Section 1(3) of the Indian Code, while Section 44 as it stood at the Court of execution did not apply to decrees of Civil Courts. Therefore, ultimately, their Lordships came to the conclusion at page 1749 that the decree of the Gwalior Court sought to be executed was a decree of a foreign Court which did not change its nationality in spite of subsequent constitutional changes or amendments in the Code. The Gwalior Court could not transfer the decree for execution to the Court at Allahabad under Sections 38 and 39 nor could the Court of Allahabad execute the decree without such transfer. The provisions of Sections 43 and 44 of the Code also were not applicable to the case. The said decision would completely apply to the facts of the present case as well. Mr Hathi had pointed out that in Gokaldas Naranji v. Dwarkadas, AIR 1954 Sau 123, the Full Bench of the Saurashtra High Court also considered the aforesaid Bombay decision not to be good law. On the same reasoning that the constitutional provisions had no retrospective effect and the British Indian Court's decree could not be treated as a decree passed by the Civil Court in the territoryof India within the meaning of Article 1(3). Finally, Mr. Hathi had relied upon a very well considered judgment of the Full Bench of the Andhra Pradesh High Court in Krishna Murthy v. Venkat Rao AIR 1962 Andh Pra 400, which has also followed the ratio of Wanchoo C. J. (as he then was) in the aforesaid Full Bench decision of the Rajasthan High Court in AIR 1956 Raj 81 which was approved by their Lordships of the Supreme Court. In this decision at page 406 the Full Bench had also considered the question whether it would make any difference if the decree passed was not of the foreign Court but of the British Indian Court and their Lordships observed that if the basis of the non-executability of the decree was its character as on the date on which it was passed, if such a decree was non est and could not become 'positive, effective and legal entity,' at a later stage, the same logic should apply to judgments of Courts in British India. There can be no essential difference in the nature of both the judgments. Their Lordships referred to Section 3(45) of the General Clauses Act and held that it could not alter the situation as it only said that a decree passed by a Court to which the C. P. Code applied could be executed throughout the territory of British India or provinces defined in Section 3(45) of the General Clauses Act or Part A States as denned in the Constitution. That would not take in native States which came to be termed as Part B States after the Constitution. In both the cases, the nature of the judgment was that of a foreign judgment and if they suffered from some defect as want of jurisdiction or otherwise, at a particular time they continued to be subject to that defect. In the aforesaid decision, various decisions have been referred to and it is observed that the weight of judicial opinion was in favour of the view which their Lordships had taken that a judgment in personam pronounced in absentem by a foreign Court against a person who had not submitted himself to the jurisdiction of that Court and which was incapable of execution outside the territorial limits of that Court, was a nullity and if, at the time it was passed, it had no validity as a foreign judgment, it would not acquire new force but continued to be inexecutable even after the advent of the Constitution. Therefore, in view of the aforesaid Supreme Court decision, I am bound to hold that the aforesaid Pull Bench decision of the Bombay High Court is no longer good law and as the trial Court has held the decree to be executable following the said decision, the decree of the trial Court ought to be set aside as it has sought to execute a decree which is non est and an absolute nullity in the international sense.
5. In the result, this Civil Revision Application is allowed and the decree of the lower Court is set aside and the execution application of the judgment-holder is dismissed with costs. Rule accordingly made absolute. There shall, however, be no order as to costs of this Civil Revision Application.