Govinda Menon, J.
1. The short facts which have given rise to the above appeal are as follow: The first defendant in C.R. No. 172 of 1932 on the file of the High Cout, Rangoon, was a firm of which defendants 2 and 3 were partners and the suit against them was for recovery of a sum of Rs. 48,000 and odd. On 25th May, 1933, after the refusal of the request by the defendants' advocate for an adjournment of the suit, an ex parte decree was passed as prayed for. By E.A. No. 613 of 1933 on the file of the Rangoon High Court the decree was transmitted for execution to the Sub-Court, Devakottai, where it was alleged that the properties of the judgment-debtors were situate. Between 1933 and 1941 three infructuous applications were taken out by the decree-holder but the same were dismissed for various reasons. Thereafter on 6th September, 1944, more than three years of the dismissal of the previous application and the final orders being passed on that, E.P. No. 173 of 1944 was filed for executing the decree by attachment and sale of the properties belonging to the judgment-debtors as a result of which attachment was ordered on 26th March, 1945, effected on 6th April, 1945 and the sale of properties ordered on 19th December, 1945. On 18th December, 1945, the judgment-debtors preferred C.M.A. No. 522 of 1945 against the order of the Subordinate Judge and applied for stay of sale which was granted. On 7th March, 1946, C.M.A. No. 522 of 1945 was withdrawn and dismissed. Subsequently the judgment-debtors filed on 27th August, 1946, E.A. No. 377 of 1946, to strike off E.P. No. 173 of 1944 on the ground that the Court had no jurisdiction to execute the decree any further. This was dismissed on 6th December, 1946. Against that, C.M.A. No. 29 of 1947 was filed in this Court and further proceedings, were stayed. On 28th March, 1947, E.P. No. 173 of 1944 was struck off with the order that the attachment should continue. C.M.A. No. 29 of 1947 was ultimately dismissed on 12th December, 1949.
2. E.P. No. 134 of 1950 dated 14th April, 1950, in the lower Court was a petition to execute the decree in C.R. No. 172 of 1933 by treating that petition as a continuation of E.P. No. 173 of 1944 and to order sale of items of immovable properties over which at the time of striking off of E.P. No. 173 of 1944 attachment was held to continue. The second defendant who contested the application objected to the execution of the decree on the ground that the Court had no jurisdiction to execute it as Section 44-A of the Civil Procedure Code read with the reciprocity agreements has ceased to govern the decree passed by the Rangoon High Court as India and Burma which were once component parts of the erstwhile British Empire have now become sovereign independent Republics and also that execution petition was barred by limitation by reason of the provisions of Section 48 of the Civil Procedure Code. It was further alleged that E.P. No. 134 of 1950 cannot be treated as a continuation of E.P. No. 173 of 1944 which was finally disposed of on 28th March, 1947 arid there was nothing pending in the Court which could be resuscitated or revived. The learned Subordinate Judge formulated three points for consideration and after considering them held that E.P. No. 134 of 1950 was not barred by limitation and therefore execution was ordered to be proceeded with. Aggrieved by that order, the second defendant has preferred the present C.M.A. No. 85 of 1951 pending which he died and his legal representatives have been brought on record as appellants a and 3. Respondents 2 and 3 are respectively defendants 3 and 4 and the contesting first respondent is the plaintiff decree-holder.
3. Various questions of law were raised before us. Mr. B.V. Viswanatha Iyer in an interesting argument placed before us a number of authorities bearing on the points under consideration and we are of the opinion that on one of the points raised by him the appeal has to be allowed. Non-applicability of Section 44-A of the Civil Procedure Code to these proceedings because of the declaration of Burma as an Independent Sovereign Republic on 4th January, 1948 is one of the main questions raised. It is also argued that the application is barred by Section 48 of the Civil Procedure Code and that E.P. No. 134 of 1950 cannot be treated as a continuation of E.P. No. 173 of 1944 deemed to be pending final disposal in the Court of the Subordinate Judge. If we come to the conclusion that on 28th March, 1947 E.P. No. 173 of 1944 was not finally disposed of but was only struck off for statistical purposes or in other words the records were consigned to the record room to be taken out and proceeded with as and when necessity arose, then E.P. No. 134 of 1950 is only intended as a reminder to the Court to bring back, the record consigned to the record room for the time being and to proceed with it on merits.
4. Till 1st April, 1937 the area which is now considered as the Union of Burma, was a part of British India governed as a province by the Governor appointed by the British Crown just like any other province situated in the territory of British India and subject to the laws and regulations passed by the then Imperial Legislative Assembly and under the Authority of the Governor-General-in-Council. At the time of the passing of the Government of India Act, 1935 a similar Act for the Government of Burma was also passed under which India and Burma became two separate units under the British Crown and thereafter there was no community of administration, so far as these two territories were concerned.
5. A further change was effected after the Indian Independence Act of 1947 came into force on 15th August, 1947, when India became a dominion under the British Crown and on the 26th of January, 1950 by the Constitution which governs us to-day India became a sovereign independent republic. On 4th January, 1948, Burma declared its independence and has from that date ceased to be a member of the Commonwealth which recognises the Queen of England as the common link. The result is that the relationship between India and Burma to-day is just like that between any other independent countries either in the East or in the West. Therefore, with respect to decrees passed by the Burmese Courts they are either governed by Section 13 of the Civil Procedure Code relating to foreign, judgments or Section 44-A, Civil Procedure Code, concerning execution of decrees passed by the Courts in the United Kingdom and other reciprocating territories.
6. The history of Section 44-A, Civil Procedure Code, may now be considered. This-section was introduced into the Civil Procedure Code for the first time by Section 2 of Act VIII of 1937 and therefore, till then there was no provision in the Civil Procedure Code by which decrees passed outside India and Burma could be executed in British Indian Courts. By Section 2 of Foreign Judgments (Reciprocal Enforcement) Act, 1933, (23. George the 5th, Chapter 13) a foreign judgment has been defined as a judgment or order, given or made by a Court in any Civil proceedings or a judgment or order given or made by a Court in any criminal procedings for the payment of a sum of money in respect of compensation or damages to an injured party-' There are other provisions in the Act by which foreign judgments could be enforced in the United Kingdom. An order applying that Act to British. India and Burma came into force on November 18, 1938, and was repealed by the Reciprocal Enforcements of Judgments (India) Order, 1953, which came into force on March 1, 1953. This latter order extended Part I of the Act to those territories of the Republic of India which are named in the schedule to the Order. It was after the passing of the Foreign Judgments (Reciprocal Enforcement) Act, 1933, that a similar provision was enacted in the Civil Procedure Code by which Section 44-A was introduced. Section 44-A as it originally stood runs as follows:
(i) Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in District Court, the decree may be executed in British India as if it had been passed by the District Court.
(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent if any to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.
(3) The provisions of Section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of the District Court executing a decree under this section and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in Clause (9)(a) to (f) of Section 13.
Explanation I.- 'Superior Courts' with reference to the United Kingdom means the High Court in England, the Court of Session in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County of Palatine of Lancaster and the Court of Chancery of the County Palatine of Durham.
Explanation II.- 'Reciprocating territory' means any country or territory situated in any part of His Majesty's dominions When the (Central Government) may from time to time by notification in the (official Gazette) declare to be reciprocating territory for the purposes of this section and 'Superior Courts' with reference to any such territory means such Courts as may be specified in the said notification.
Explanation III: 'Decree' with reference to a supeirior Court means any decree or judgment of such Court under which a sum of money is payable not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty and
(a) with reference to superior Courts in the United Kingdom, includes judgments given and decrees made in any Court in appeals against such decrees or judgment, but
(b) in no case includes an arbitration award, even if such award is enforceable as a decree or judgment.
7. After the declaration of independence the following amendments were made:
(a) in Sub-section (1) the words 'the United Kingdom or' shall be omitted;
(b) for Explanations I to III inclusive, the following Explanations shall be substituted namely:
Explantion I: 'Reciprocating territory' means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purpose of this section; and 'superior Courts' with reference to any such territory means such Courts as may be specified in the said notification.
Explanation II: 'Decree with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.'
8. By a notification of the Government of India in the later Home Department No. 286/36 Judicial dated 27th March, 1939, Burma was declared to be reciprocating territory so that decrees passed by Burmese Courts could be executed in India in accordance with the provisions of Section 44-A of the Civil Procedure Code.
9. The declaration of Independence of Burma changed the situation and there was the cancellation of notification regarding Burma as a reciprocating territory, by a notification dated 21st June, 1952 which runs as follows:
S.R.D. 1114: In exercise of the powers conferred by Section 44-A of the Code of Civil Procedure, 1908 (Act V of 1908) the Central Government hereby directs that the notification of the Government of India in the later Home Department No. 286/36 Judicial dated 27th March, 1939, declaring British Burma to be a reciprocating territory for the purpose of the said section shall be cancelled and shall be deemed to have been cancelled with effect from the 4th of January, 1948.
10. By Act LXXI of 1952 in Section 44-A, Civil Procedure Code in Sub-section (1) the words 'the United Kingdom or' have been omitted. For Explanations 1 to 3, two explanations have been substituted. Clauses (2) and (3) of Section 44-A Civil Procedure Code remain as before.
Explanation I: 'Reciprocating territory' means any country or territory outside India which the Central Government may by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and 'Superior Courts' with reference to any such territory, means such Courts as may be specified in the said notification.
Explanation II: 'Decree' with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include on arbitration award, even if such an award is enforceable as a decree or judgment.
11. Foreign Court and foreign judgment are denned in Clauses 5 and 6 of Section 2, Civil Procedure Code in the following terms:
Foreign Court means a Court situate beyond the limits of India and not established or continued by the authority of the Central Government. Foreign judgment means the judgment of a foreign Court. For the purposes of the Constitution, Article 367(3) defines 'Foreign State' as any State other than India.
12. The position, thefore, obtaining in our country after it became a Republic is as follows: A foreign judgment which includes a decree of a foreign Court can be the subject matter of a suit if the same is filed within the period of limitation provided in Article 117 of the Indian Limitation Act and it shall be conclusive as to any matter directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except under the circumstances set out in Clauses (a) to (f) of Section 13, Civil Procedure Code. A party who has obtained a judgment in a foreign Court can, therefore, sue upon it in the Indian Courts and if such a judgment does not contravene any of the six exceptions just now referred to, the same shall be conclusive in a suit but the procedure for obtaining relief should be by way of a suit on the original side and not by way of an application. With regard to decrees of a reciprocating territory contemplated in the Explanation to Section 44-A no suit is necessary but the same can be executed by the application of the provisions of Section 47, Civil Procedure Code. The distinction that has to be borne in mind is that recoprocating territories enjoy greater privilege regarding execution of decrees of their superior Courts in our country than are enjoyed by the non-reciprocating territories. If, therefore, Burma had continued to be a reciprocating territory, the decrees of Burmese Courts could have been as-effectively executed in our country by the application of Section 44-A, Civil Procedure Code just like a decree of any Court in India. So far as Courts of the United Kingdom are concerned, the judgments of those Courts are treated as those of a reciprocating territory as a result of an order under Foreign Judgments (Reciprocal Enforcement) Act, 1933 which came into force on 1st March, 1953 applying Part I of the Act to the territories of the Republic of India which are named in the schedule to the order.
13. The law regarding the enforceability of foreign judgments is discussed in Private International Law by Cheshire (IV edn.) in Chapter XVI where the learned author says that the attitude adopted by English law from the earliest days has been to permit the successful suitor to bring an action in England on a foreign judgment. But during the last century the Courts have changed their view as to the ground upon which this recognition is based. Where as the older cases put it solely upon the ground of comity of nations for such recognition, there has been a change in later years to the doctrine of obligation. This doctrine which was laid down in 1842 is that where a foreign Court of competent jurisdiction has adjudicated a certain sum to be due from one person to another the liability to pay that sum becomes a legal obligation which may be enforced in England by an action and therefore, once the judgment is proved the burden lies upon the defendant to show why he should not perform the obligation. Blackburn, J., in Schibsby v. Westernholz L.R. (1870) 6 Q.B.C. 155 laid down the law in the following terms:
The judgment of a Court of competent jurisdiction over the defendant imposes a duty or obligation on him to pay the sum for which the judgment is given which the Courts in this Country are bound to enforce. In other words a new right has been vested in the creditor and a new obligation imposed upon the debtor at the instance of the foreign Court.
Cheshire discusses the doctrine of obligation in great detail at pages 587 to 589. It is pointed out that in the case of a foreign judgment there is no merger of the cause of action as in the case of a decision of a municipal Court for in such a case the cause of action is merged in the judgment (transit in rem judication). But this is not so in the case of a foreign judgment where the plaintiff has his option either to resort to the original ground of action or to sue on the judgment to recover provided, of course, that the judgment has not been satisfied. This was the law based upon the comity of nations as understood in Private International Law but at present in England the direct enforcement of foreign judgments is allowed under the various Acts beginning with Judgments Extension Act, 1868, and ending with Foreign Judgments Reciprocal Enforcement Act, 1933.
14. In Yokon Consolidated Gold Corporation v. Clark (1938) 2 Q.B. 241 , Greer, L.J., stated thus:
It was fully appreciated by those who thought about foreign judgments that British judgments were never enforced as of right in foreign Courts and that was believed and rightly believed to operate as an injustice to this country. Whereas we enforce foreign judgments by means of an action in this country foreign countries refuse to enforce the judgments obtained in this country and it was to deal with that situation that the Act of 1933 was passed but incidentally it also dealt with Dominion Judgments registered under the Act.
15. A system of registration was introduced not only with respect to judgments of foreign countries but with respect to British Dominions as well. It is unnecessary to quote in extenso the discussion of it at pages 592 to 596. The result is that a judgment registered in England under the Act is for the purposes of execution of the same force and effect and as if it had been obtained in the registering Court and subject to the same control and jurisdiction. This is a great developement on the Acts of 1860 and 1920. It was after this, that Section 44-A, Civil Procedure Code, was introduced in the Civil Procedure Code which with the later amendments making it suitable to the present conditions of the country defines the law for the time being regarding execution.
16. It is useful to refer to other text books where the same matter is discussed. Chapter XVI of Dicey's Conflict of Laws (VI edition) deals with the effect of foreign judgments. Rule 90 deals with Part I of the Foreign Judgments Reciprocal Enforcement Act, 1933. In his book 'Recognition and enforcement of Foreign Judgments in the Common Law Units of the British Commonwealth ' by H.E. Read, in Chapter II the learned authority makes a comparative study of the basis on which foreign judgments were recognised in the British Commonwealth at law, beginning with the conception of comity of nations. The development of the present system is considered at page 299 and the effect of Foreign Judgments (Reciprocal Enforcement) Act, 1933 is dealt with at page 299-300:
Reference has already been made to the momentous Foreign Judgments (Reciprocal Enforcement) Act, 1933 in relation to its jurisdictional provisions and its failure to affect explicitly the non-merger doctrine. The Act provides for reciprocal direct enforcement of money judgments of politically foreign countries as well as those of British dominions, colonies, protectorates and mandated territories. It has supplanted the Administration of Justice Act, 1920 as to protectorates and mandatories now already operating under the 1920 Act and provides that any dominion, colony, protectorate or mandatory now operating under the 1920 Act which is henceforth brought within the new statute shall forthwith cease to so operate. As a consequence, the Act of 1920 will likely in time be completely superseded. An order for registration may be secured by application to the proper Court within six years of the date of the judgment or after the date of the last appeal therefrom unless it has been wholly satisfied or could not be enforced by execution in the country of the original Court. Resistance to enforcement is made by a motion subsequent to registration to have registration set aside. Registration must be set aside if the judgment is not one to which the Act applies or if certain specified facts are established, all of which would constitute good defences at common law to an action upon a foreign judgment. The Court has discretion to set aside a registration if it is established that the issue upon the adjudication of which the registered judgment was rendered was already res judicata in another law district at the time at which it was rendered. Execution is to be in the the mode prescribed for its own judgments by the Court of registration.
We may also refer to Seton's Judgments and Orders, Vol. I, pages 723-724 and 1523 to 1525; Graveson, The Conflict of Laws (Second edition) Ch. 19, p. 417 and foll.; Wolff, Private International Law, Section 250, p. 275-278; Sir W.H. Rattigan, Private International Law, Ch. VII, p. 219 and foil, (with special reference to India).
17. As has already been remarked Burma ceased to be a reciprocating territory as a result of the cancellation of the notification declaring British Burma to be a reciprocating territory on 21st June, 1952 with effect from 4th January, 1948 and therefore Section 44-A, Civil Procedure Code is no longer applicable to the execution of any decree passed by the Burmese Courts. The only other method by which a successful party in a foreign judgment obtained in a Burmese Court can realise the Fruits of his judgment is to sue upon such a judgment within the period allowed under Article 117 of the Limitation Act in which case the judgment will be conclusive only if the requisites contained in Sub-clauses (a) to (f) of Section 13, Civil Procedure Code are fully complied with. If it is proved that any of these conditions is not fulfilled, the result will be that the judgment will not be conclusive and there is no merging of the cause of action in the decree. It has been held in Keymer v. Visvanathatham Reddi , by the Privy Council that where a defence has been struck off on the failure to answer the interrogatories and a decree has been passed pursuant to the striking off of the defence it is not one given on the merits and cannot therefore, be executed in the English Courts. The procedure in England under the Reciprocal Arrangements Act is for registration of decree whereas in Indian Courts it is by application of the provisions of Section 44-A, Civil Procedure Code with the concomitant attraction of the provisions of the Limitation Act. A decree of a reciprocating territory has in it all the elements of a decree of an Indian Court with its advantages and liabilities; In these circumstances, if E.P. No. 173 of 1944 had been filed subsequent to 4th January, 1948, Section 44-A Civil Procedure Code cannot apply and the Subordinate Judge, Devakottah, has no jurisdiction to execute the decree for the reason that the reciprocity arrangement had ceased to exist from 4th January, 1948. The only remedy, if there be, is to sue upon a foreign judgment under Section 13, Civil Procedure Code, within the period provided under Article 117 of the Limitation Act provided the terms of the section are fully satisfied. There is no suit of this kind and we are not concerned with any such question here. The scope and effect to be given to foreign judgments before the enactment of Section 44-A, Civil Procedure Code had been the subject of various decisions, chief of which is Keymer v. Viswanatham Reddi . The other cases are : Chor Malbal Chand v. Kasturi Chand Seraogi I.L.R.(1936) Cal. 1033, Visvanathan v. Abdul Wajid (1953) 67 L.W. 147, Panchapakesa Iyer v. Muhammad Rowther (1933) 66 M.L.J. 209, and Rama Shenoi v. Hallagna (1917) 34 M.L.J. 295 : I.L.R. Mad. 205.
18. To reiterate if any foreign country establishes reciprocity in the matter of execution of decrees of that country by laws enacted there, Indian Courts will do likewise by applying Section 44-A, Civil Procedure Code, but if there is no arrangement establishing reciprocity, our Courts cannot apply Section 44-A so that a suitor who has obtained a judgment in a foreign Court with which there are no such reciprocal relationships can only sue under Section 13, Civil Procedure Code, by fulfilling the conditions enumerated therein. Until 1947 when India was a part of the British Empire, the enforcement of foreign judgments was conditioned upon the pattern of legislative enactments and orders in council prevalent in the United Kingdom and as such Section 44-A, Civil Procedure Code is an embodiment in the Indian Statute book of the existing laws in England. To day, therefore, a judgment of a Burmese Court can have no greater status or validity in the Courts of the Indian Union than probably the one passed by a Court in Johanesberg, Pretoria or Beunos Aires.
19. Incidentally it may be pointed out that the doctrine regarding the enforceability of foreign judgments has received considerable attention and has become the subject of serious consideration in American Courts and it is useful to refer to them by way of analogy especially since in many respects, Section 44-A, Civil Procedure Code can be said to be a succinct enactment of the principles obtaining in all the countries where Angle-Saxon Jurisprudence prevails. At pages 1163-1165 of Vol. 34 of 'Corpus Juris' there is a complete and systematic statement of the whole body of the law as embodied in and developed by all reported decisions of the American Courts. In Article 1651 dealing with judgments in personam and their operation and effect the law is stated thus:
A foreign judgment is of no effect outside of the country wherein it is rendered. The duty to recognize the validity and effect of such a judgment rests on comity, or on the ground of a legal obligation arising from the judgment to pay the debt which it adjudges. By this rule of the comity the same force and effect will be given to the judgments of a foreign country, when sued on in the Courts of the United States, as that country gives to judgments of our Courts when sued on there, the basis of such comity being reciprocity. That they should be given any greater effect is not required, but the domestic Court may do so if it likes. Such a judgment is not executory here in the sense of authorizing the issue of final process or of creating a lien on real property, although it may give the creditor a sufficient standing to maintain a suit to set aside fraudulent conveyances; but it constitutes a good cause of action on which a suit may be maintained. The preponderance of authority supports the view that such a judgment in favour of plaintiff does not merge the original cause of action, and is no bar to a subsequent action thereon, unless such judgment has been satisfied. But a contrary doctrine has been asserted in some states. If the foreign judgment was for defendant, it will bar a new suit against him in this country on the same demand.
Various authorities are quoted for the proposition that except on the basis of reciprocity the judgment of a foreign Court cannot be executed in the United States of America, e.g. Hilton v. Gyyott 113 U.S. 16 : 40 L. Ed. 95, and Ritche v. Mc. Mullen 159 U.S. 235 : 40 L. Ed. 133. It is not necessary to refer to decisions of Courts other than the Supreme Court of the United States of America in this connection. With regard to recognition of foreign judgments under the doctrine of comity it is useful to refer to article 531 of Vol. 31 of American Jurisprudence:
No sovereign is bound in the absence of a special compact, to give effect within its dominions, to a judgment rendered by the tribunals of another country; it is at liberty to give or refuse effect to it, as may be found just and equitable, but the general comity, utility and convenience of nations have established a usage among civilized states by which the final judgments of foreign Courts of competent jurisdiction are reciprocally carried into effect under certain regulations and restrictions which differ in different countries. Thus, judgments of Courts of foreign countries are recognised in the United States because of comity due from one nation to another, its Courts and judgments. Such recognition is granted to judgments rendered by Courts of other nations with due regard to international duty and convenience, on the one hand and to rights of citizens of the United States and others under the protection of its laws, on the other hand. However, the policy of extending recognition to a judgment of a foreign country may be regulated in accordance with settled traditions and concepts of what is wise and expedient.
20. See also Story's Conflict of Laws (Eighth edn.) Ch. XV p. 808 and foll.).
21. Section 1 of Article 4 of the Constitution of the United States provides that
full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.
A similar provision has been enacted in our Constitution in Article 261.
22. Our conclusion, therefore, is that any judgment or decree obtained in a Burmese Court cannot be executed in the Courts of the Indian Union under the provisions of Section 44-A of Civil Procedure Code. But it is argued that the decree in C.R. No. 172 of 1932 on the file of the Rangoon High Court had been transferred for execution to the Devakottah Sub-Court long before Burma was declared a republic and when once the transfer takes place a vested right is conferred on the decree-holder to execute the decree irrespective of the happening of subsequent events or change in the international or constitutional relationships. In support of this argument certain observations of the Federal Court in Venugopala Reddiar v. Krishnaswami Reddiar (1943) 2 M.L.J. 57, to the effect that during the time Burma remained a part of British India it was permissible under Section 17, Civil Procedure Code, to include immovable properties situate in Burma as part of the subject matter of a suit instituted in any other province and therefore in regard to a suit instituted in a Court in the Madras Presidency before the separation of Burma on 1st April, 1937, the right to continue the suit had not been taken away by the Government of India and Burma Act, 1935 and that the Court in the Madras Presidency had jurisdiction to try the suit even as regards-immovable properties situate in Burma were relied upon. Section 6 of the General Clauses Act laying down that the repeal of a statute should not affect vested rights as well as the decisions in Kaunsilla v. Ishri Singh I.L.R.(1910) All. 499, and United Provinces v. Mst. Atiqa Begum (1941) 1 M.L.J. 65 , were cited in support of the proposition. None of these authorities deal with execution of foreign judgments and with regard to the observations in Venugopala Reddiar v. Krishnaswami Reddiar (1943) 2 M.L.J. 57, their Lordships have held that if there had been no express prohibition against the continuance of pending proceedings to their normal conclusions either in the Government of India Act, 1935 or in the Government of Burma Act, 1935, both of which were passed by the Parliament of Great Britain dealing with the erstwhile possessions in the British Empire the inference is that pending proceedings have to reach their normal termination. The observations of Varadachariar, J., in Giridhari Lal v. Kappini Gowder : AIR1938Mad688 to which our attention has been invited shows that a right of suit, a right of appeal and a right of distraint are all remedies for the enforcement of a right and that they are substantive rights though remedial in nature. But there is no discussion to the effect that a right of execution is such a substantive right. On the other hand a distinction between rules of law which in any way impair or destroy those rights and those which a litigant has to comply with for availing himself of those remedial rights show by contrast that a right to execute is not a susbtantive one. The Judgment of Basheer Ahmed Sayeed, J., in C.M.A. No. 107 of 1949 deals with conditions that existed before the cancellation of the reciprocal rights, and, therefore cannot be of any assistance to decide the question at issue. On the other had there are authoritative pronouncements, observations of judges and opinions of text book writers, that there is no vetted right in procedure. See Maxwell's Interpretation of Statutes (10th edition, by Gilbert, H. B. Jackson) page 232 and the decisions in Papasastrial v. Ananta Rama Sastrial I.L.R.(1980) Mad. 98, Syed Savai Rowther v. The Tahsildar, Periakulam (1895) 6 M.L.J. 122, and Bisseswar Sonamut v. Jasoda Lal Choadhry I.L.R.(1913) Cal. 704.
23. Further more it has to be observed that with regard to execution of decrees the question of jurisdiction has to be approached from the view point of the time when the execution takes place and not when the application is made. See the discussion in Mulla's Civil Procedure Code (12th edition) pages 162 and 163 regarding the cessation of jurisdiction of the Courts which passed the decree and also the decisions in Beharani v. Raghubehara : (1939)1MLJ340 , and Rama Iyer v. Muthukrishna Iyer : (1932)62MLJ687 .
24. Rajadhyaksha, J., in Chunilal v. Dundappa : AIR1951Bom190 had to consider a case where an ex parte decree passed by a British Indian Court against a subject of an Indian State-was transferred for execution to that Indian State under Section 44, Civil Procedure Code and the execution petition was dismissed on 10th March, 1948 on the grounds, mentioned in Section 13(a), Civil Procedure Code. On 8th March, 1948, the governance of that Indian State had been seceded to the Indian Union and subsequently on 27th July, 1949 that State had become completely merged with the State of Bombay. When the decree-holder appealed against the dismissal of his execution petition it was held that the relevant date for ascertaining the nature of the decree was not the date of filing of execution but the date on which the Court was called upon to pass an order for execution. Such being the case when the Native State had ceased to be a foreign territory the decree was executable in a Bombay Court. This case is direct authority for holding that the state of things prevailing at the time of execution is the deciding factor and not the filing of the application for execution. This decision was followed in Moosa Kutty Hajee v. Pylotu Joseph A.I.R. 1952 Trav. Co. 89, where the learned judge held that the point of time that has to be regarded in considering the question of executability is not the time at which the decree was passed but the time when it is sought to be executed because notwithstanding the existence of any obstacle to execution at the time the decree was passed if that obstacle is removed by the time the execution of the decree is sought that obstacle cannot operate as it is only its continued existence that can stand in the way of execution.
25. In Dominion of India v. Hiralal : AIR1950Cal12 , the decree that was sought to be executed by the Small Causes Court, Calcutta, had been passed by Jamalpur Court on 15th May, 1947 when that Court was within the territory of India. At the time when the execution petition was filed, Jamalpur had become part of Pakistan. In these circumstances the Calcutta High Court held that after 15th August, 1947 Jamalpur which was part of British India before that date became a foreign Court and its decree cannot be executed unless there was reciprocity and since Pakistan was not a reciprocating territory at that time the application for execution cannot be maintained. A somewhat contrary view is sought to be inferred from the judgment of the same judges, Mookerjee and Chunder, JJ., Nareshchandra v. Sachindra Nath : AIR1950Cal8 , but we do not think that such an inference is possible.
26. The decision in Dominion of India v. Hiralal : AIR1950Cal12 , was accepted as good law by Raghava Rao, J., in Golden Knitting Co. v. Mural Traders : AIR1950Mad293 . In Dalel Singh v. Dhan Devi A.I.R. 1953 P. 24, the learned Judge followed the view taken by the Bombay High Court in Bhaghauan v. Raja Ram : AIR1951Bom125 , and in Chunilal v. Dundappa : AIR1951Bom190 for holding that a decree passed by a former High Court of Nabha can be executed in Punjab after 1950, since Nabha has ceased to be a foreign territory by its merger in the Indian Union and therefore the state of affairs at the time of execution of the decree has to be taken into consideration. The principle enunciated in Dominion of India v. Hiralal2, has found favour in Surendra Nath v. Milan Mia A.I.R. 1955 Guahaty12.
27. A contrary view seems to be prevailing in the High Court of Mysore as is seen from the decision in Subbaraya Chetty & Sons v. Palani Chetty and Sons A.I.R. 1952 Mys. 69, in which the learned Judges did not hold that a decree passed in a Court in the Madras Presidency before Mysore became a part of the Indian Union does not cease to be a decree of a foreign Court even after Mysore became a part of the Indian Union. It was held that decrees which were in executable as those of a Court in a foreign State according to the law then in force upto the date of the Constitution have not ceased to be so on account of the changes introduced by the Constitution with respect to statutes or in the definition of 'Foreign State' or territory of India. The date of the decree and not the date of the application for execution is material to decide the question of executability. We need hardly add that this view is opposed to the conclusion arrived at in the cases referred to above. The Travancore-Cochin High Court in Vareed v. Gopal Bai A.I.R. 1954 Trav. Co. 358, came to the conclusion that the introduction of common citizenship after the inauguration of the Constitution on 26th January, 1950 did not give jurisdiction to Travancore-Cochin Courts to execute a decree that was passed on 24th October, 1949, by a Court in the Madras Presidency on the basis of nationality because even if nationality was an acceptable basis of jurisdiction it was necessary that the defendant was a subject of the country in which the decree was passed at the time of the decree and not subsequent thereto. Here again the concept is that executability depends upon the state of circumstances when the decree is passed and not at the time of its execution.
28. In our opinion the more acceptable and better view seems to be that in Dominion of India v. Hiralal A.I.R. 150 Cal. 12, and Bhagvan v. Rajaram : AIR1951Bom125 .
29. The question of executablity of a decree passed by the Subordinate Judge of Devakottah before Section 44-A was introduced into the Civil Procedure Code came up for consideration in the Rangoon High Court before Baguley and Mosely, JJ., in Muthukaruppan v. Sellami Achi A.I.R. 1938 Rang. 385. The facts of the case show that a decree passed by the Subordinate Judge, Devakottah in 1936 was transferred for execution to the Additional District Judge, Henzada, Burma, on 17th October, 1936. An application for execution of the decree was made on 19th May, 1937, that is, after the separation of Burma and the date of the receipt was 29th October, 1936. The application for execution was made on 19th May, 1937 that is, after the separation of Burma which took place on the first of April, 1937 and under those circumstances, the learned Judges took the view that the application for execution having been made after the separation of Burma, the decree of the Devakottah Court became a foreign decree and as such the Courts in Burma had no jurisdiction to execute it. They also held that Section 10 of the Government of Burma Adaptation of Laws Order of 1937 did not apply as it referred to substantive rights acquirred and not to mere matters of procedure.
30. To sum up, the right of executability in a partitular manner is a procedural right and not a substantive one like the right to collect the money under the decree. We do not see any reason why Courts in our country should take a different view especially since the view taken by the Rangoon High Court is that Indian decrees after separation of Burma should be considered as foreign decrees. No distinction can be made in the case of pending execution applications as the rule of procedure should be that obtaining on the date on which the remedy is sought to be enforced. See Craies on Statute Law (5th edition) page 370 as well as the decision in Radheyshiam v. Firm Sawai Modi . The decision of the Privy Council in Gurdyal Singh v. Raja of Faridkot , contains principles similar to those we have to decide in the present case.
31. Learned Counsel for the respondent then urged that E.P. No. 134 of 1950 should be deemed to be a continuation of E.P. No. 173 of 1944 so that what the Court was doing was only completing what has been partly executed. Such an application cannot be a continuation of the previous execution petition in accordance with the tests laid down in Maharaj Bahadur Singh v. A.H. Forbes (1929) 57 M.L.J. 184 : 33 C.W.N. 977 . The tests for finding out whether a previous execution petition is pending have been elaborately dealt with in that decision and according to those tests it is not possible to say that E.P. No. 134 of 1950 was a continuation of E.P. No. 173 of 1944. In addition to this, there is the fact, as noted by the learned Subordinate Judge in paragraph 22 of his judgment, that it was conceded before him that E.P. No. 134 of 1950 which had been struck off for statistical purposes after continuing the attachment without any final order being passed thereon was not a contention. We are not inclined to agree that E.P. No. 134 of 1950 is a continuation of E.P. No. 173 of 1944 on account of the concession made but it does not matter even if E.P. No. 134 of 1950 is a continuation of E.P. No 173 of 1944 for the reason that at the time of execution reciprocal arrangements had ceased to exist between Burma and India.
32. We have, therefore, come to the conclusion that no execution is possible of any decree of a Burmese Court after 4th January, 1948, when Burma became a Republic even if any decree of a Burmese Court had been pending in any Indian Court in execution.
33. Respendent's counsel eventually sought to argue that at the time the decree in C.R. No. 172 of 1932 of the Rangoon High Court was passed it was that of an Indian Court and not a foreign Court and hence it does not cease to be that of an Indian Court even after Burma became separate. We are unable to accept this contention. We are also not inclined to accede to the arguments of the learned Counsel for the respondents that the appellant consented and acquiesced in the jurisdiction of the Devakottah Sub-Court to execute the decree of the Rangoon High Court. Even if there had been any such acquiescence it has been held by the Privy Council in Ledgard v. Bull , that that would not give any jurisdiction if the Court does not, otherwise, have jurisdiction.
34. In the result it has to be held that E.P. No. 134 of 1950 is not maintainable and therefore reversing the decision of the lower Court we dismiss the same with costs throughout.
35. C.M.A. No. 352 of 1951.- The learned Subordinate Judge has dismissed E.P. No. 136 of 1950 on the ground that the same is barred by limitation. We have not been shown any reasons that would make us dissent from the view taken by the lower Court. This Civil Miscellaneous Appeal is, therefore, dismissed with costs.
36. Appeals Nos. 908 and 909 of 1952.- We have held that the Devakottah Sub-Court has no jurisdiction to execute the decree because the suits out of which those appeals arise were for setting aside the claim orders passed in execution of that decree. The lower Court has upheld the claim and dismissed those suits. If, as we have held that the decree of the Rangoon High Court itself is not executable the claim has to be sustained. Hence these appeals are dismissed but in the circumstances with half costs.
37. For the reasons given in our judgment in C.M.A. No. 85 of 1951, C.M.A. No. 177 of 1952 has to be allowed but without costs.