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G.S. Santhaji Rao Vs. B. Chinnayya Sethi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 566 of 1951
Judge
Reported inAIR1954Mad1051; (1954)IIMLJ273
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(5) and 13; Constitution of India - Articles 1, 5 and 161
AppellantG.S. Santhaji Rao
RespondentB. Chinnayya Sethi
Appellant AdvocateG. Venkatarama Sastry, Adv.
Respondent AdvocateD.R. Krishna Rao, Adv.
DispositionAppeal dismissed
Cases ReferredBhagwan Shankar v. Rajaram
Excerpt:
civil - foreign state - sections 2 (5) and 13 of code of civil procedure, 1908 and articles 1, 5 and 161 of constitution of india - suit for recovery of money decreed and was executable in state which comes under sovereignty of british crown - money decree challenged on ground that it cannot be executed in foreign state - by virtue of constitution of india states under sovereignty of british crown were not foreign to state of british india - decree valid and can be executed. - .....under section 47 c. p. c., for dismissal of the execution petition on the ground that the ex parte decree passed by the bangalore court against a non-resident foreigner who did not submit to its jurisdiction was a nullity and therefore inexecutable outside the mysore state. this objection did not find favour with the lower court which thought that the only remedy which the-appellant had was to set aside the decree by appropriate proceedings. in that view the application was dismissed and further execution was ordered. it is that order that is under appeal now.2. mr. venkatarama sastri appearing in support of the appeal challenges the correctness of the decision of the district judge. it is argued by him that the judgment rendered by the bangalore court was a foreign judgment within the.....
Judgment:

Chandra Reddy, J.

1. The second judgment-debtor is the appellant. The respondent brought an action on 6-2-1950 in District Court of Bangalore for recovering a sum of money due to him on dealings. The defendants are residents of Anantapur. None of them appeared in the Bangalore Court to contest the suit with the result that an ex parte decree was obtained on 21-7-1950 for Rs. 19015-7-6 with subsequent interest and costs.

The decree-holder got the decree transferred for execution on 8-1-1951 to the District Court, Anantapur,' within whose jurisdiction the judgment-debtors reside. In the latter Court the execution sought was by way of attachment and sale of immoveable properties of the defendants. Two notices were taken to the Judgment-debtors but they did not choose to appear in Court. The Court held that the service was sufficient and ordered attachment on 5-4-1951. The properties were attached on 22-1-1951 and 24-4-1951 and sale notice was ordered.

At this stage, the appellant filed a petition in the lower Court under Section 47 C. P. C., for dismissal of the execution petition on the ground that the ex parte decree passed by the Bangalore Court against a non-resident foreigner who did not submit to its Jurisdiction was a nullity and therefore inexecutable outside the Mysore State. This objection did not find favour with the lower Court which thought that the only remedy which the-appellant had was to set aside the decree by appropriate proceedings. In that view the application was dismissed and further execution was ordered. It is that order that is under appeal now.

2. Mr. Venkatarama Sastri appearing in support of the appeal challenges the correctness of the decision of the District Judge. It is argued by him that the judgment rendered by the Bangalore Court was a foreign judgment within the meaning of Section 2(5), C. P. C. That being so it is a nullity by the international law and consequently could not be executed outside Mysore State. The foundation of this contention is the definition of a foreign Court as obtaining on the date on which the judgment was entered for the respondent, that Is 21-7-1950.

Section 2(5), C. P. C., as it stood prior to Adaptation of Indian Laws Order, 1837, denned a foreign Court as 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.'

The Adaptation of Indian Laws Order, 1937, omitted the words 'Governor-General in Council' and substituted 'the Central Government or the Crown Representative'. By the Indian Independence (Adaptation of Central Acts and Ordinances) Order of 1948, dated 23-3-1948 the following changes were introduced:

'The words 'or the Crown representative' at the end were omitted and the word 'province' was substituted for 'British India' in the section.' Section 2(5) ran as follows: 'Foreign Courts 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.' On the date on which the Constitution came into force, that is, 26-1-1950, the Adaptation of Laws Order, 1950, was issued. By Section 4(1) of that Order the word 'States' was inserted for the word 'provinces.' By the Civil Procedure Amendment Act 2 of 1951 this section underwent further changes and the section, as amended reads thus: ' 'Foreign Court' means a Court situate outside India and not established or continued by the authority of the Central Government.'

But this amendment was introduced some time after the judgment in question was given. According to the definition in force on the relevant date, a 'foreigri Court' means a Court situate beyond the limits of the States which has no authority in the State and is not established or continued by the Central Government. The 'State' in this context refers only to Part A and Part C States.

What is contended on behalf of the appellant is that Section 2(5) as it stood prior to Amendment Act 2 of 1951 embraced a Court in Part B State as the Court in question has no authority in the State in' which the decree is sought to be executed and cannot also be said to have been established or continued by the Central Government. Indisputably the Courts in Mysore State have no authority in Anantapur District and have not been established by the Central Government. Whether it is continued by the Central Government or not is debatable and it is unnecessary for us 'to express any opinion on this matter as-the appeal can be decided on other grounds.

3. Mr. Venkatarama Sastri called in aid the decisions of the Mysore High Court in -- 'Subbaraya Setty and Sons v. Palani Chetty and Sons', AIR 1952 Mys 69 (A), of the Rajssthan High Court in -- 'Premchand v. Danmal', AIR 1954 Raj 4 (B) and of the Calcutta High Court in --'Firm Shah Kantilal v. Dominion of India', : AIR1954Cal67 (C).

In the Mysore High Court it was ruled that a judgment rendered ex parte by the Subordinate Judge at Coimbatore against a resident of Arsi-kere in Mysore State before it became an Integral part of the Indian Union by virtue of the Constitution which came into force on 26-1-1950 was inexecutable even after that date.

Similarly in the Calcutta case the view taken was that a decree passed by a Court in Baroda. State before it merged with the province of Bombay was a foreign decree within the meaning of the Civil Procedure Code and as such was unenforceable against the defendant who had not submitted to the Jurisdiction of the Baroda Court and that the latter had no authority over the defendant, Dominion of India. To the same effect is the decision of the Rajasthan Court.

4. A different view-was taken by the Bombay High Court in -- 'Chunnilal Kasturchand v. Dundappa Damappa', : AIR1951Bom190 (D). It was held that a decree pronounced by a foreign Court in a personal action 'in absentum' against non-resident foreigner is a nullity and the reciprocity agreements for enforcing decrees of one-Court in another do not debar the defendant to raise such defences as are open to him under Section 13, Civil P. C. Notwithstanding this, such a decree or order could be enforced within the limits of the State in which defendant resides as the relevant date for ascertaining the nature of the decree was the date on which the Court was called upon to pass an order for execution and if at that time the Court had ceased to be foreign court by reason of the merger, the decree could be executed.

This was approved by a Full Bench of that Court in -- 'Bhagwan Shankar v. Rajaram, : AIR1951Bom125 (FB) (E). The 'ratio decidendi' of the latter case was that such a decree was not an absolute nullity in the sense that it could not be enforced at all anywhere but a nullity in a limited sense, namely, that it could not be enforced in Courts other than Courts where it was passed by reason of the private international law and when once the Court that passed the decree had ceased to be a foreign Court by reason of merger or accession of the State in which such a Court was stuate, the impediment in the way of its being executed was removed. The High Courts of Hyderabad. Madhya Bharat and Travancore-Cochin States have accepted this reasoning.

5. It is thus seen that there is diversity of views on this point. However we are relieved of the necessity of making a choice between the two conflicting opinions as those rulings do not touch the point for determination in this case, namely, whether a decree or judgment passed to the Mysore State after its accession to the Indian Union can be said to be foreign Judgment incapable of execution against defendants residing in Anantapur District.

6. Therefore the cases relied on by Mr. Venkatarama Sastri do not afford him any assistance. On the other hand, the observations in them tend to negative the contentions put forward on behalf of the appellant. Emphasis is laid in those cases on the judgment and decrees being passed before the Constitution came into force and all the cases proceed on the assumption that judgments passed after coming into force of the Constitution will not be foreign judgments within the meaning of Civil Procedure Code.

In fact in -- 'AIR 1952 Mys 69 (A)', Venbataramaiya J. has remarked that

'there is no doubt that in view of these constitutional provisions the decree-holder would have had no difficulty to claim and enforce execution notwithstanding the previous decision of this Court if the decree was of a date subsequent to the Constitution.'

7. That it is the correct view is clear from the provisions of Arts. 1 and 5 of the Constitution. Article 1 recites:

'1 (1) India, that is Bhavat, shall be a Union of States.

(2) The States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule.

(3) The territory of India shall comprise

(a) the territories of the States;

(b) the territories specified in Part D of the

First Schedule; and (c) such other territories as may be acquired.'

8. It is thus seen that the Indian States like Mysore which were not parts 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.

9. By virtue of Article 5 of the Constitution every Indian whether he resides in the erstwhile Indian States which did not form part of British India prior to the attainment of the Independence of India and which are now Included in Part B of the First Schedule or in other parts of the country now called Part A or Part C States is a citizen of India. Article 5 has enacted:

'At the commencement of this Constitution every person who has his domicile in the territory of India and

(a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or

(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India.'

10. Therefore persons residing in the present Part A or Part C States can no longer be regarded as non-resident 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.

11. The same result is achieved by the provisions of Article 261 of the Constitution which are in the following words:

'261(1) Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State.

(2) .... ....

(3) 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.'

These two provisions enable a decree-holder, who has obtained a decree in courts of Part B States, to execute his decree within 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 Part B States and vice versa. In these circumstances we hold that the ex parte decree passed by the Bangalore Court can be executed by the Anantapur Court against the appellant. It follows that the decision under appeal has to be upheld, though altogether for a different reason.

12. In the result, the appeal is dismissed with costs.


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