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Dominion of India Vs. Hiralal Bothra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberCivil Rule No. 1501 of 1948
Judge
Reported inAIR1950Cal12
ActsCode of Civil Procedure (CPC) , 1908 - Sections 13, 37, 38, 39, 44 and 44A; ;Adaptation of Existing Indian Laws Order, 1947
AppellantDominion of India
RespondentHiralal Bothra
Appellant AdvocateBhabash Narayan Bose, Adv.
Respondent AdvocateSushil Chandra Dutta, Adv.
Cases ReferredSee Naresh Chandra Bose v. Sachindra Nath Deb
Excerpt:
- .....pakistan within the province of east bengal, and the court of small causes, calcutta, within the indian dominion.4. section 18(3), indian independence act provides :'save as otherwise expressly provided in this act, the law of british india and of the several parts thereof existing immediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new dominions and the several parts thereof until other provision is made by laws of the legislature of the dominion in question or by any other legislature or other authority having power in that behalf.'5. sub-sections (1) and (2), section 2, indian independence act describe the respective territories of the two new dominions. sub-section (1) of section 9 further.....
Judgment:

R.P. Mookerjee, J.

1. The decree-holder opposite party obtained a decree on 15th May 1947, from the Court of Munsif, Jamalpur, within the district of Mymensingh, against 'The Governor-General of India in Council, New Delhi and B. A. Railway, having its Head Office at 3 Koilaghat Street, Calcutta.' The nature of particulars of the claim on which the decree was passed cannot be ascertained from the records. On 8th December 1947, the decree-holder applied to the Court of Munsif, Jamalpur, under Order 21 Rule 6, Civil P. C., for a certificate of non-satisfaction, A certificate was issued accordingly and a copy o! the order was, as applied for by the decree, holder, directed by the Munsif at Jamalpur to be sent to the Registrar, Court of Small Causes, Calcutta with a copy of the decree. This order was passed in Money Execution Case No. 86 of 1947. On 13th March 1948, the decree-holder opposite party filed in the Court of Small Causes, Calcutta, an application for execution of the decree so transferred. Execution was prayed for against the parties as described in the decree and stated already. Objection was raised on behalf of the Dominion of India as to the maintainability of the execution proceedings in the Court of Small Causes, Calcutta and as against this Dominion. The learned Judge having overruled the said objections, the Dominion of India has moved this Court in revision.

2. Under the Indian Independence Act, 1947, 15th August 1947 was the appointed day and as from that date two new independent Dominions, known respectively as India and Pakistan were set up, No proceedings were pending on that day either in the Jamalpur Court or in the Court of Small Causes, Calcutta. Accordingly, the only question, so far as affecting the jurisdiction of the Court of Small Causes, is whether after the appointed day it is competent for the Calcutta Court to entertain an application for starting proceedings in execution of a decree which had been passed by the Jamalpur Court before the appointed day. Had there been proceedings pending either in the High Court or in the Court of Small Causes, Calcutta on 15th August 1947, the legal position would have been altogether different : See Naresh Chandra Bose v. Sachindra Nath Deb, Appeal from Original Decree No. 111 of 1947 decided on 24th January 1949 : : AIR1950Cal8 .

3. Whether the decree in question can be executed in the Court of Small Causes, depends principally on an adjudication as to whether from after the appointed day that decree is to be considered as one passed by a domestic Court or by a foreign one. Before we refer to the relevant provisions of the Code of Civil Procedure, it is necessary to point out that before 15th August 1947, both the Jamalpore Court and the Court of Small Causes, Calcutta, were Courts in British India. As such a decree passed by one of them could not then be considered by the other to be a foreign judgment. The Indian Independence Act, 1947, having brought into existence two separate and independent dominions, the Court of Jamalpore is now situate in Pakistan within the Province of East Bengal, and the Court of Small Causes, Calcutta, within the Indian Dominion.

4. Section 18(3), Indian Independence Act provides :

'Save as otherwise expressly provided in this Act, the law of British India and of the several parts thereof existing immediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf.'

5. Sub-sections (1) and (2), Section 2, Indian Independence Act describe the respective territories of the two new Dominions. Sub-section (1) of Section 9 further authorises the Governor-General to issue orders for bringing the provisions of the Indian Independence Act into effective operation and for removing difficulties arising in connection with the transition to the provisions of the said Act. Under powers so reserved, two Adaptation Orders were issued--the India (Adaptation of Existing Indian Laws) Order, 1947, and the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947. The two Adaptation Orders indicate the changes which are to be introduced in all existing laws which were in force on 15th August 1947 one adapting the laws so far as the Dominion of India was concerned and the other for Pakistan.

6. Section 18 (3), Indian Independence Act, read with the particular Adaptation Order, ap. plicable in India and Pakistan as the case may be, determines what changes are necessary in the 'existing Indian Law' and 'existing Pakistan Law.' The existing laws for the particular Dominion with the adaptations indicated in the two Orders above mentioned are in force from after 15th August 1947, not as they were in force throughout British India before 15th August 1947.

7. The Code of Civil Procedure which was in force in British India upto the appointed day became enforceable thereafter in the two Dominions with the respective modifications and adaptations. For all practical purposes, there are two different Codes in existence, as from after the appointed day, applicable to the two separate and new Dominions.

8. The learned Judge of the Court of Small Causes, Calcutta was not, therefore, correct in stating that under the provisions of India (Adaptation of Existing Indian Laws) Order laws which were in force in British India became applicable to both the Dominions or that the old Civil Procedure Code as such is still in force in both the Dominions. It was probably overlooked by the lower Court that there was a separate Pakistan Adaptation Order as there was for the Indian Dominion an Adaptation Order of existing laws. The adaptations made for the two Dominions unmistakably indicate the changes and adaptations are not in terms exactly the same for the two Dominions.

9. I may indicate in passing that after 15th August 1947, the Code of Civil Procedure had been further amended either by the relevant Legislature or by any other competent authority, such amendments being applicable to and within the respective Dominion. One of such further adaptations in Pakistan was by the Adaptation of Central Acts and Ordinances Order 1949, published in the Gazette of Pakistan on 28th March 1949, The Indian Legislature also has amended the Code of Civil Procedure after the appointed day (as in Act VI [6] of 19i8) to have effect in this Dominion.

10. To illustrate the divergent effects by the two Adaptation Orders of 1947, as made by the Governor-General under Sub-section (3) of Section 18, Indian Independence Act, we may refer to two only of the various provisions contained in the Code of Civil Procedure, those sections being relevant for the present purpose.

11. Section 1(3), Civil P. C., determines the extent of the application of the Code. The Code of Civil Procedure, as adapted for the Indian Dominion, now extends under Section 1(3) 'to all the provinces of India' on the other hand the Code as adapted in 1947 for Pakistan extends 'to all the provinces of Pakistan.'

12. Clause 4 (1), Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947, further provides :

'Where an existing Pakistan law contains a provision defining the territories to which the law extends, or a provision referring to the territories which are within the scope of that provision, that provision shall be so adapted as to exclude any territories which on the appointed date are not to form part of the territories of Pakistan.'

13. By Clause 4, Adaptation of Central Acts and Ordinances Order, 1949, it is further provided that in all Central Acts and Ordinances, whether specified in the schedule to that order or not, to the expression 'all the provinces' when it refers to all the provinces of Pakistan, shall be added the words 'and the Capital of the Federation.' The provisions of this subsequent order are to have effect notwithstanding anything to the contrary contained in Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947 or in any other Order made under the powers conferred by Sub-section (1) of Section 9, Indian Independence Act, 1947, before the coming into force of this subsequent Order.

14. Under Sub-clause (2) of Clause 3 of the 1949 Order 'the whole of British India' occurring in any Central Act, is to be substituted by the expression 'all the provinces', presumably because after 15th August 1947, any reference by the Legislative Authority in Pakistan to provinces can only refer to the provinces of Pakistan, Section 1(3), Civil P. C., as adapted by the two Orders, makes that Code, as adapted for Pakistan, extend 'to all the provinces and the capital of the Federation' of Pakistan.

15. If we now turn to Section 2(5), Civil P. C., which defines a 'foreign Court' as adapted for India this definition reads as follows :

''Foreign Court' means a Court situate beyond the limits of all the provinces of India which has no authority in all the provinces of India and is not established or continued by the Governor-General.'

16. The same definition as adapted by the Pakistan Orders reads as follows:

'Foreign Court' means a Court situate beyond the limits of all the provinces and the Capital of the Federation which has no authority in all the provinces and the Capital of the Federation and is not established or continued by the Governor General.'

17. The definition of 'Foreign Court' as adapted for the two Dominions clearly indicates that from and after the appointed date, Courts, which were not foreign Courts before the said date, will be foreign Courts because of the two different sets of provisions as contained in the-relevant clause in Sub-section (2), Civil P. C. British India, within which both the Courts in the present case were previously situated has now ceased to exist and the test for determining, at the present stage, whether a particular Court is or is not a foreign Court in relation to another it is to be ascertained and determined with reference to the law now in force and as under the altered constitutional position.

18. In the absence of special provisions made in the constitution, as were made about certain matters when Burma was separated from the then British India and constituted as a separate State, or as coming under any one of the Orders passed by the Governor General under the Indian Independence Act, the Jaw in one State cannot be held to be applicable or attracted in another and separate State. In accordance with the accepted principles of International law the Dominions of India and Pakistan are now two separate Sovereign and Foreign States.

19. Section 1(3), Civil P. C., as adapted and made applicable to the respective Dominion, makes it clear that the provisions of this Code, as applicable to the Dominion of India, are not the same as the Code applicable to the Dominion of Pakistan.

20. To determine the jurisdiction of the Court of Small Causes at Calcutta to entertain or proceed with the execution of a decree passed by the Jamalpore Court we have to examine the-provisions of the Code of Civil Procedure as are in force in the Dominion of India. Under this Code, there is no escape from the conclusion that, the Jamalpur Court is a Court situate-beyond the limits of the Dominion of India and the said Court has neither any authority in this Dominion nor is being continued by the Governor-General here. From after 15th August 1947, the Jamalpur Court has become, in relation to the Court of Small Causes, Calcutta, a 'foreign Court' and the judgment, on the basis of which the decree now under execution was passed, is a 'foreign judgment.' Accordingly the provisions of Section 13 read with Section 44-A, Civil P. C., will be attracted. A person who intends to enforce the judgment of a foreign Court will have to satisfy the requirements as under Section 13, unless the judgment is by a Court situate within the territories of a reciprocating country as under Section 44-A of the Code. Our attention has not been drawn to any notification in the Official Gazette declaring Pakistan to be a reciprocating territory for this section. It must accordingly be held that the Court of Small Causes, Calcutta, has no jurisdiction to entertain any application for execution of a decree passed by the Jamalpur Court.

21. A faint attempt had been made by the learned advocate appearing for the opposite party to rely on the provisions contained in Section 37, Clause (b), Civil P. C. but that is an impossible position. The Court which passed the decree has neither ceased to exist nor has ceased to have jurisdiction to execute the same.

22. In view of the conclusion to which we have arrived that the Court of Small Causes, Calcutta, has no jurisdiction to entertain the present application for execution, it is not necessary for us to go into the next part of the defence as put forward on behalf of the Dominion of India in the written statement that the claim is not enforceable against this Dominion. If we were required to go into it, it would have been necessary for us to consider the provisions of the Indian Independence (Eights, Properties and Liabilities) Order 1947 and particularly to Article 10(1) of that Order. We have no materials in the records from which we may ascertain under which of the three clauses of the Article this particular claim falls. In the absence of the relevant and necessary facts, it cannot be determined whether the liability under the decree in the present case is one payable by the Dominion of India or by the Dominion of Pakistan or by the two jointly.

23. This Rule is accordingly made absolute and the application for execution filed in the Court of Small Causes is dismissed.

24. In view of the circumstances of this case each party will bear his own costs in this Court.

25. Certificate is granted under Section 206, Constitution Act.

K.C. Chunder, J.

I agree.


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