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The Owners and Partners of the Firm Named Shah Kantilal Vs. Dominion of India Owing East Indian Railway - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberExecution Case No. 23 of 1950
Reported inAIR1954Cal67
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(5), 2(6), 13, 43, 44A and 45; ;Indian Independence Act, 1947 - Section 7; ;Constitution of India - Article 261(3)
AppellantThe Owners and Partners of the Firm Named Shah Kantilal
RespondentDominion of India Owing East Indian Railway
Appellant AdvocateT.P. Das, Adv.
Respondent AdvocateGouri Mitter, Adv.
DispositionApplication dismissed
Cases ReferredCarl Franz Adolf Otto Ingenohl v. Wing On and Co.
- orderp.b. mukharji, j.1. this is an application in execution. the owners and partners of the firm shah kantilal as plaintiffs obtained an ex parte decree on 21-10-1948 from the court of the civil judge, okhamandal, in the former state of baroda in suit no. 4 of 1948-49 against the defendant dominion of india as owning the east indian railway for the sum of rs. 5683/12/- with interest at the rate of 6 per cent per annum and also for the sum of rs. 533/7/4 as costs with interest at the rate as aforesaid. on 21-3-1949, the state of baroda merged with the then province of bombay. the decree-holder thereafter made an application on 24-4-1950, in okhamandal court for transfer of the decree to the calcutta high court for execution and on the same date there , was an order by the civil judge,.....

P.B. Mukharji, J.

1. This is an application in execution. The owners and partners of the firm Shah Kantilal as plaintiffs obtained an ex parte decree on 21-10-1948 from the Court of the Civil Judge, Okhamandal, in the former State of Baroda in Suit No. 4 of 1948-49 against the defendant Dominion of India as owning the East Indian Railway for the sum of Rs. 5683/12/- with interest at the rate of 6 per cent per annum and also for the sum of Rs. 533/7/4 as costs with interest at the rate as aforesaid. On 21-3-1949, the State of Baroda merged with the then Province of Bombay. The decree-holder thereafter made an application on 24-4-1950, in Okhamandal Court for transfer of the decree to the Calcutta High Court for execution and on the same date there , was an order by the Civil Judge, Okhamandal,' transferring such decree to this High Court for execution. On 2-2-1951 the Tabular Statement in execution by the decree-holder was affirmed in this Court.

The total amount for which the execution is asked amounts now to Rs. 7083/12/8. In the Tabular Statement the decree-holder asked for realisation of the decretal dues by attachment of the furniture of the East Indian Railway lying at No 17, Netaji Subhas Road, Calcutta. On 14-2-1951, there was an objection that the decree could not be executed because no time was specified within which the State was to pay under the mandatory provisions of Section 82, Civil P. C. Thereupon the decree-holder made an application on 11-4-1951 to the Okhamandal Court to specify the time within which the State was to pay the amount and on the same date obtained an order from that Court specifying three months as the time within which to pay the amount and directing notice to Issue to the Government. I understand on 12-4-1951 no notice was given to the General Manager, East Indian Railway, by the Okhamandal Court to pay the decretal amount within three months. The State did not satisfy the decree by payment within the time so specified. As no payment was made the requisite report under Section 82, Civil P. C. was made on 20-8-1951 to the Government of West Bengal.

On 5-12-1951 upon the plaintiff's application certificate of non-satisfaction was directed to be issued by the Judge at Okhamandal. Such certificate of non-satisfaction was issued by that Court under O. 21, R. 6, Civil P. C. on 10-12-1951. Thereafter on 22-7-1952, notice was issued by this High Court upon the Union of India under o. 21, R. 22(1) (a), Civil P. C. to show why the decree passed against the Union of India and dated 21-10-1948 in Civil Suit No. 4 of 1948-49 in the Court of the Civil Judge, Okhamandal, should not be executed. The application now comes up before me for disposal.

2. The main points of contention on behalfof the Government of India are that the suitin which the decree was obtained was filed in aCourt of the Native State of the Baroda not established or continued by the authority of theCentral Government and that such decree wasobtained ex parte and not on the merits of thecase and that the Dominion of India never submitted to the jurisdiction of the said Court andthe decree passed against the Dominion of Indiais a nullity and cannot be executed. It is alsosaid that the decree cannot be executed by reasonof limitation. These are the main points advanced on behalf of the Union of India to resist theexecution. I will record here that the point oflimitation has not been pressed before me.

3. The main point for determination is whether the Court at Okhamandal in the former Native State of Baroda is a foreign Court and its judgment is to be regarded as a foreign judgment.

4. The position of a native state in 1948 was constitutionally different from what it was prior to the Indian Independence Act 1947. Before 1947 the native states in India under the Princes represented a species of constitutional status which was neither completely sovereign nor completely dependent. The native states were, however, under the paramountcy of the British Crown. Since the Independence Act, 1947, and with the coining into being of the Dominion of India the paramountcy of the British Crown ceased and lapsed. The result was that by the ordinary tests of international law and constitutional jurisprudence these native states became sovereign territories. The only limitations were such as were imposed by the terms of the Indian Independence Act and specially in respect of customs, communications and like matters under Section 7, Indian Independence Act.

5. The status and character of Okhamandal Court in Baroda State should also be examined in the light of the accession of Baroda State and its subsequent merger with India in order to determine if the Okhamandal judgment in this case is a foreign judgment. Section 5, Government of India Act, 1935, as adapted by the India (Provisional Constitutional) Order, 1947 made on 14-8-1947, by the Governor General in exercise of the powers conferred on him by Sections 8(2) and 9(1) (c), Indian Independence Act, 1947, provides that the Dominion of India established by the Indian Independence Act, 1947, shall be a union comprising among other Units the Indian states acceding to the Dominion. The manner of accession was by Instrument of Accession as provided in Section 5, Government of India Act, 1935, as adapted, and by Sub-section (6) thereof the courts are to take Judicial notice of such Instrument. Examining the form of' the Instrument of Accession and the schedule attached thereto it appears that the Dominion Legislature was given power to make laws for the acceding state in respect of

'jurisdiction and powers of all courts with respect to any of the aforesaid matters but except with the consent of the Ruler of the acceding state not so as to confer any jurisdiction or power upon any courts other than courts ordinarily exercising jurisdiction in or in relation to that State.'

Now the Okhamandal Court in exercising the jurisdiction in this case to entertain the suit and pass a decree therein does not come within the legislative sovereignty acquired by the Instrument of Accession. Neither the suit nor the decree herein relate to 'the aforesaid matters' which are generally in relation to defence, external affairs, communications, etc.

Then again the provisions of the States Merger (Governors Provinces) Order, 1949, indicate in para. 3 that

'as from the appointed day the states specified in each of the schedule shall be administered in all respects as if they form, part of the provinces specified in the heading of that schedule and accordingly any reference to an Acceding State in the Government of India Act, 1935, or in any Act or Ordinance made on or after the appointed day shall be construed as not including reference to any of the merged states and any reference in any such Act or Ordinance as aforesaid to a province specified in the schedule to this Order shall be construed as including the territories of all the states specified in that schedule.'

By para. 4 of the States Merger Order, 1949, it is clearly laid down

'all the law in force in a merged state or in any part thereof immediately before the appointed day, including orders made under Section 3 or Section 4, Extra Provincial Jurisdiction Act, 1947, shall continue in force until repealed, modified or amended by a competent Legislature or other competent authority provided that no order shall be made under the said Act by any authority on or after the appointed day in relation to the Governors of any of the merged states.'

In the schedule annexed to the States Merger Order is Sch. 2 which specifies the State of Baroda having merged in the Province of Bombay. Clause 10, States Merger Order, 1949, requires to be carefully examined because it relates to proceedings pending in a merged state to which the Dominion is a party immediately before the appointed day. The 'appointed day' is defined in that Order to mean the date of the commencement of the Order which is the first day of August, 1949. Now Clause 10, States Merger Order, 1949, provides as follows:

'If immediately before the appointed day any proceedings are pending in a merged state on which the Dominion is a party and if those proceedings would have been brought by or against the absorbing province under Article 9 had they been brought after the appointed day, the absorbing province shall be deemed to be substituted in those proceedings for the Dominion and the proceedings shall continue accordingly.'

Article 9 provides:

'Any proceedings which if this Order had not been made might lawfully have been brought in a merged state by or against the Dominion shall in the case of any liability arising before the appointed day or arising under any contract made before that day be brought (a) by or against the Dominion if the proceedings could have been brought by or against the Dominion had the liability arisen after the appointed day or as the case may be, arisen under a contract made after the appointed day, and (b) otherwise by or against the absorbing province.'

6. In construing these Articles of the States Merger Order it appears to me that they do not help the contention of the decree-holder in this case, because no proceeding was pending on 21-3-1949, when Baroda merged in Bombay. Except to the limited extent expressly provided in Arts. 9 and 10, State Merger Order, 1949, I am of the view that no decree of Baroda State before merger can be executed against the Dominion of India, now the Union of India, in the territories of the Indian Union. The Extra Provincial Jurisdiction Act, 1947, also does not help the decree-holder in this case.

7. The next step in the analysis is to examine the Okhamandal decree in the list of the definition of a foreign judgment provided by the Civil Procedure Code. The fact to remember is that this decree was passed by the Okhamandal Court in Earoda State on 21-10-1948 before the merger. Section 2(6), Civil P. C. defines foreign judgment as the judgment of a foreign court and Section 2(5) of the same Code defines a foreign court to mean a court situate outside India and not established or continued by the authority of the Central Government. That is the position after the amendment in the Civil Procedure Code.

Section 2(7)(B) of the amended Civil Procedure Code defines India to mean the territory of India excluding the State of Jammu and Kashmir but this definition of India does not apply to Sections 1, 29, 43, 44, 78, 79, 82, 83 and 87A, Civil P. C- In October, 1948, when the ex parte decree was passed the State of Baroda had not merged in the Province of Bombay and that court in the State of Baroda cannot, therefore, in my opinion, be regarded as then a court established or continued by the authority of the Central Government in India. Applying that test of the Civil Procedure Code the conclusion seems to be that the judgment or the decree of the Okhamandal Court is a foreign judgment or a foreign decree within the meaning of the Civil Procedure Code.

8. This, however, is not the solution of all the points urged before me in this application.

9. The next question is to determine that if it is a foreign judgment or a foreign decree, then can it be executed by this High Court. Section 13, Civil P. C. lays dawn that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the parties except

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of British India in cases in which such law is applicable; and

(d) where it sustains a claim founded on, a breach of any law in force in British India.

There are other exceptions with which I am not concerned in this application.

10. The test whether a foreign judgment is on the merits as laid down by Section 13, Civil P. C. has led to some difference of opinion. In this case the decree was passed ex parte. According to one view an ex parte decree cannot be regarded as being given on the merits of a case. If that view is accepted then it is enough to impeach the conclusive character of a foreign judgment as provided in Section 13 of the Code. It has been held, for instance, that a judgment on an award in England by default is not on the merits as in -- 'Oppenheim & Co. Ltd. v. Mahomed Haneef' AIR 1920 PC 120 (A) and a judgment on default in appearance is not one passed on merits as in --'Md. Kasim & Co. v. Seeni Fakir' AIR 1927. Mad 265 (FB) (B). it has, however, been held that a decision may be on the merits even though passed ex parte as in -- 'Sundaram v. Kandaswami' AIR 1941 Mad 387 (C), -- 'Wazir v. Munshi' AIR 1941 Pat 109 (D) and -- Oajanan v. Shanta' AIR 1939 Bom 374 (E). The observations of the Privy Council in -- 'Brijlal v. Govindram' AIR 1947 PC 192 (F), are also relevant in this connection.

11. It is, therefore, necessary in this case to consider one other exception mentioned in Section 13, Civil P. C. and that is whether in international law a judgment can be passed against a foreign state. This is provided in Section 13(c), Civil P. C.

On principles of international law it is well-settled that a suit against a foreign state is not entertained and no decree is passed against a foreign state unless the foreign state submits to such jurisdiction. This principle is founded on the doctrine that the sanction behind the Court in a State is the authority of the State in which the Court functions. As no sovereign State has any authority over another sovereign State, it follows as a corollary, that the Courts of one sovereign State can have no jurisdiction over another independent State except by its voluntary submission to such jurisdiction.

Applying that test it is beyond doubt that the Okhamandal Court in Baroda State could not on 21-10-1948, pass a decree against the Dominion of India which is now the Union of India and then a foreign state so far as Okhamandal Court was concerned. It is also undisputed on the facts here that the Dominion of India or the Union of India did not submit to the jurisdiction of Okhamandal Court at any stage.

12. There are certain sections of the Code relevant on the point under consideration. Section 43, Civil P. C. provides for execution of decrees passed by Civil Courts in places which the Code does not extend- or by any Court established or continued by the authority of the Central Government outside India. It provides that such decrees may be executed in the manner provided by the Civil Procedure Code within the Jurisdiction of any Court to which the Code extends. I am satisfied on the construction of Section 43, Civil P. C. that it does not help execution of Okhamandal Court decree by this High Court.

I will briefly state my reasons for this construction. The words 'any part of India to which the provisions of this Code do not extend' appear to contemplate such areas as the scheduled districts or the non-regulated districts within India and such places in India as are stated in Section 1(3) of the Code, but these words do not, in my opinion, indicate that they were intended to apply to foreign and sovereign territories where the possibility of application or extension of the Civil Procedure Code could never be contemplated at all. The other words 'any Court established or continued by the authority of the Central Government outside India' make it abundantly clear in my view, that in order that decrees of Courts outside India may become executable in India under the Code, such courts must be courts established or continued by the authority of Central Government, such as for instance, a decree of the Court of a political Agent at Sikklm was held executable in --'Zamil Ahmed v. Maharajah of Sikklm' 38 Cal 859 (G), or in the Tributary Mahals (Mayurbanj) of Orissa, as in -- 'Ratan v. Khatoo' 29 Cal 400 (H). The Okhamandal Court in Baroda State before the merger when the decree in this case was passed, cannot be said to be a Court established or continued by the Government of India. Lastly, it should be emphasised in this connection that the definition of 'India' as provided in Section 2(7)(B) of the amended Civil Procedure Code, does not apply to this section. The next section is Section 44A of the Code of which notice may be taken. Section 44A of the Code only refers to execution of decrees passed by superior Courts in the United Kingdom or of any reciprocating territory which is defined to include the Dominion by Notification. Okhamandal Court does not answer this description.

Section 45, Civil P. C. equally has no application because the Okhamandal Court when it transferred this decree to this Court did not come within the empowered Courts within the meaning of that section nor is there the requisite Notification in the Official Gazette making such section applicable to Okhamandal Court.

13. The leading case on this branch of the law is -- 'Chunnilal Kasturchand v. Dundappa Damappa', : AIR1951Bom190 (1). It is a decision of Rajadhyaksha and Shah JJ. of the Bom-bay High Court. The ratio of that decision is that it is open to a Court executing a foreign court's decree to enquire whether the foreign court had jurisdiction to pass the decree. A decree pronounced by a Court of a foreign State in a personal action in absentia, the absent party not having submitted itself to its authority, is a nullity. It was held there that even where there are reciprocity agreements under which decrees of Courts of one State are enforceable by a Court of another State, a Judgment-debtor is entitled to raise all the defences arising under Section 13 of the Code as if he were sued on a foreign judgment.

In that case an ex parte decree for money passed by a British Indian Court at Belgaon against a subject of the Indian State of Jhamakandi, was transferred for execution at Jhamakandi under S-44, Civil P. C. The execution was dismissed on 10-3-1948 on the ground mentioned in Section 13(a), Civil P. C. On 8-3-1948 the Government of Jhamakandi State had been ceded to the Indian Dominion and subsequently on 29-7-1949, Jhamakandi had completely merged in the Bombay Province. On appeal the Bombay High Court held that the relevant date for ascertaining the nature of the decree was not the date of filing execution but the date on which the Court was called upon to pass an order for execution. At that time Jhamakandi had ceased to be a foreign territory and, therefore, the decree was held to be executable. In fact, It was said there that even if it were held that the Belgaon Court was a foreign Court qua Jhamakandi Court at the time of the disposal of execution, it had ceased to be so before the hearing of the appeal. This case is distinguishable form the present case before me, on the fact that the decree whose executability is in question here is not the decree of an Indian Court.

14. This case was followed and approved by a Full Bench of the Bombay High Court in --'Bhagwan Shankar v. Raja Ram', : AIR1951Bom125 (J). The facts in the Pull Bench case of the Bombay High Court may be noted briefly. The defendant in that case was a resident of Akalkot. Before merger the Sholapur Court passed a decree against the defendant. Under the provisions of the Akalkot Code, corresponding to Section 13(a), Civil P. C., this decree was not executable in Akalkot as the defendant had not submitted to the jurisdiction of the Sholapur Court. The question, therefore, arose whether after merger of the State of Akalkot with India, the decree was executable in Akalkot. There it was held that the decree became executable in Akalkot after the merger because it ceased to be a foreign decree. In fact, it was said that the merger was an Act of State which had altered the status of Akalkot and had also altered the status of the defendant and made Akalkot a Municipal Court and made the defendant a citizen of India whereas Akalkot before had been a foreign Court and defendant a foreigner. The decision of Chunnilal's case (1) which laid down, that the principles which applied' to the construction of a Statute affecting vested rights did not apply to the alteration of the status of the individual by an Act of State, was approved.

15. The other decision that requires notice is one of the Mysore High Court in -- 'H.M. Subbaraya Setty & Sons v. Palani Chetty', A. I. R. 1952 Mys 69(K). In that case it was held that where a decree for payment of money was passed ex parte before Mysore acceded to the Indian Union, by a Madras Court against a resident in Mysore who had not submitted to the jurisdiction of that Court, the decree could not be executed by a Court in Mysore even after accession. It was held there that the decree was by international law a nullity in Mysore and cannot be executed in Mysore. In fact, the ratio of the decision is that the accession of Mysore to the Indian Union by virtue of the Constitution which came into force on 26-1-1950 could not have the effect of converting what was a foreign decree before into a valid and executable decree in Mysore Courts. It was held, in that case that Article 261(3) of the Constitution could not operate retrospectively so as to validate and render executable in Mysore these otherwise inexecutable decrees. It appears to me that the principle laid down by this decision of the Mysore High Court is that the decrees which were inexecutable as being those of a Court in a foreign State according to the law then in force up to the date of the Constitution, have not ceased to be so on account of the changes introduced by the Constitution or by reason of the constitutional definition of 'the territory of India.'

The other point of importance decided by the Mysore authority is that the date of the decree and not the date of the application for execution is material to decide the question of executability. The two Bombay decisions were distinguished in this case, and there are indications in the Mysore High Court judgment that some at leat of the observations of the two Bombay High Court decisions were dissented from.

16. The next step is to examine this problem in the light of the Constitution of India. Article 261 of the Constitution only recognises the principle of full faith and credit to judicial proceedings of the Union and of every State and that final Judgments passed by Civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law. In that context Article 261 of the Constitution does not throw any light on the problem that is raised on the application before me. Article 261 Of the Constitution cannot, in my view, be given retrospective effect. The constitutional basis of full faith and credit of judicial proceedings is to ensure universal validity to final Judgments of Civil Courts of different States forming a Union and is a necessary corollary of federalism. But there is no warrant in constitutional jurisprudence of a federal constitution to extend the doctrine of full faith and credit to sovereign States outside the Union.

It is noteworthy that the Privy Council in --Ramalingam v. Abdul Wajid', A. I. R, 1950 P. C. 64 (1) came to the conclusion that with the passing of the Indian Independence Act, 1947, Just before the accession, the Maharaja of Mysore alone had sovereign powers and it was for him to make such laws as he thought fit for the administration of justice in his territory. That seemed to be the consequence which followed the lapse of paramount-cy of the British Crown. Then again the Supreme Court of India in -- 'Janardan Reddy v. State of Hyderabad' : [1951]2SCR344 , proceeded on the same principle that courts in the Hyderabad State before the Constitution were in no way subordinate to the Indian Courts, and although the Constitution now makes Hyderabad one of the States in the Indian Union, it does not bring pre-Constitution decrees of Hyderabad State Courts within the jurisdiction of the Indian Supreme Court. It is quite clear also that the Mysore High Court did not agree with some at least of the views expressed by the two Bombay decisions.

17. It has been contended before me that the words 'territory of India' have been defined by the Constitution as inter alia comprising the territories of the State and India as a Union of those States. The argument, therefore, proceeded to assert that Baroda having merged in Bombay before the Constitution came into force must be regarded after the Constitution as part of the Bombay State and, therefore, decrees made in Baroda before the merger have become after the merger executable in the same manner as domestic judgments or decrees. My reading of the Constitution is that there is no such retrospective effect in any Article of the Constitution including its definition of the 'Territory of India' which has the effect of converting what was a foreign judgment before the Constitution into a domestic judgment after the Constitution. By that zest I must hold that the Okhamandal Court's decree which is now intended to be executed in this Court remains a foreign judgment and the Constitution does not place it on the same footing as a domestic judgment for the purpose of executioa

18. The question is not to be determined by applying the test whether at the time of execution any of the sections of the Civil Procedure Code applies, but must be determined in my judgment by the test whether such decrees by their nature of being foreign Court judgments are at all executable, and this goes to the very root of their validity and enforcibility. The principle that the executing court does not go behind the decree has always been understood subject to the overriding question of whether the decree is a nullity or not. It is settled law that an executing court can always refuse to execute a decree which is a nullity. A foreign judgment is not conclusive if it is in breach of any international law. In this case the Okhamandal Court in Baroda State when it passed the decree had no jurisdiction against what was then a foreign state of the Dominion of India. As such, therefore, it is a nullity. I cannot, therefore, execute the decree.

19. This conclusion appears to me to be also in consonance with the principles laid down by the Privy Council in -- 'Gurdyal singh v. Raja of Pa-ridkot', 21- Ind, App ,171 (N).

20. This branch of the law is often confused with the capacity of the court of a country to pass a decree against a foreigner and the validity and effect of such decree in foreign countries. The point was very clearly brought out by the decision in --'Gaekwar, Baroda State Railway v. Habib Ullah' : AIR1934All740 where it is said:

'According to international law, pure and simple, a court has no jurisdiction to entertain a suit against a foreigner who neither resides within, nor has submitted to its jurisdiction merely because the cause of action wholly or in part arose within its jurisdiction. But different considerations arise where the local Legislature has conferred such jurisdiction upon the court, such special legal legislation is a recognised exception to the said rule of international law; and it follows that if the Indian Legislature has conferred jurisdiction upon British Indian Courts to entertain suits against non-resident foreigners where the cause of action wholly or in part, arose within their jurisdiction, such courts undoubtedly have jurisdiction, if the conditions provided by the law to which they are subject exist. The language of Section 20(c), Civil p. c., is general and wide enough to apply to the case of non-resident foreigners and there is nothing in the section which makes an exception as regards them. A court in British India cannot disclaim jurisdiction against a non-resident foreigner if the plaintiff's cause of action wholly or in part arose within its jurisdiction. What sanctity will attach to its decree if it is questioned in a foreign country is a different question.'

21. It was really the same principle which the Privy Council pronounced in '21 Ind App 171 (N). Lord Selbourne observes in that case that no territorial legislation can give jurisdiction which any foreign court ought to recognise against absent foreigners who owe no allegiance or obedience to the power which so legislates. In all personal actions the courts of the country Jn which the defendant resides, not the courts of the country where the cause of action arose, should be resorted to.

22. To recall the facts leading to the observations of the Privy Council in '21 Ind App 171 (N)', it is necessary to emphasise that in that case which was a personal action, the defendant was the treasurer of Faridkot State but at the date of suit had ceased to be such and was resident in a different state called the Zind State where he was a domiciled subject, It was there held by the Privy Council that such a decree was a nullity by international law. It is also essential to emphasise in this aspect that the case before the Privy Council did not arise out of execution but arose out of suits brought in Lahore Court on Faridkot Court's judgments.

23. On these principles and authorities which I have discussed, I hold that Okhamandal Court decree in this case is a foreign decree.

24. The next step to consider is how a foreign judgment can be enforced in this country. Obviously there are two modes of enforcing foreign judgments, -- one is by proceedings in execution under Sections 43 and 44A, Civil P. C., a procedure which I have already indicated is not available in this case, because the Okhamandal Court in this case does not answer the description of Courts mentioned in those sections of the Code. The other mode of enforcing a foreign judgment is by bringing a suit upon it as in the case of the Raja of Faridkot in '21 Ind App 171 (PC) (N)' and --'Carl Franz Adolf Otto Ingenohl v. Wing On and Co.' AIR 1923 PC 83 PC (P).

25. Story in his classic work on the Conflict of Laws, 7th Edition at pp. 765-6 lays down the essential and important distinction between domestic judgments and foreign judgments. He observes:

'Domestic judgments rest upon the conclusive force of the record, which is absolutely unimpeachable. Foreign judgments are mere matters 'en pais,' to be proved the same as an arbitration and award, or an account stated; to be established as matter of fact before the jury; and by consequence subject to any contradiction or impeachment which might be urged against any other matter resting upon oral proof.'

He proceeds to observe:

'It is proper to add that, while the English courts thus recognise the general force and validity of foreign judgments, it has been done under such limitations and qualifications that great latitude still remains for breaking the force and virtually disregarding such foreign judgments as proceed upon an obvious misapprehension of the principles governing the case; or where they are produced by partiality or favouritism or corruption, or where upon their face they appear to be at variance with the instinctive principles of universal justice. But those are rare exceptions.'

26. Cheshire in the third edition of his Private International Law lays down the broad principles in respect of the foreign judgments. The learned jurist observes that a foreign judgment has no direct effect in England but creates a cause of action in England. The recognition was formerly based on the theory of comity of nations as observed by Ashhurst J. in--'Geyerv. Aguilar' (1798) 7 TR 681 at p 697 (Q). in course of evolution this principle of comity was found to be inadequate and gave place to the modern doctrine of obligation which means that when the judgment of a court of competent jurisdiction is proved, the burden lies upon the defendant to show why he should not perform the obligation. At page 789 Dr. Cheshire observes:

'The common law doctrine that a foreign judgment, though creating an obligation that is actionable in England cannot be enforced here except by the institution of fresh legal proceedings is subject to important statutory exceptions introduced by the Judgments Extension Act, 1868, the Administration of Justice Act, 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933.'

27. Under the Judgments Extension Act, 1868, an Irish or Scottish judgment has full effect In England. Under the Administration of Justice Act, 1920, which was passed upon the recommendation of the Imperial Conference of 1911 provision is made for the enforcement within the United Kingdom of judgments obtained in a superior court of any part of the British Dominions including any territory which is under the British Protection or mandate. Its provisions are somewhat similar to our Section 44A, Civil P. C. This principle was extended by the Foreign Judgments (Reciprocal Enforcement) Act, 1933, extending it not merely to British Dominions but also to foreign countries.

28. Both on the authorities as well as on the principles of Private International Law I am satisfied that this application for execution of the foreign decree of Okhamandal Court of Baroda State before the merger cannot be executed by this Court and the execution proceedings must be dismissed.

29. As I am of the view that the decree intended to be executed in this case is a foreign decree and as I am of the view that sections 43, 44 and 44A, Civil P. C. are not applicable to this case, there can be no execution of such decree by this Court. The question of what considerations- should be taken into consideration in a suit upon a foreign judgment does not arise for determination in this application for execution.

30. I, therefore, dismiss the application for execution but having regard to the circumstances Imake no order as to costs. Certified for Counsel.

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