Malimath, J.
(1) This second appeal arises out of execution proceedings. But it raises a very important point of law as to whether a decree passed by a foreign court prior to the Constitution is executable in another State after the Constitution by which both the courts have now become parts of the Indian Union. The decree in question was passed on 13-1-1950 by the High Court of Calcutta in its Original Jurisdiction the defendant who was then a resident of Kolar in the Mysore State remaining ex parte. On 30-9-53 the decree was transferred to the Court of the Subordinate Judge at Kolar. On 25-1-54, an execution petition was filed in the Court of the Subordinate Judge, Kolar, the same having been registered as Ex. 2 of 1954.
The judgment-debtor raised several contentions, one of them being that inasmuch he declined to submit himself to the jurisdiction of Calcutta High Court, the judgment of that court being one of a foreign court, was not valid and binding on him. It was thus contended that it was inexecutable in the Court of the Subordinate Judge at Kolar in the Mysore State. The executing court held that the decree was executable, while in appeal the District Judge came to the conclusion that it was not executable. It is against that the order that the present appeal has been filed by the decree holder.
(2) A curious feature of this case is that while at the date of the passing of the decree, Calcutta Court was a foreign territory with reference to the court at Kolar where the defendant was residing, both of them came within the territory of India by reason of the accession of the State of Native Princes to the Dominion of India and the formation of a Soverign Democratic Republic by the Constitution of India. The phenomenon has given rise to several cases like the one under consideration in various states. Consequently there have been several decisions on this point by various High Courts. Unfortunately the decision have been widely divergent and in some points the differences have been very sharp.
One set of decisions takes the view that, under the above circumstances, the decree becomes executable after both the courts--the one passing the decree and the one executing it--became parts of the territory of India after the Constitution. The other set of decisions takes a contrary view viz., that, in spite of the coming in of the Constitution and the formation of one common territory of India, the decree remains inexecutable as a decree of a foreign court. Unfortunately, the matter has not yet reached the Supreme Court whose decision could set at rest the controversy. Under these circumstances, the matter needs a very careful consideration.
(3) The question involves a principle of international law. Both the schools of thought do agree on the point that the Judgment of a court in the former British India is a foreign judgment in a Court in the former Princely State of India and vice versa. But one of them is of opinion India after the formation of the Indian Union, both the courts come within one country and that they no longer remain foreign courts with relation to each other. Consequently, it is concluded that what once was a foreign court is no longer such after the Constitution.
On this process of reasoning, it is decided that there is no longer any bar for the execution of the decree. The other school however, is of opinion that the bar continues even after the Constitution and even after the formation of one territory of India for all the courts. As can be deduced from a careful consideration of these two sets of decisions it is found that there are two cardinal principles on which the two sets are at variance. According to those who hold that the decree becomes executable, the material point of time to consider the nature or validity of the decree is the date when execution is sought and not when the Judgment was rendered. They are also of opinion that the Judgment of a foreign court is not void ab initio or a nullity.
In view of the fact that such a decree can be executed within the jurisdiction of the court which passed it it is a valid judgment. There is merely an impediment for its execution in a foreign court. That impediment having been removed by the Constitution and by the formation of the Indian Union within whose limits both the court come in, there is no reason why the decree should not be executable. According to those who are of opinion that the decree is not executable, the material date is the date of the decree and not the date when execution is sought.
The decree is a nullity with reference to the foreign court where its execution may be sought. That being so the coming in of the Constitution or of the formation of the Indian Union cannot make a decree valid such that it could be executed after the Constitution in a State where it could not have been done before the Constitution. In view of this sharp difference of opinion, it is necessary to examine the above two stand points.
(4) Before doing so, it would be useful to discuss the general principles underlying the validity or otherwise of foreign judgments. The ordinary rule is that a country has exclusive jurisdiction within the limits of its own territory. It cannot lay down rules for the rest of the world. Other countries are not bound to recognise its judgments as ***** any obligations unless such judgments fulfil the conditions which the Comity of Nations demands before an international validity can be asserted. Such conditions as mentioned in Halsbury's laws of England (3rd Edition, Vol. VII, para 257) are fulfilled where:
(1) The defendant is a subject of the foreign territory.
(2) The defendant is a resident in the country where the action is started at the time it was begun against him.
(3) The defendant in his character as plaintiff in the foreign action himself selects the forum.
(4) The defendant voluntarily submits to the jurisdiction. Or
(5) The defendant contracts to submit to the jurisdiction of the foreign court.
(5) Unless such conditions as are enumerated above exist, the judgment of the foreign court will not be deemed to be one passed by a Court of competent jurisdiction. There are also some other considerations which govern the conclusiveness of a foreign judgment apart from the competency of the Court's jurisdiction. They are to be found in cls. (b) to (f) of S. 13 of the Civil Procedure Code, while clause (a) relates to the competency of the Court's jurisdiction.
(6) The point involved in the present case is restricted to the consideration of the competency of the court. In this connection, it may be noted that when the suit was filed in the Calcutta High Court by the present appellant, the present respondent was not residing within the jurisdiction of that High Court. He was then residing at Kolar in the State of Mysore. The summons sent to him to that place was refused. The result is that he declined to submit to the jurisdiction of that court and an ex parte decree has been passed against him. It is admitted by the learned Advocates on both sides that the Calcutta court was a foreign court with reference to the Subordinate Judge's court at Kolar where execution is sought and that the Judgment of the Calcutta High Court is a foreign judgment.
It is also conceded for the appellant that on the date of the judgment any decree passed as per that judgment was not executable in the Mysore State for the reason that it is invalid having been passed against a non-resident foreigner who refused to submit to its jurisdiction. After the decree, the Indian Union came to the formed by the Constitution of India, as a result of which both the States--Bengal as well as the State of Mysore--became parts of India.
It is urged for the appellant that this has the effect of changing the character of the judgment and that it no longer continues to be a foreign judgment. On that ground, it is urged that a decrees passed as per that judgment is executable in the Mysore State. It was also urged by the learned Advocate for the appellant that the production of a certified copy of the decree by the appellant raises a presumption in his favour in respect of the competency of the Calcutta High Court's jurisdiction as laid down in S. 14 of the Civil Procedure Code. He further urges that this presumption is not displaced by the respondent. In this connection it may be noted that the J. debtor put in his objections in writing on 24-3-1954. One of his contentions in para 5 was that he had never at any time submitted himself to the jurisdiction of the Calcutta High Court and that the decree, of that court is not executable being ex parte decree of a foreign court. In reply to this, the appellant decree holder put in his statement on 10-6-54. Therein it is stated that 'the J. debtor has failed to state that the summons was served on him personality and that he aid not contest the suit and hence the decree was passed against him ex parte'. Referring to the above said contention of the J. debtor in para 5, it is mentioned 'since the deft,. J. debtor is not a subject of the Rajpramukh of Mysore State, be cannot plead that the decree against him by the Calcutta High Court is not a valid decree and that the same is not executable against him. That the relevant date for purpose of execution is the date when the court is called upon to pass orders for execution.' It is thus clear that the only ground urged by the D. holder to show that the Calcutta High Court had jurisdiction is that the summons was served on the defendant respondent personally. It is not alleged that the defendant was residing within the jurisdiction of the Calcutta High Court when the suit was filed. Nor is it alleged that he was a subject of British India at the date. On the other hand, it is conceded that when the suit was filed in Calcutta, the defendant was residing at Marikuppam in Kolar Gold Fields. This can be seen from the certified defendant. It further bears an endorsement that it was refused.
This was in November 1949. From this it is clear, as mentioned in the Judgment of the trial court that the defendant-respondent refused to accept the summons of the suit sent to him by the Sheriff of the Calcutta High Court while he was in Kolar Gold Fields, Mysore. It is also clear that the presumption, if any, in favour of the competency of the Calcutta High Court's jurisdiction is sufficiently displaced. Besides this, it is doubtful whether the presumption in Section 14 C.P.C. can be claimed by the appellant merely on the production of a copy of the decree, as he has done, without producing a copy of the foreign judgment inasmuch as the presumption is intended to be drawn under the provisions of Section 14 C.P.C., when a certified copy of a foreign judgment is produced. Anyway, I do not find any difficulty in reaching the conclusion that the High court of Calcutta which passed the judgment was not a court of competent jurisdiction to pass it.
(7) On the basis of want of competency as abovesaid, it is conceded by both sides that the decree was not executable in the Mysore State on the date it was passed. Since it is urged for the appellant that the material date is the date when the decree based on a foreign judgment is sought to be executed. It is necessary to consider the soundness of that argument. Before entering into an academical discussion as to which of the two dates has to be accepted as a proposition of law, it would be useful to consider the results that may follow as a consequence of the conclusion one way or the other. Knowing that a decree passed by the Calcutta High court will be invalid and will not be executable against him in the Mysore State, the defendant can with impunity refuse to submit to the jurisdiction of the Calcutta High Court and consequently to put forth his defence as against the claim.
He thus suffers an ex parte decree being passed against him in the full belief that that decree will be inoperative against him, so long as he is in a foreign State, e.g., Mysore. This implies that if only there was any chance of the decree becoming executable against him, it is possible that he would have taken the chance to appear in the suit and to put forth his defence. It is urged for the appellant that by some legal fiction resulting from the Constitution or from the formation of the Indian Union the bar against executability of the decree disappears and that it can be executed against him.
Apart from the legality or otherwise of such a fiction as above said, execution of the ex parte decree against him will deny him the primary right of contesting the claim and of putting forth his defence. It is not suggested that such an opportunity is by any means to be given to the defendant again at any stage before actual execution starts. In the absence of such an opportunity, it would be, in one sense, a denial of the principles of natural justice if the decree is allowed to be executed. The position of the defendant in such a case is not the same as that of a defendant who either deliberately or negligently fails to appear in any suit, though served, and who allows an ex parte decree being passed against him without putting forth any defence.
In the latter case, the J. debtor is deemed to know the consequence of his non-appearance, viz., not only that it results in an ex parte decree but also that the decree would be a valid decree capable of execution against him in spite of its having been passed in his absence. Law requires him to appear and put forth his defence at that stage if at all he is to contest the claim, the consequences of his failure being already made known by law. But there is no such law compelling a defendant residing in a foreign State to appear and put forth his defence to a suit in a foreign court. On the other hand, in such a case, law definitely assures the defendant that any decree passed against him without his submitting to the jurisdiction of the foreign court would be invalid and not executable against him. Speaking of the defendant who allowed an ex parte decree by a foreign court being passed against him in spite of the summons having been served on him, their Lordships of the Privy Council observed in Sirdar Gurudyal Singh v. Rajah of Faridkote, 21 Ind App 171:
'He disregarded them and he never appeared in either of the suits instituted by the Rajah or otherwise submitted himself to that jurisdiction. He was under no obligation to do so, by reason of the notice of the suits which he thus received or otherwise, unless that court had lawful jurisdiction over him.
(8) The taking away of such an immunity given to him by international law without compensating him by giving an opportunity to defend, would work a great hardship to him. According to the appellant, this is supposed to be the legal consequence of the formation of the Indian Union by the Constitution. To my mind, such an interpretation is clearly unjust since it definitely harms the interest of one of the parties and gives undue advantage to the other. The D. holder will have the privilege of executing an ex parte decree without a proper opportunity to the other side to contest his claim. Unless that is the only way of interpretation or unless there is some justifying or compelling reason, such an interpretation is unfair to the defendant. In the present case, I do not find any such justification or necessity.
(9) As the question of the validity of the decree is linked with the question of the material date, it would be worthwhile examining whether the decree passed on a foreign judgment is an absolute nullity or otherwise. No doubt, their Lordships of the Privy Council have observed in the aforesaid case in 21 Ind App 171:
'In a personal action, which none of these causes of jurisdiction apply, a decree pronounced in absentem by a foreign Court, to the jurisdiction of which the Defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it; and it must be regarded as a mere nullity by the Courts of every nation except (when authorised by special local legislation) in the country of the forum by which it was pronounced.'
Reading both the above sentences together, it will be clear that although their Lordships observe that the decree of a foreign court is an absolute nullity, it has to be understood with reference to the latter sentence that it is deemed to be such a nullity with reference to Courts of countries other than the country whose court passed it. It further implies that so far as the Courts in that same country are concerned, it is not only not a nullity but it is a valid one. In Bhagwan Shankar v. Rajaram reported in : AIR1951Bom125 (FB), Chagla C. J. observes as follows:
'Therefore in one sense the decree is a nullity in a limited sense. The other way of putting the same idea is that the decree is a valid decree, but it is not enforceable in courts other than courts where it was passed by reason of private international law.'
With respect, I am in entire agreement with this part of his reasoning. The Madhya Bharat High Court has also come to the same conclusion in the Full Bench case of Braj Mohan Bose v. Kishorilal Kishanlal, (S) AIR 1955 Madh B 1:
'A judgment pronounced by any such Court is not and cannot be treated as an absolute nullity for all purposes. It is enforceable in the country of the court which passed it. It is a nullity only from the point of view of international law and it is only a foreign court that can refuse to execute it.'
(10) Both the above courts base their conclusion on the fact that under Section 20(c) of the Code of Civil Procedure, a court will have jurisdiction to entertain a suit when the cause of action wholly or in part arises within its jurisdiction irrespective of the fact that the defendant may or may not be a resident within the local limits of the jurisdiction of that court. To the extent that the court entertains a suit falling within Section 20(c) against a person residing outside its jurisdiction, the court is certainly intra vires. In such a suit it can very well proceed to pass a decree whether the judgment debtor submits to its jurisdiction or not. The court being thus competent the decree will, no doubt be valid and executable against the judgment debtor or his assets in so far as he or they are found within the jurisdiction of the local limits of that court or of that country.
To this limited extent the decree cannot be said to be a nullity. At the same time the same decree has to be deemed to be a nullity with reference to the foreign court within whose jurisdiction the defendant may be residing. It is incapable of execution in that court, as observed by the Privy Council in the above case. That it is so, it not disputed even in the present case. It will thus be seen that the same decree is a valid decree as well as a nullity at the same time but with reference to different courts. This dual character of the same decree at the same time should be kept clearly in mind.
(11) In view of the fact that the decree is valid for certain purposes and that it is only unenforceable in courts other than the courts where it was passed, their Lordships of the Bombay High Court in the aforesaid case took the view that it is a mere impediment in the way of its execution which impediment disappeared on account of the merger of the State of Akalkot where the decree of the Sholapur Court was sought to be executed. The learned Advocate for the respondent seeks to distinguish this case on the ground that it case the Akalkot State merged in the State of Bombay (the Sholapur Court being in that State) and thus the Akalkot Court lost its very identity and became one with Bombay. He contends that the position in the present case is not similar.
There is no merger or loss of identity of the Mysore State. Although there is a reference to the Merger Order in the judgment of the Bombay High Court above referred to we are not in possession of the same and it is therefore difficult to see what were the special features of the Merger. The said view of the Bombay High Court was accepted by the Madhya Bharat High Court in the case of (S) AIR 1955 Madh B 1 above referred to, and it was held that the decree of a Court in British India prior to the Constitution was executable in a Court situated in a former Native State after the Constitution on the ground that it ceased to be a foreign State. In order to appreciate these views, it would be necessary to consider the effect of the Constitution and of the formation of the Indian Union bringing together both the Courts under one Central Government.
(12) It is urged for the appellant that Art. 261 of the Constitution of India makes a decree of any court in the Indian Union executable by any other Court in that territory. That Article runs as follows:
'(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) The manner in which and the conditions under which the acts, records and proceedings referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament.
(3) Final judgment 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.'
On the basis of this Article, it is urged for the appellant that after the introduction of the Constitution, the Court at Kolar in the Mysore State where the decree is sought to be executed became part of the same territory of India as the Court of Calcutta, and therefore the decree of the latter Court becomes executable in the former. It may be so in respect of any decree passed by the Calcutta High Court after the Constitution of India has come into force. The Article is not retrospective and it is not applicable to the case under consideration. This is clearly established by the decision of the Supreme Court in Keshvan v. State of Bombay, : 1951CriLJ680 , where their Lordships have observed :
'Every Statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. This rule of interpretation should be applied for the purpose of interpreting our Constitution.'
The same view is also found expressed in Janardhana Reddy v. The State, : [1950]1SCR940 . From this it is clear that Art. 261 cannot be applied retrospectively and therefore the appellant cannot derive any benefit from that Article.
(13) The next argument urged by the learned Advocate for the appellant is that by Art. 394 of the Constitution, certain Articles including Articles 5 to 9 were brought into force at once while the remaining Articles came into force on 26-1-1950, which date is referred to as the commencement of the Constitution. According to him, the former set of Articles came into operation on 26-11-1949. In making a particular reference to this, his idea is to show that these set of Articles came into force prior to the date of the decree which is sought to be executed and which was passed on 13-1-1950. Out of the Articles that came into force on 26-11-49, is Art. 5 which relates to citizenship. It reads as under:
'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.'
His contention is that since the rights of citizenship were given as from 26-11-1949, the defendant became a citizen of India within whose territory is located the High Court of Calcutta. His inference from this is the High Court of Calcutta is no longer a foreign Court with reference to the defendant respondent in this case. On this reasoning, it is urged that the decree could not be said to be invalid on the ground of its being a foreign decree and that it is perfectly executable. This assumes that the defendant came within the territory of India by the coming into force of Art. 5. This is very doubtful since he was a resident of the then Princely State of Mysore, which could not be said to be within the territory of India till the commencement of the Constitution. Article 1 of the Constitution reads:
'(1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be as specified in the first Schedule.
(3) The territories of India shall comprise-
(a) the territories of the States;
(b) the Union territories specified in the First Schedule; and
(c) such other territories as may be acquired.'
From this it is clear that unless and until Art. 1 come into operation, the areas of the former Princely States will not be deemed to have become parts thereof. Art. 1 came into operation with the commencement of the Constitution. Till then merely by the coming into force of Art. 5, the defendant cannot be said to be a citizen of India, that is Bharat. Besides, we have to consider the status of citizenship as conferred by Part III of the Constitution but with reference to the question as to whether the Court of Calcutta was a foreign Court. The material provision in the Constitution which defines a 'foreign State:' is Art. 367(3) which runs as follows:
'For the purposes of this Constitution 'foreign State' means any State other than India:.....' Even this Article along with Art. 1 came into operation on 26-1-1950. Hence the Calcutta High Court was a foreign court on the date of the decree with reference to the respondent who was then residing in the Mysore State in spite of the coming into force of Art. 5 of the Constitution. Similar view has been taken by the High Court of Calcutta under similar circumstances in Firm Shah Kantilal v. Dominion of India, : AIR1954Cal67 : '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'. There is no such retrospective effect in any Article of the Constitution including the 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.'
(14) While considering the effect of the coming in of the Indian Constitution on the validity or executability of a foreign judgment, it would be necessary to note that the question has to be considered with particular reference to the Civil procedure Code where the terms 'foreign Court' and 'foreign judgment' are defined and where the conclusiveness or otherwise of the foreign judgment is provided for. Article 372 of the Constitution of India provides that all other laws in force in any part of India immediately prior to the commencement of the Constitution should continue in force in those parts until altered or repealed or amended by a competent Legislature or other competent authority.
Thus it is clear that the Code of Civil Procedure, 1911, which was the law in force in the Princely State of Mysore, continued in force even after the coming in of the Constitution. This obtained till 1-4-51 when by the Central Act No. II of 1951 the code of Civil Procedure, 1908(Act V of 1908) was introduced in the whole of the territory of India, as defined by the Constitution of India. It is by Section 20 of this Act that the Mysore Civil Procedure Code is deemed to have been repealed as provided in that section.
Hence on the date of the decree, the validity of the decree of the Calcutta High Court will have to be determined by applying the provisions of the Mysore Code of Civil Procedure. Sub-sec.5 of S. 2 of that Code defines a 'foreign Court' as a 'Court not established or continued by the Government of Mysore.' Sub-sec.6 defines a 'foreign judgment' as a 'judgment' of a foreign Court.
From this it is clear that on 13-1-50 when the judgment of the Calcutta High Court was pronounced, it was a foreign judgment. The Provisions of S. 13 of the Mysore Code of Civil procedure are almost in similar terms as those of S. 13 of the Central Code of Civil procedure being Act No. V of 1908. It was, Therefore, a nullity so far as the Courts in the then Mysore State were concerned and was therefore inexecutable in those Courts. As already discussed, this position is not materially altered by the coming in of the Constitution.
Although the Constitution brought both the areas of the West Bengal State and the Old Mysore State into one territory of India and although by reason of clause 3 of Art. 367 of the Constitution, the State of West Bengal was no longer a foreign State with reference to the State of Mysore, those results could only apply to a judgment pronounced after the commencement of the Constitution. So far as the judgment or decree passed prior to the Constitution, the position remained as before until the introduction of a common civil procedure Code by Act II of 1951 above referred to.
(15) Act II of 1951 not only repealed the old Mysore Code of Civil Procedure but also introduced the Central Code of Civil Procedure in the Mysore area. It further amended the definition of the term 'foreign Court' in Sub-section 5 of S. 2 of the Code of Civil Procedure. 'Foreign Court' as established or continued by the authority of the Central Government.' From 1-4-51 when this amendment came into force, the Calcutta High Court ceased to be a foreign Court with reference to a court in the Old Mysore State.
It is urged by the learned Advocate for the appellant that after this date, the decree in question can be executed in the Mysore State. He points out that the Full Benches of the High Courts of Bombay and Madhya Pradesh have held in the cases above cited that the impediment for execution has been removed by the coming into force of the Constitution and that the decrees have become executable. It is further urged that since the Mysore Civil procedure Code has been repealed, the bar of execution on the ground that the Calcutta High Court was a foreign Court noe pioj he pioj he longer survives. On the other hand, it is urged by the learned Advocate for the respondent that in spite of the repeal of the Mysore Code of Civil procedure by Section 20 of Act II of 1951, proviso (b) to that section specifically lays down that the repeal shall not affect 'any right, privilege, obligation or liability acquired, accrued or incurred under any laws so repealed.' A question, Therefore, arises whether the respondent can take benefit of this proviso (b).
(16) The contention for the respondent is that it is that right of the judgment debtor to claim that a foreign decree shall not be executed against him in a court in the old Mysore State. This right had accrued to him prior to 1-4-51 when Act II of 1951 repealed the Mysore Code of Civil Procedure. The repeal therefore cannot affect, it is contended, this right of the respondent. In substance, he means that immunity from execution was the right that had accrued to him. A question, Therefore, arises as to whether an immunity amounts to a right. The definition given by Holland in his book on Jurisprudence is as follows:
'We may define a 'legal right' as a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others.' It cannot be denied that right is an interest which is recognised and protected by a rule of legal justice. 'Rights', says Iherring, 'are legally protected interests'. Rights are however creatures of law. Jurists divide rights into four classes:
(1) Right in the strict sense;
(2) Liberty;
(3) Power; and
(4) Immunity.
'Immunity' is that which other persons cannot do effectively in respect of oneself. In Salmond's Jurisprudence (Eleventh Edition 1957) while dealing with elements of the law and while discussing the legal rights, it is mentioned in para 80 as follows: 'The term 'right' is used in a fourth sense to mean an immunity from the legal power of some other person, just as power is a legal ability to charge legal relations, so an immunity is an exemption from having a given legal relation changed by another.'
(17) In the present case, what the respondent claims is an immunity from execution in pursuance of the decree of the Calcutta High Court inasmuch as it is an ex parte decree of a foreign court. This immunity, as discussed above, is a right which accrued to him prior to the repeal of the Mysore Code of Civil Procedure by Act II of 1951. By proviso (b) to Section 20(1) of the said Act, this right of the respondent will remain unaffected by the repeal. The result is that the respondent's right to contend that the decree is not executable against him in the court at Kolar is still available to him in spite of the repeal of the Mysore Code of Civil Procedure. A similar view has been taken by the Andhra Pradesh High Court in the case of Kishandas v. Indo Carnatik Bank Ltd. AIR 1958 Andh Pra 407.
In that case, it was held on a similar interpretation of the proviso to Sec 20 of the Act II of 1951 that the defendant in that case had acquired an immunity from execution of a decree passed against him on a foreign judgment by a court to whose jurisdiction he had not submitted. This conclusion was on the ground that the immunity amounted to a substantive right which was specifically saved by the proviso to Section 20. In Maloji Rao v. Sankara Saran, : AIR1955All490 , the Allahabad High Court also took the view that while repealing the laws of the Part B States Act II of 1951 preserved the rights which had been acquired by a party under the laws so repealed and also that to execute a decree is not a right conferred on the decree holder. The view of the full Bench of the Punjab High Court in the case of Firm Radhe Sham Roshan Lal v. Kundan Lal Mohan Lal, , is also similar. It was observed in that decision:
'The right to execute a decree and the right to raise an objection to a decree are substantive rights. The right of the judgment debtor to plead that a certain decree is a nullity cannot by any stretch of meaning be described as a procedural matter. It is a vested right in the judgment debtor and it cannot be taken away by a provision of law which is not retro-active. On the date the decree was passed the judgment debtor could have raised the objection that the decree was a nullity because it was a decree of a foreign Court. Any subsequent change in the law could not take away that right.'
(18) The question as to whether a 'vested right' was created in the defendant was considered by the Full Bench of the Bombay High Court in the case in : AIR1951Bom125 above referred to but it was with particular reference to S. 13(a) of the Code of Civil Procedure. The observations of Chagla C. J. on this point are as follows:
'In this case, although the Civil P.C. of Akalkot has been repealed, Section 13(a) has taken its place in identical terms and therefore whatever prejudice has been caused to the defendant has not been caused by the repeal of any legislation. The prejudice has been caused by an Act of State which altered the status of the defendant and made Akalkot Court a Municipal Court and made the defendant a citizen, whereas Akalkot Court before was a foreign Court and the defendant was a foreigner.' With great respect, I find considerable difficulty in agreeing with these remarks. The question of a 'vested right' does arise as discussed above by reason of the repeal of the old Civil procedure Code. It is at least so in the present case whether it was so or not in the akalkot case discussed in the Bombay judgment. That the provisions of Section 13(a) of the old Civil Procedure Code which has been repealed by Act II of 1951 are the same as those of Section 13(a) of the Indian Civil Procedure Code (Act V of 1908), is not a matter of much consequence. The real difficulty arises on account of the fact that the definitions of the terms 'foreign Court' and 'foreign judgment' in the repealed Code were substituted by new definitions by Act II of 1951. It is the definitions of these terms that make the two Courts which were foreign courts with reference to each other as domestic courts after the amendment. The Bombay case does not seem to take note of the amendment of these two definitions. On the other hand, it ascribes the prejudice to an Act of State.
(19) The view adopted by this Bombay judgment was followed in Moosakutty Hajee v. Pylotu Joseph, AIR 1952 Trav-Co. 89; Radhe Sham v. Firm Sawai Modi, (FB); Ram Dayal v. Shankar Lal AIR 1952 Hyd. 80 (F. B.); Dyna Craft Machine Co. v. Syed Jahangir Ali AIR 1953 Hyd. 19 and Gokaldas Naranji v. Dwarkadas Jethabhai, AIR 1954 Sau. 123(FB). Although different reasons have been given in these cases, all the Courts are of the view that the decree though inexecutable at the date of the decree can be executed after the Constitution on the ground that they are no longer decrees of foreign courts as both the Courts come within the territory of India. In view of the above discussion and in view of what is going to follow, it is difficult to accept the principle enunciated in these cases.
In almost all these cases, it has been generally conceded that before the Constitution, the decree was not executable being one of a foreign court (although there was no objection to its executability in the court by which it was passed).
It is thus evident that the non-excitability is on the ground that it was pronounced by a court which was not of competent jurisdiction in relation to the court where it has to be executed, as provided in clause (a) of Section 13 of the Civil procedure Code. Such a decree is an absolute nullity as pronounced by the Privy Council in the case in 21 Ind App 171. The decree which was a nullity when it was passed cannot subsequently become a valid decree. It is the competence of the court at the time of passing the decree that determines the validity of a decree. Subsequent change in the competence of the court cannot affect the validity of the decree after it is passed.
(20) Thus the material date for considering the validity of the decree is the date when it is passed and not when it is sought to be executed. A similar view was taken by the Supreme Court in the case of Kishori Lal v. Smt Shanti Devi, : AIR1953SC441 . On 29-3-46 an order under S. 488 of the Criminal Procedure Code was passed by the Court of a Magistrate of Lahore for payment of maintenance. Prior to partition of India, this order could have been executed under S. 490 Cr. P. Code in the court of the First class Magistrate at Delhi. It was contended that after partition of India, it became an order of a foreign court and could not be executed in the court of the Magistrate at Delhi. Their Lordship of the Supreme Court observed partition.'
'In the absence of a specific bar, an order which was good and competent when it was made and which was passed by a Tribunal which was domestic at the date of its making and which could, at the date have been enforced in an Indian court, does not lose its effect by reason of the From this it is clear that their Lordships were of the view that the material date is the date of the order. No doubt this is a converse case in that the territory in which both the courts were located in two different countries. But I do not see any reason why the underlying principle should differ. It is, however, necessary to mention here that, in making these observations, their Lordships were making their remarks with particular reference to applications under S. 490 of the Criminal Procedure Code. To that extent, the case cannot be said to be on all fours with the one under consideration.
(21) Almost as identical case as the present came up for consideration before the High Court of the former Mysore State. In the case of Subbaraya Setty and Sons v. Palani Chetty and Sons, AIR 1952 Mys. 69, it has been observed by Venkataramaiya J. (as he then was) as follows:
'It seems to me that the status to be taken into account for deciding executability is that at the time of the decree and not at the time of execution.'
A similar view has been taken under similar circumstances by many High Courts e. g., in Premchand v. Danmull, AIR 1954 Raj 4; Firm Kanhaiyalal Mohanlal Somani v. Paramsukh, AIR 1956 Nag 273; (FB); Lakshmichand v. Mt. Tipuri, (FB) and AIR 1958 Andh Pra 407.
(22) A Full Bench of the Madhya Bharat High Court (by majority) has, however, taken a contrary view. It came to the conclusion that a decree which was originally passed by a court in the territory formerly known as British India against a person who had not submitted to its jurisdiction could be executed after the Constitution in the Gwalior Courts (which were Native States before the Constitution). Samvastar J. Who gave the principal judgment of the majority observed:
'On the whole, I am, Therefore, of opinion that the validity of the decree is to be determined by reference to the law in existence on the date the court is called upon to execute on the date the court is called upon to execute the decree and not as held by the learned Judges of the Mysore High Court, by reference to the position of the Courts on the date on which the decree is passed.' It is further observed in that judgment that the view taken by the Mysore High Court in AIR 1952 Mys 69 has been endorsed IN AIR 1954 Raj 4 and : AIR1954Cal67 . The reasoning adopted by the Madhya Bharat High Court appears to be that the decree of a foreign court, not being an absolute nullity from its inception, becomes executable when both the courts come within the area of one territory and thereby cease to be foreign courts with respect to each other. In view of the foregoing discussion, it is difficult to accept the view adopted by the Madhya Bharat High Court. The judgment of a foreign court is invalid because the court is incompetent to pass it. The invalidity which thus attaches to a judgment or to a decree at the time when it is passed cannot be cured by events subsequent to the passing. The material date for considering the validity is therefore the date when it is passed since the competency of the court has to be determined as on that date.
(23) In view of the foregoing, I reach the conclusion that the decree in the present case, being on of a foreign court, was invalid and incapable of being executed in any court in the former State of Mysore and as such, it is inexecutable even after the Constitution.
(24) Lastly it was urged by the learned Advocate for the respondent that the execution of the decree is barred by limitation. The learned Advocate for the appellant contended that Art. 183 of the Limitation Act is applicable and that there is no bar of limitation. In view of my conclusion that the decree is otherwise inexecutable, it is not necessary to go into this question.
(25) In the result, the appeal fails. It is dismissed. Parties will bear their own costs.
Mir Iqbal Hussain, J.
(26) Having had the advantage of persuing the exhaustive judgment delivered by my learned brother with whose conclusions I agree, it was not necessary for me to deliver a separate judgment; but in view of the important point raised and in particular, the different views taken on the very same point by the different High Courts of India, I thought it feasible to add a few lines in support of the findings given by my learned bother.
(27) A reference to a few dates in connection with the present case is necessary. The ex parte decree was passed by the Calcutta High Court in favour of the appellant on 13-1-1950 in O. S. No. 3559 of 1949 against a non-resident foreigner, viz., the defendant respondent. The decree was transferred on 30-9-1953 by the Calcutta High Court to the Mysore Court. An execution application was filed on 25-1-1954 in the Subordinate Judge's Court at Kolar within whose jurisdiction the defendant respondent permanently resided. The Independence Act came into force on 15-8-1947 and it is only on 26-1-1950 that Mysore acceded to the Indian Union. The Indian Civil Procedure Code was applied even to Mysore State from 1-4-1951 and until then, the Mysore Court were guided by the Mysore Civil procedure Code, Mysore Act III of 1911.
(28) The short question to be decided in this case is whether an ex parte decree passed by the Calcutta High Court could be executed in the Mysore Courts particularly after the coming into existence of the Constitution of Indian which abolished the distinction between one part of India which was at one time known as British India and the other known as the Indian States ruled by the Sovereigns of their own. Thus, the merger of the Indian States in the Union obliterated the distinction existing previously between the two and if so, what is the effect thereof?
(29) There is a conflict of views between the different High Courts in India on this point. According to one view, the decree ceases to be that of a foreign court and hence even though the defendant has not resided within the jurisdiction of the court passing the decree and has not submitted himself to its jurisdiction the decree is a valid one and can be executed. According to the other view, distinction is drawn between cases where the decree is passed after the coming into force of the Indian Constitution and those prior to it.
If the decree is passed prior to the coming into force of the Constitution, such a decree is not executable even though the date of the execution application is subsequent to the coming into force of the Constitution. The latter category of cases give importance to the date of passing of the decree for the reason that under Private International Law, a decree which is invalid having been passed ex parte against non-resident foreigner does not cease to be a decree of a foreign court by reason of the subsequent accession of the State to the Indian Union.
I might straightway mention that courts in Mysore have consistently taken this view. Please vide 20 Mys CCR 214. Vaziambal v. Khondappa. 22 Mys CCR 188, Appajappa v. Papanna, 29 Mys CCR 143, Gurumoorthachari v. Thimmiah Chetty 34 Mys CCR 205. Easwara Dasaiah v. Mandasada Veerappa Sangappa and Co., which are all pre-constitution decisions. The same view is maintained in the decision given after the coming into force of the Indian Constitution as reported in AIR 1952 Mys 69. In that case there as a decree for payment of money passed ex parte by the court in Coimbatore (Madras State) against a resident in Mysore who had not submitted himself to the jurisdiction of the Coimbatore Court. The decree was passed before Mysore acceded to the Indian Union. It was held that that decree could not be executed by a court in Mysore even after accession of Mysore to the Indian Union on the ground that the decree was a nullity in Mysore as per principles of Private International Law and Therefore, it cannot be executed. His Lordship Venkataramiah J. (as he then was) has held as follows:
'In a series of case, this court has held that the judgment of a foreign court cannot be enforced in Mysore by making it the basis of a suit and that a decree of a foreign court cannot also be executed in Mysore when the defendant at the time of the institution of the suit was not a subject of or resident in, the country in which the judgment was obtained and did not submit himself to its jurisdiction and that the judgment of the foreign court is a nullity.'
In spite of the conflict of views in the decisions of the various High courts, I find one common feature or trend running in all of them. They are unanimous in holding that the principles of Private International Law govern the execution of ex parte decrees of a foreign court. Those principles are well stated by Cheshire in his book on 'Private International Law', Vth Edn., p. 608 under the heading 'Prerequisites of action ability and competence of foreign court.' The learned Author has stated as follows:
'The first and over-riding essential for the effectiveness of a foreign judgment in England is that the adjudicating Court should have had jurisdiction in the International sense over the defendant. A foreign court may given a judgment which, according to the system of law under which it sits, is conclusively binding upon the defendant, but unless the circumstances are such as in the eyes of English law, justify the Court in having assumed such jurisdiction, the judgment does not create a cause of action that is actionable in England.' In support of this proposition reliance is placed on the leading case on the subject decided by the Privy Council in the case in 1884 AC 670: ILR 22 Cal 222. The facts of the case are briefly as follows: The Raja of Faridkote obtained two ex parate judgments in two actions brought by him against the appellant's father viz. Bir Singh for sums amounting to over Rs. 76, 000/-. The appellant's father who had been a treasurer to the Rajan left Faridkote State five years before these actions and did not return there again. An action founded on the judgment was later brought against the appellant (who is the legal representative) in a court of Lahore where he was then a resident. This action was, Therefore, of a foreign judgment since Faridkote was a native State with independent jurisdiction. It was held by the Privy Council that the action brought at Lahore must fail; that the Faridkote Court had no jurisdiction on any recognised principle of Private International Law against a person who has left the territory and who was the domiciled subject of another State. Lord Selborne who gave that classic judgment which is followed both by the courts in India and England, states as follows: 'Plaintiff must sue in the court to which the defendant is subject at the time of the suit which as rightly stated by Sir Robert Phillimore (International Law. Volume IV S. 891) 'to lie at the root of all international and of most domestic jurisprudence on this matter.' All jurisdiction is properly territorial. Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it but it does not follow them after they have withdrawn from it and when they are living in another independent country............As between different provinces under one sovereignty (e.g. under the Roman Empire) the legislation of the Sovereign may distribute and regulate jurisdiction; but no territorial legislation can give jurisdiction which any foreign court ought to recognise against foreigners who owe no allegiance or obedience to the power which so legislates. In a personal action to which none of these causes of jurisdiction apply, a decree pronounced in absentum by a foreign court to the jurisdiction of which the defendant has not in any way submitted himself is by International Law an absolute nullity. He is under no obligation of any kind to obey it. It must be recorded as a mere nullity by the courts of every Nation, except (when authorised by special local legislation) in the country of the forum by which it was pronounced.'
(30) In the case of Emanuel v. Symon, (1908) 1 KB 302(Court of Appeal) it has been held by Buckley Lord Justice with whose opinion the other two law lords Lord Alverstone C. J. And Kandy. Lord Justice agreed, relying on the case in 21 Ind App 171, which I have quoted above, that courts in England 'enforce foreign judgments because those judgments impose a duty or obligation which is recognised but ex parte judgments of a foreign court to which the defendant has not submitted cannot be sustained. In that case, Channel J. who was the trial Judge held that by entering into a partnership in Western Australia, the defendant had impliedly agreed to submit to the jurisdiction of the Colonial Court as to disputes arising during the continuance and on the termination of the partnership and was therefore bound by the finding of that court even though the judgment was ex parte and the defendant had not submitted himself to the jurisdiction of that court. The court of appeal reversed this judgment on the ground that as per the principle of International Law such an ex parte judgment against a non-resident foreigner is unsustainable.
(31) Thus, the principle that has to govern the case under reference is that the competence of the jurisdiction of a foreign court is to be judged not by the territorial law of the foreign State but by the rules of Private International Law. Before Mysore state acceded to the Indian Union, until 26-1-1950, the Calcutta High Court was considered to be a foreign court and an ex parte decree passed by that court could not be executed in the Mysore State. So also an ex parte decree passed by the Mysore Courts could not be executed in the Calcutta courts.
The ex parte decree in favour of the plaintiff was passed, as I have stated above, on 13-1-1950. If so, when the decree itself is a nullity according to Private International Law, how could it cease to be a nullity on the date of its execution even if by that time, the Mysore State had become part and parcel of the Indian Union. To me it appears that the crucial point to be taken into court passing the decree is the date of the decree itself and not the date of its subsequent execution. If it is a nullity when it is passed, it continues to be a nullity and that defect is not cured by subsequent events.
(32) Moreover, the defendant gets a right to challenge such a judgment of a foreign court passed ex parte. There can be no doubt that that is a substantive right which is vested in the defendant. How could it be taken away or divested by express statutory enactment?
(33) Again while repeating the Code of Civil Procedure of the several states, Section 6 proviso (b) of Act III of 1951, Part B States (Laws) Act 1951 states as follows:
'The repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed.'
This also supports the proposition that a right acquired or an immunity from being sued which is in the nature of a substantive right vouchsafed to the defendant under the old Act is expressly retained unaffected.
(34) It is argued that full faith and credit clause of the Constitution viz. Article 261(3) applies to this case. Article 261(1) runs as follows:
'Full faith and credit shall be given through out the territory of India to Public Acts, records and judicial proceedings of the Union and of every State.'
Clause (3) runs as follows:
'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.'
(35) The point for consideration is whether the full faith and credit clause of the Constitution is applicable to the facts of the case. I may straightaway state that that clause has no retrospective effect. I am supported in this view by the decisions of the Supreme Court reported in : [1951]2SCR344 , Janardhan Reddy v. State of Hyderabad and : 1951CriLJ680 .
(36) Besides laying down the proposition that the provisions of the Constitution have no retrospective effective, Janardhan Reddy's case : [1951]2SCR344 supports the proposition that judgments passed by the Indian States were considered to be those of foreign States before the coming into force of the Indian Constitution. In that case, an application was made to the Supreme Court for leave to appeal against the judgment and sentence passed by the High Court of Hyderabad in the month of December 1949. That application was rejected by the Supreme Court even though it was filed after the Constitution came into force. Their Lordships of the Supreme Court held as follows:
'The territory of Government of H.E.H. the Nizam was never the territory of India before 26-1-1950 and the judgment and sentence passed by the High Court of H.E.H. the Nizam on 12th, 13th and 14th Dec. 1949 cannot be considered as judgment and sentence passed by a court within the territory of India.'
In the case of Ramalingam v. Abdul Wajid, AIR 1950 PC 64, it was held that with the passing of the Indian Independence Act 1947, 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 seems to be the consequence which followed the lapse of paramountcy of the British Crown. This case further supports the view that Mysore State was considered to be a foreign state.
(37) A 'foreign court' as defined by the Indian Civil Procedure Code means a court situate outside India and not established or continued by the authority of the Central Government. This definition has no application to the present case as the Indian Civil Procedure Code was made applicable to the Mysore State only from 1-4-1951. Till then, it was the Mysore Code of Civil Procedure which applied viz. Mysore Act III of 1911. That Code defines a 'foreign Court' as a court not established and continued by the State of Mysore and a 'foreign judgment' as the judgment of the foreign court. Under these definitions, the Calcutta High Court not having been established or continued by the Government of Mysore is considered to be a foreign court and hence its judgment is that of a foreign court. As such, the ex parte judgment passed by that court against a non-resident foreigner is not executable in the Mysore State.
(38) It has been argued before us relying on the Full Bench decision of the Bombay High Court reported in : AIR1951Bom125 that the impediment which was initially there is the decree being enforced as a decree of a foreign court disappears and that decree becomes enforceable on the merger of the State and the decree becomes executable under the Municipal Law and the principles of International Law do not apply there. Quite a number of courts in India have followed Bhagavan Shanker's case, : AIR1951Bom125 . Reference may be made to , AIR 1953 Sau 16, Patel Kala Bechar v. Patel Mohan Bhagwan AIR 1953 Madh 'B 225. Firm Lunaji Narayan v. Purshottam Charan: AIR 1952 Trav-Co, 89, AIR 1953 Hyd. 19, AIR 1955 Hyd. 184, Meherunnisa Begum v. Venkat Murli Manohar Rao and AIR 1950 Kutch 11, Khusal chand v. Vishanji Hansraj. These case take the crucial date to be not the date of the decree but the date of its enforcement. As I have said previously what was a void decree under the Private International Law at the time it was passed, cannot become a valid one because the Court which passed it ceased to be a foreign court.
(39) The Full Bench decision of the Bombay High Court was critically reviewed by other High Courts which have taken the opposite view. I would, in this connection, like to refer to one such case, viz., the Full Bench decision reported in . His Lordship Modi J., states as follows:
'According to the Bombay view this was really to say that a decree of this character was not a nullity & that it was a valid decree but that there was merely an impediment in the way of its execution. This is with great respect putting something in the months of their Lordships of the Privy Council who decided Gurudayal Singh's case which they never said or as I consider, they hardly intended to say. On the reasoning of the Bombay judgment one is tempted to ask if the decree was a valid decree, it should be binding everywhere in its due and lawful course and why at all should there be any impediment in the execution of the decree. Impediment or call it what you like, is traceable to the basic fundamental infirmity of such decrees according to the Private International Law, that such decrees are a nullity and the one exception only is that they may be executed where special local legislation so permits in the country where they were pronounced. That is the correct statement of the law as found in Gurudayal Singh's case.'
With these observations I respectfully agree.
(40) It was argued that Article 5 of the Indian Constitution introduces the notion of a common citizenship. Hence on the Mysore State acceding to the Indian Union, the subjects of the Mysore State (Part B States subjects) and those of Calcutta (Part A States subjects) and those of Calcutta sovereign State viz., the Republic of India and owing allegiance to the same. Common citizen-ship, and common allegiance do not ipso facto imply that the ex parte decree passed by the courts in Calcutta before the Constitution could be executed in the courts of Mysore. As an analogy, I may refer to courts of Scotland and Ireland in the United Kingdom. No doubt the subjects of those countries owed a common allegiance to the Kind of England, both those countries forming part of the United Kingdom.
Still the laws in both the countries were different and until the passing of the Judgment Extension Act and the Foreign Judgment Reciprocal Act, the decrees passed by courts of those countries were governed by the principles of Private International Law and if the decree was an ex parte one, it could not be enforced in the other country even though that decree was passed against a subject owing common allegiance. In my opinion, the circumstances of common citizenship or common sovereignty do not enable a person obtaining an ex parte decree against a non-resident defendant to execute the same as against a defendant in the country in which he is resident. That state of affairs continues even though at a later time, the defendant is subject to common citizenship.
(41) Again, Article 5 of the Indian Constitution came into force on 26-1-1950 and hence at the time of the execution of the decree, there was no common citizenship between the defendant who was a resident of the Mysore State and the plaintiffs who are residents of Calcutta.
(42) Article 1 of the Constitution provides that India shall be a Union of States and the territory of India shall comprise of 'the territories of the States as well as other parts mentioned in the First Schedule of the Constitution. It is difficult to say that the element of foreigners as between the Courts of the Federating States is destroyed thereby. The Constitution of India is essentially based on a federal pattern, though a unitary shape is given to it. In its wisdom the Constitution making body vested large powers in the hands of the centre. Still the judgment of a federating unit as to whether it is of an independent jurisdiction will have to be decided with reference to the law in force in the state where execution in sought. Moreover Article 1 of the Constitution came into operation 26-1-1950 exactly thirteen days after the passing of the decree by the Calcutta High Court.
(43) Taking into consideration the several decisions as well as the principles of Private International Law, I come to the conclusion that the ex parte decree of the Calcutta High Court cannot be executed against the defendant in the Mysore State. Hence the appeal fails and is dismissed but in the circumstances of the case I order that each party shall bear his own costs of this appeal.
(44) Appeal dismissed.