ORDER
P.R. Sharma, J.
1. This is an appeal under section 47 of the Code of Civil Procedure against the order dated the 30th of July, 1959 pissed by the First Addl. District Judge Gwalior, whereby he dismissed the present appellant's application for execution of a decree passed in his favour on 17-9-1946 by the High Court of Bombay.
2. On an application submitted by the decree-holder the Bombay High Court passed an order on the 1st of; November, 1951, for transfer of the decree for execution to the District Judge at Gwalior. It is not disputed that the defendant was at the time of the suit neither a resident of Bombay Presidency nor did he submit to the jurisdiction of the High Court at Bombay in the course of the trial of the suit. On these facts the questions which arose for consideration before the learned Addl. District Judge and which have to be determined in this appeal are (1) whether the ex parte decree passed by the Bombay High Court on 17-9-1946 could, after the coming into force of the Constitution of India, be executed by the District Court at Gwalior and (2) whether the execution application filed on 15-12-1954 by the decree-holder in the District Court at Gwalior is barred by limitation.
3. The Bombay High Court was in 1946 undoubtedly a 'foreign Court' in so far as the Courts situate in the territory of the former Gwalior State were concerned. As long as the Gwalior State was in existence the ex parte decree in the present case could neither be executed by the District Judge Gwalior, nor could it be held as conclusive between the parties thereto in a suit filed in the Gwalior Court on its basis. The question, however, is whether on the coming into force of the Constitution of India, the decree in the instant case, though passed by a Court which was at the time when it passed the decree a 'foreign Court' vis-a-vis the Court situate within the territories of the former Gwalior State, became executable by the Gwalior Courts by reason of the fact that after 26-1-1950 the High Court of Bombay could no longer be deemed to be a 'foreign Court' in so far as the Court of the District Judge Gwalior is concerned. The problem in its ultimate, analysis would resolve itself into the question whether for purposes of execution of such a decree the date of execution is material for determining the jurisdiction of the transferee Court to execute it Or whether a decree which was once a nullity in a foreign Court would, notwithstanding any subsequent political changes, always remain a nullity.
4. The question came up for consideration before a Special Bench of five Judges of the former Madhya Bharat High Court in. Brijmohan Bose v. Kishorilal Kishanlal, (S) AIR 1955 Madh-B 1 (SB). It was held by a majority that the validity of the decree is to be determined by reference to the law in existence on the date when the Court is called upon to execute the decree and not with reference to the position of the Courts on the date on which the decree was passed. Dixit, J., (as he then was) was of the contrary view. It was observed by the learned Judge that the repeal of the Code of Civil Procedure which was in force in Madhya Bharat on the date when the Indian code of Civil Procedure 1908 came into force cannot affect the judgment-debtor's right to urge that a decree is a nullity in relation to him by virtue of the 'definitions, of 'foreign Court', and 'foreign Judgment'' in the Gwalior Civil Procedure Code and the repealed adopted Civil Procedure Code and by virtue of the provisions of this Code that a 'foreign judgment' which had not been pronounced by a Court of competent jurisdiction was not to be conclusive. The decree in that case was passed by the Court of the Munsiff at Kashganj (U.P.) and was on being transferred by the Munsiff Kashganj on 8-2-1950 to the Sub-Ordinate Judge Lashkar sought to be executed in the latter Court.
5. In Ramkishan v. Harmukhral, (S) AIR 1955 Nag 103 an ex parte decree was passed by a Court at Indore against a resident of Madhya Pradesh. It was held by a Division Bench of the Nagpur High Court that the decree of the Indore Court against a non-resident foreigner who had not submitted to the jurisdiction of that Court prior to the passing of the decree was a nullity. Relying on the decision in Gurdayal Singh v. Raja of Faridkot, ILR 22 Cal 222 it was held that the fact thai the contract was made at Indore was not sufficient to clothe that Court with jurisdiction in an action 'in personam'. The principle laid down in this case lends support to the dissenting judgment of Dixit and Chaturvedi, JJ., in Brijmohan Bose's case, (S) AIR 1955 Madh-B 1 (SB) (supra). A decision by a Division Bench of the Nagpur High Court is binding on me, and even if I were to agree with the contentions, raised by the learned Counsel for the appellant before me, with which I shall presently deal, it would plainly be my duty to refer the case to a larger Bench, Since, however, I am in respectful agreement with the ratio decidendi of the dissenting judgment of Dixit, J., (as he them was) in Brijmohan Bose's case, (S) AIR 1955 Madh-B 1 (SB) (supra) and of Kaushalendra Rao and Bhutt, JJ., in Ramkishan's case (S) AIR 1955 Nag 103 (supra) it shall be sufficient for me merely to state my reasons for not accepting the contentions raided before me by the learned counsel for the appellant. In the first place the learned counsel submitted that Ramkishan's case, (S) AIR 1955 Nag 103 (supra) did not directly involve the question as to whether a decree passed by a Court which was a 'foreign Court' on the date when it passed is against a non-resident foreigner who did not submit to the jurisdiction of that Court till the passing of the decree could after 26-1-1950 be executed by a Court which On the date of the execution had ceased to be a 'foreign Court' qua the Court which had passed the decree. He, therefore, submitted that the decision of the Nagpur High Court does not directly apply to the present case and urged that it is, therefore, not binding on me. The contention of the learned counsel cannot, I am afraid, stand a closer scrutiny.
In Ramkishan's case, (S) AIR 1955 Nag 103 (supra) it was the defendant who had obtained an ex parte decree against the plaintiff: in a Court at Indore and the contention of the defendant was that the decree passed by the Indore Court was binding and conclusive between the parties to the suit This contention was repelled on the ground that a decree passed by a foreign Court against a non-resident foreigner who had not submitted to the jurisdiction, of that Court was a nullity and there being no provision which had made decrees which were ineffective in Madhya Pradesh prior to the Constitution, effective thereafter, the decree of the Indore Court continued to be a nullity. The case of Bhagwan v. Rajaram, AIR 1951 Bom 125(FB) was distinguished on the ground that it was a case of merger of one State with another. The learned Judges who constituted the Bench expressed their agreement with the contrary view taken in Subbaraya Setty and Sons v. Palani Chetty and Sons, AIR 1952 Mys 69 and Premchand v. Danmal, AIR 1954 Raj 4.
6. In the instant case the decree was passed by the High Court of Bombay and we are, therefore, not dealing with a case similar to the one which their Lordships of the Bombay High Court decided in Bhagwan's case, AIR 1951 Bom 125 (supra). It would thus appear that although the decision in Ramkishan's case, (S) AIR 1955 Nag 103 (Supra) was given in a different context the principles laid down therein are in consonance with the view expressed in the dissenting opinion, of Dixit, J., (as he then was) in Brijmohan's case, (S) AIR 1955 Madh-B 1 (S3) (supra), the facts of which offer a close analogy to the present case. In Firm Kanhaiyalal Somani v. Paramsukh, AIR 1958 Nag 273 it was observed by Deo, J., that the validity of the decree, must be examined with reference to the law. in force when it was passed. An ex parte decree was in that case passed on 9-2-1949 by a Court in the Madhya Bharat State against a permanent resident of Jharpa in District Hoshngabad. It was observed by the learned Judge that the decree which was a nullity and, therefore, inexecutable in an Indian Court did not change its legal character because of the provisions of Article 261(3) of the Constitution of India. The Civil Procedure Code Amendment Act No. 2 of 1951, not being retrospective in effect, it was further held that such a decree was not executable even after the coming into force of that Act.
7. The learned counsel contended that in arriving at his decision, in Firm Kanhaiyalal Somani's case, AIR 1956 Nag 273 (supra), the learned Judge did not take into consideration the various changes that had been effected in the provisions of Section 43 of the Code of Civil Procedure. It is, in my opinion, not necessary to deal in detail with the effect of those changes for the purposes of this decision; inasmuch as none of them were retrospective in nature. Once the principle of International law is accepted that an ex parte decree passed in an action 'in personam' against a non-resident foreigner who did not submit to the jurisdiction of a 'foreign Court' is a nullity and that by virtue of subsequent political changes a decree which was a nullity when it was passed and, therefore, inexecutable in a foreign territory cannot on account of subsequent political events become executable, the amendments made in the provisions of Section 43 of the Code of civil Procedure cannot furnish any ground for escape from that position.
8. Lastly the learned counsel for the appellant invited my attention to the following passage at page 425 of the English Conflict ot Laws (Third Edition) by Clive M. Schmitthoff :
''Moreover, an English judgment, which at the date of is pronouncement may not even he recognised in a foreign Court as evidence of the original cause of action, may, at some future time, become directly enforceable in that foreign country, by reason of an enactment of the foreign legislature giving effect to an International Convention similar to that concluded with Belgium and France'.
All that need be said in reference to this observation is that it can have no application to the present case. There is no direct provision to be found anywhere in the law of the Constitution of India which lays down that the decrees passed by the Courts situate in, the territories of the various provinces in former British India and the Indian, States shall be executable by all the Courts in India after the 26th of January, 1950. In an action in personam' against a non-resident foreigner the principles of International law afforded protection to the defendant from an ex parte decree passed against him being executed in any Court outside the territory in which the Court passing the decree was situate. Such a non-resident foreigner could by refusing to submit to the jurisdiction of a 'foreign Court', avoid the effect of an ex parte decree passed by it for all practical purposes. To hold that by virtue of subsequent changes such a decree could become executable in a Court qua which the Court passing the decree was on the date when it passed it a 'foreign Court' would obviously be against the established principles of International Law. Such a result could not, in my opinion, be achieved except through direct legislation on the point. The attempt, as in the present case, to reach such a conclusion by implication from the subsequent changes in the law and the political set-up, which have taken place after the 26th of January, 1950, would, in my opinion, be extremely hazardous and opposed to the interests of public justice.
9. For the reasons seated above, I am of the opinion that the decree in the present case is not executable by the District Court at Gwalior. In view of my opinion On this point it is unnecessary further to decide whether the execution was barred by limitation.
The result is that this appeal has no force and is hereby dismissed with costs.