Baboosingh Onkar Singh and anr. Vs. Bhagwanji Tejmal - Court Judgment

Newaskar, J.

1. This second appeal arises out of execution proceedings and raises the question regarding competency of execution of an ex parte decree passed by the Bombay High Court as a Court in British India against the defendants who were residing in the State of Barwani which was one of the Indian Princely States.

2. The Court of first instance held such a petition incompetent. But on appeal the learned District Judge Nimar-Barwani reversed that decision and held it to be competeat. This is a judgment-debtors' second appeal.

3. Material facts necessary for consideration of this question are as follows:

M/s. Bhagwanji Tejmal of Bombay obtained an ex parte decree from the original side of the Bombay High Court against the appellants in Civil Original Suit No. 55 of 1943 for Rs. 4761-7-0 inclusive of costs of 22nd of June 1943. The decretal amount carried interest at Annas eight per cent per month from the date of the decree till realisation.

4. The plaintiff decrees-holder applied for transfer of this decree to the Civil Court at Barwani and on 9th of August 1951 the Registrar of the Bombay High Court transmitted the decree together with ths certificate of non-satisfaction to the District Judge, Barwani, who received it on 14-8-1951 and in accordance with the rules in force sent it on to the Civil Judge First Class Barwani for further action by his order dated 25-10-1951. Ore that day i.e. on 25-10-1951 the decree-holder applied for execution in the Court of Civil Judge First Class Barwani claiming to recover Rs. 7142-2-6 inclusive of interest upto 22-10-1951. Notices wereissued to the judgment-debtors Baboosingh alias Baboolal and Surajsingh under Order 21 Rule 22 C. P. C. Surajsingh appeared and submitted objections to the maintainability of the execution petition on the ground that the decree in question was as against a non-resident foreigner who had not submitted to the jurisdiction of the Bombay High Court and consequently it was a nullity. It was also contended that decree was passed as far back as in the year 1943 and its execution in the year 1951 i.e. after more than eight years was barred by the law of limitation applicable in the region comprised in the State of Madhya Bharat.

5. The Court of first instance upheld the first of these contentions raised by the judgment-debtors and it held the execution petition as incompetent. It relied upon the decisions reported in Keshavan v. State of Bombay, AIR 1951 SC 128; Bhagchand v. Jeetbai, AIR 1951 Raj 147; Subramaniam v. Srinivasa, AIR 1951 Mad 289 and some other decisions. This decision was given on 5-5-1962. The decree-holder submitted appeal against that decision on 8-8-1952. Question of limitation was raised regarding this appeal. But the learned District Judge who heard the appeal was of the view that the appellant was entitled to present the appeal though it had become apparently barred by time. The appellate Court found that the decree-holder's counsel Mr. Ramchandra Gupta had become seriously ill just a few days before the decision and died on the day following the decision, that the decree-holder had learned about the fate of his execution application when he had come to inquire about it to Barwani on 4-8-1952, that thereafter he had soon applied for copy and had preferred appeal immediately on its receipt on 8-8-1952. According to the learned District Judge this was a fit case for the exercise of powers under Section 5 of the Limitation Act. The point regarding this is no longer in dispute.

As indicated earlier the learned District Judge on merits of the appeal held that the execution petition was competent. The learned Judge relied upon the Full Bench decision of the Madhya Bharat High Court reported in Brajmohan v. Kishorilal, (S) AIR 1955 Madh B 1 (FB) for taking that view, In that case it was held by the Full Bench that Section 20(c) Civil Procedure Code was a special, local legislation which empowered the Courts in British India to entertain suits against absentee foreigners, when cause of action had accrued against them within the limits of jurisdiction of such courts and that decrees passed by them on the strength of such cause of action even against an absentee foreigner, though are nullities in the international sense are not absolutely null and void but are enforceable in the country of the court which passed it It was further held that as long as the courts in British India which passed the decree and those which are called upon to execute it were courts of different nationality there be immunity to the judgment-debtors but that when due to political and constitutional changes both the countries or the States merge in each other the impediment in the way of execution is removed and the decrees became executable. Reiving upon the view thus expressed the learned District Judge directed the execution to proceed. Judgment-debtors thereupon appealed.

6. It is now contended before us on their behalf that the decree sought to be executed being against the appellants who had been non-resident foreigners when it was passed toy the Bombay High Court was a nullity in the International sense as laid down by their Lordships of the Privy Council in Gurdyal Singh v. Raja of Faridkot, 21 Ind App 171 and consequently was inexecutable. Reliance was also sought Jo be taken upon the recent decision of their Lordships of the Supreme Court in Moloji Narsingh Rao Shitole v. Shankar Saran, Civil Appeal No. 24 of 1960: (AIR 1962 SC 1737) which was decided on 30-4-1962.

7. In Civil Appeal No. 24 of 1960: (AIR 1962 SC 1737) (supra) an ex parte decree was passed on 18-11-1948 by the District Court of Gwalior of erstwhile Madhya Bharat State to the jurisdiction, of which the defendant Pandit Iswarsaran had not submitted. While right to execute the decree was-still within time the decree-holder applied for execution and prayed for transfer of decree for execution to the Civil Court at Allahabad. Pursuant to this application the executing Court at Gwalior on 14-9-1951 ordered the decree to be transferred as prayed for since by that time Indian Civil Procedure Code had become applicable to the whole of India excluding Part 'B' States by Central Act No. II of 1951. The competency of the aforesaid* order of transfer by the Gwalior Court was questioned before the High Court which had withdrawn the execution case for deciding the same in exercise of its extraordinary jurisdiction. The objection was upheld and the petition was dismissed. On appeal to Supreme Court the appeal was dismissed.

8. Their Lordships, while considering the contentions raised on behalf of the decree-holders, posed the following four questions as material and relevant. They were:

(1) Was the decree a decree of a foreign Court?

(2) Could the respondent judgment-debtor take an objection to execution of the decree on the ground that it was an absolute nullity, being a decree of a foreign Court?

(3) Could the Court at Gwalior order the transfer of the decree for execution in Allahabad Civil Court?

(4) If it could not, then was the decree executable at Allahabad under Sections 43 and 44 of the C. P. Code?

9. Their Lordships found that when the decree was passed on November 18, 1948 the Gwalior Court was according to definition contained in Section 2(5) of the Indian Civil Procedure Code, as adapted by the Adaptation Order of March 23, 1948, a foreign Court and its judgment a foreign judgment. Their Lordships then examined the constitutional changes brought about in India since the passing of the decree until it was transferred for execution to Allahabad Court and came to the conclusion that these changes had not the effect of bringing about any change in the nationality of the decree as being the decree of a foreign court vis-a-vis courts in Uttar Pradesh including Allahabad. Their Lordships in this connection considered four alternate contentions namely (I) that due to execution of the instrument of accession by the Rulers of the Indian States the Madhya Bharat had become a part of Dominion of India and consequently decree passed by a Court in Madhya Bharat ceased to be that of foreign court, (II) on coming into force of the Constitution the Madhya Bharat became a Part 'B' State under the Constitution and therefore the decree of Gwalior Court situated in Madhya Bharat though-it was a nullity in the erstwhile province of Uttar Pradesh ceased to be so and took up Indian nationality and consequently became executable, (III) the decree passed by Gwalior Court was a valid' decree in Madhya Bharat and consequently was not an absolute nullity but there was impediment to its executability which wag removed as soon asthat State merged and became part of India, and (IV) due to changes in the Indian Civil ProcedureCode from the time of filing of the suit and passing of the decree up to thei time of filing the execution petition in question in the AllahabadCourt, Gwalior Court became competent to transfer its decree for execution to the Court at Allahabad.

10. Their Lordships rejected all these contentions; with reference to first they held that despite the readjustment, the sum total of sovereignties which had rested in each ruler before the covenant vested later in the whole of the new State of Madhya Bharat and none had been lost to the Dominion of India. Their Lordships therefore held that on November, 18, 1948 when the decree was passed Madhya Bharat continued to retain its status and did not merge in the Dominion of India. Dealing with the second contention they held that although after the promulgation of the Constitution Madhya Bharat became a pact 'B' State in India, that is of one and the same nationality, yet since the Constitution was not retrospective the decree passed before its promulgation continued to remain a decree of a foreign court and since it was an ex parte decree passed against a non-resident foreigner could only be regarded as absolute nullity. Their Lordships dealing with the third contention held that it was erroneous to say that decree of Gwalior Court was unenforceable when passed because of some impediment which the subsequentconstitutional changes had removed. According to them it suffered from a fundamental defect of being a nullity and the rights and liabilities created under it remained unaffected by subsequent changes. Their Lordships then examined the fourth contention based on the effect of changes in the Civil Procedure Code. On review of these changes they concluded that despite these changes even up to passing of the Indian Civil Procedure Code (Amendment) Act No. II of 1951 the decree in question passed on November 18, 1948 continued to be executable as a decree under the Madhya Bharat Code.

Dealing with the question whether the Court at Gwalior on the date when the transfer order was passed on September 14, 1951 could act pursuant to Sections 38 and 39 of the Civil Procedure Code which was then applicable there and transfer the decree to a court in India governed by me same Code, it was further held that as the Allahabad Court governed by the Indian Code could under Section 39 execute only such decrees as are passed by the courts which are governed by the Indian Civil Procedure Code of 1908, it could not execute a decree passed by a court governed by another Code viz. by the Gwalior Civil Procedure Code or the Madhya Bharat Civil Procedure Code. It was consequently held that as the court passing the order of transfer on September 14, 1951 was not the court which passed the decree, it was incompetent for it to transfer the decree for execution to Uttar Pradesh Court.

11. These four contentions thus answered disposed of first three questions posed by them. The fourth question regarding applicability of Sections 43 and 44 of the Code on the assumption that the Court at Gwalior passing the decree was not a Court to which the Indian Code did not apply but was a Court of Madhya Bharat which became a Part 'B' State, they held that pre-constitution decree of this nature of Gwalior Court could not be a decree passed by a court in Part 'B' State and further that it was also not a decree of aCourt of the area to which the Indian Civil Procedure Code was inapplicable after Act No. II of 1951 had been passed. Section 44 too was held inapplicable in terms as it stood at the time the transfer order was passed. Their Lordships accordingly affirmed the decision passed by the High Court and held the execution petition to be incompetent. This was the majority decision prepared by Kapur J. According to Das Gupta, J., the material question sufficient to dispose of the case was the competency of the order of transfer and he agreed with Kapur, J. that it was incompetent for Gwalior Court to order the transfer of the decree nor could Allahabad Court, according to him, execute a decree which had not been passed when Indian Civil Procedure Code was inapplicable to the Court which passed it.

12. We are in the present case concerned with the view of their Lordships with reference to contention (IV) referred to above as also regarding the decree in question, when passed, being against a non-resident foreigner and as such a nullity.

13. Dealing with contention (IV) their Lordships in that case examined the question regarding jurisdiction of Allahabad Court to execute the decree sent to it by the Gwalior Court from two angles (1) was the court at Gwalior a court which could under Section 39 of the Indian Code transfer its decree to the Allahabad court for execution, and (2) was the decree sent for execution a decree, which a court governed by the Indian Code as was the Allahabad Court, such that it could be executed by the transferee Court. Their Lordships observed with a Reference to both these angles:

'We are unable to see how the Gwalior Court could send under Section 39 decrees which it had passed when it was not governed by the Indian Code. It is fallacious to think that the court at Gwalior governed by the Indian Code was identical with the court which was governed by another Code. In our opinion, the Gwalior Court which made the order of transfer of September, 1951, when it was governed by the Indian Code was a different court from what it was at the time it passed a decree when functioning under a different Code of Civil Procedure. The Court which made the order of transfer in September, 1951, was thus not the Court which passed the decree within the meaning of Section 39.

The decrees in the sections dealing with execution of decrees i.e., Sections 37 to 42 are decrees which were passed by courts governed by the Indian Civil Procedure Code because those sections relate to decrees passed in suit under the provisions of that Code. The preamble to the Indian Civil Procedure Code is 'Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature'. Under Section 1(3) as it exists now the Code extends to the whole of India except certain Tribal Areas etc. Previous to the Amendment Act II of 1951 above referred to. Section 1(3) of the Indian Civil Procedure Code reads as under:

Section 1(3).

This Section and Sections 155 to 158 extend to the whole of India except Part B States; the rest of the Code extends to the whole of India except Part B States and the Scheduled Districts.' Therefore the Indian Code was not then applicable to these State which became Part B States as a result of the Constitution of India. 'Decree' in the Indian Code is defined to mean 'the formal expression of an adjudication which, so far as regards the court expressing, it, conclusively determines the rights of the parties with regard to all or any matters in controversy in the suit.........'

It means, therefore, that a decree which is to be executed under the Indian Code by a transferee Court is a decree passed in a suit i.e., in Civil proceeding which is instituted by the presentation of a plaint under Section 26 of the Code. Therefore the decree which is referred to in Part II dealing with Execution i.e., Sections 37 to 42 is a decree which is passed in a suit commenced in the manner provided in the Indian Code, is conducted and decided under the provisions of the Indian Code, and there is nothing in Act II of 1951 above referred to which has changed that position.'

14. It is thus clear from the above observations that while considering the effect of various legislative changes in the Civil Procedure Code on the question of executability of a decree the matter is to-be viewed with reference to the competency of the court directing transfer of the decree to do so and to the competency of the transferee court to execute the kind of decree transferred to it for execution.

15. Following the above quoted view of their Lordships and applying the same to this case it seems that the transferor court in this case, which is the Bombay High Court was governed by the same Code both when it passed the decree on 22-6-1943 and also when it directed its transfer on 9-8-1951. Consequently the defect from which the decree in Sardar Moloji Shitole's case AIR 1962 SC 1737 (supra) suffered is not present in this case. Here the Court both when it passed the decree and when it passed the order of transfer was governed by one and the same Code namely the Indian Civil Procedure Code. The order of transfer is passed by the Court which had passed the decree. It could therefore be transferred for execution to a court governed by the Indian Civil Procedure Code. But when we come to the second aspect of the matter namely as to the kind of decree which is sent for execution it seems that the decree passed by the Bombay High Court was an ex parte foreign decree and in the matter of execution of such a decree by a court at Barwani, it has to be assumed by reason of Section 20(1) of the Code of Civil Procedure Amendment Act, 1951, that the new Code had not come into force and Barwani Court governed by the Madhya Bharat Code was being asked to execute, what according to that Code was a foreign decree. The Barwani Court in that case is incompetent to execute such a decree passed under a different Code namely Indian Civil Procedure Code. It is therefore clear that such a decree is clearly inexecutable by the Barwani Court having regard to the kind of decree which is sought to be executed. The result follows from non-restrospective character of the Constitution and also due to terms of Section 20(1) of the Civil Procedure Code Amendment Act of 1951 which has no application to any right, privilege, obligation or liability acquired, accrued or incurred under the Madhya Bharat Civil Prpcedure Code which was repealed by the Amendment Act referred to above.

16. Their Lordships had approved of the Full Bench decision of the Rajasthan High Court and particularly the view of Wanchoo, C. J., in Laxmi Chand v. Mst. Tipuri. ILR (1956) 6 Raj 236: ((S) AIR 1956 Raj 81) (FB). In that case the learned Chief Justice had held that the crucial date for determining the validity or enforcibility of an order or a decree is the date when it was made. The Rajasthan Full Bench virtually affirmed the view taken in Premchand v. Danmal, AIR 1954 Raj4. In the latter case the question was whether an ex parte decree passed by a court at Kurnool in Madras Presidency in 1948 against the subject of a former State of Sirohi in Rajasthan, who had not submitted to the jurisdiction of Kurnool court was a nullity after the promulgation of the Constitution. It was replied in the affirmative.

17. The circumstances of the present case are exactly similar. Their Lordships of the Supreme Court also approved of the view in Ramkishan Janakilal v. Harmukharai Lachmmarayan, AIR 1955 Nag 103 wherein the question was whether a decree passed by the Indore High Court prior to the Constitution was of a court without jurisdiction. It was held that it was so and that merely because Indore became a part of the Territory of India' after the promulgation of the Constitution did not retrospectively clothe the court at Indore with jurisdiction in order to make the decree which was a nullity, into a valid decree.

18. Having regard to the view thus expressed by their Lordships of the Supreme Court in Sardar Moloji Shitole's case, AIR 1962 SC 1737 and the decisions of the Rajasthan and Nagpur High Courts which they approved, it is clear that the view taken in the Full Bench decision of the Madhya Bharat High Court was not correct. The decision of the learned District Judge which followed that decision ought not to stand.

19. The appeal is therefore allowed and the execution petition of the respondent decree-holder is held to be incompetent. The appellants are entitled to their costs throughout.