Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Constitution of India - Art. 261 |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Foreign Decree—Decree passed in Gwalior in November 1948—Transfer for execution to U. P.in September 1951--Execution application in U. P.—Maintainability of —“Civil Court in a Part B State,’’ connotation of -—Code of Civil Procedure, 1908 (V of 1908), SS. 2 (5), 2 (6), 18, 38, 39, 43 and 44—Code of Civil Procedure (Amendment) Act, 1951 (II of 1951)—Constitution of India, Art. 261 (8). The appellant instituted a suit for the recovery of money against the respondents in a Court in Gwalior State in May 1947. The respondents who were residents in U. P. did not appear before the court and in November 1948 the Gwalior Court passed an ex parte decree. On September 14, 1951, the Gwalior Court transferred the decree for execution to Allahabad, and on October 16, 1951, the appellant filed an application for execution of the decree before the Allahabad Court. The respondents contended that the decree being a decree of a Foreign Court to whose jurisdiction they had not submitted was a nullity and the execution application in respect thereof was not maintainable. Held, that the decree was not executable at Allahabad. Per Kapur, Ayyangar and Mudholkar, JJ.—The decree of the Court in Gwalior State sought to be executed was a foreign decree which not change its nationality inspite of subsequent constitutional changes or amendments in the Code of Civil Procedure. On the day on which it passed the decree the Gwalior Court was a foreign Court within the meaning of s.2(5) of the Code. None of the conditions necessary to give its judgment extra-territorial validity existed (i) the respondents were not the subjects of Gwalior; (ii) they were not residents in Gwalior at’ the time the suit was filed, (iii) they were not temporarily present in Gwalior when the process was served upon them, (iv) they did not select the forum which passed the decree against them, (v) they did not voluntarily appear before the court, and (vi) they had not contracted to submit to the jurisdiction of the By foreign court. The Gwalior court was therefore not a court of competent jurisdiction and its decree was a nullity outside the United State ( Madhya Bharat ) of which Gwalior was apart on the date of the decree. The United State did not become a part of the “territory oi India” till the Constitution came into force. The effect of the judgment obtained did not change with the constitutional changes unless there was some specific provision to that effect. The decree was foreign when it was born and it continued to be so as there was no process or procedure for its becoming a naturalised Indian decree. Clause 20 of the Adaptation Order, 1950 preserved the rights and liabilities under the decree as they were before the Constitution came into force. It was not correct to say that the decree which was a nullity before the Constitution ‘came into force suffered only from the defect of unenforcibility by execution; s. 13 of the Code created substantive rights and defences which were open to the respondents under that section were not taken away by any constitutional changes. The Indian Code of Civil Procedure was made applicable to Madhya Bharat by Act Il of 1951, which came into force on April 1, 1951. Under s. 20 of that Act, which preserved the rights and liabilities of parties accrued under the decree passed previously, the decree passed by the Gwalior Court continued to be enforceable in Madhya Bharat. But the decree could not be validly transferred for execution from Gwalior to Allahabad. Section 39 of the Code empowers the court which passed the decree to transfer it for execution to another court. The Gwalior court which transferred the decree in September 1951, when it was governed by the Indian Code, was a different court from that which passed the decree under the Local Code, and was not the court which passed the decree within the meaning of S. 39. Sections 37 to 42 of the Code deal with execution of decrees passed by the courts governed by the Indian Code. The decree could not be executed under the provisions of s, 43 of the Code at any time. After its adaptation in June 1950, 8. 43 applied to “a decree passed by a Civil Court in a Part B State”. There were no Part B States at the time when the ‘decree was passed and these words could not be read as “‘a decree passed by a civil court in what became a Part B State”.. Nor could the decree be executed under s. 44 as that section was also inapplicable to this decree. Article 261 (3) which provides that the final judgments or orders of Civil Courts in any part. of the territory of India shall be capable of execution anywhere within that territory is inapplicable to the decree of the Gwalior court as the provision is prospective and not retrospective. Per Sarkar and Das Gupta, JJ.—Even in the decree passed by Gwalior Court was not a foreign decree the Allahabad Court had no power to execute it either under s. 38 or under ss. 43 or 44 of the Code of Civil Procedure. Section 38 provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. The Allahabad Court was not the court which passed the decree. Section 39 empowers the court which passed the decree to transfer it for execution to another court. The word ‘‘court” in the phrase “dourt which passed the decree” in s. 39 contemplates only courts governed by the Indian Code of Civil Procedure. The Gwalior Court which was governed by the Gwalior Code when it passed the decree had a distinct identity from the court at Gwalior after it came to be governed by the Indian Code. The Court which transferred the decree was accordingly not the court which passed the decree and the order of transfer was not a valid order. Section 43 of the Code provided for the execution of decrees passed by the Civil Courts in places where the Indian Code did not extend. The decree of the Gwalior Court did not fall within this section as it stood before the Constitution. After the adaptation in 1950 the section applied to a decree passed by a Civil Court in a Part B State’ These words could. not be read as “by a civil court in an Indian State which has. later been included in a Part B State. The Gwalior Court which passed the decree was not a Civil Court in a Part B State. Section 44 was equally inapplicable to the decree. The section after adaptation in 1950 applied only to decrees of revenue courts. Before the adaptation it could apply only if there was a notification issued by the U. P. Government but no such notification was issued. |
Judge | Hon'ble Mr. Justice J. L. Kapur Hon'ble Mr. Justice K.C. Das Gupta |
Neutral Citation | 1962 INSC 178 |
Petitioner | Raj Rajendra Sardar Maloji Marsingh Rao Shitole |
Respondent | Sri Shankar Saran And Ors. |
SCR | [1963] 2 S.C.R. 577 |
Judgement Date | 1962-04-30 |
Case Number | 24 |
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