Shaligram v. Daulat Ram

JU.FUR, J.-This is an appeal on a certificate of Kapur J. the High Court under Art. 133(1) (c) of the Consti-tution against the judgment and order of the· High Court of Bombay. The appellant was the judge-ment-debtor and the decree-holder is the respondent.

The decree was passed in August 26, 1931 in Summary 8uit No. 3437 of_ 1930 by the High Court of Bombay against three defendants: who were resi-dents of Parbhani district in the former State -of Hyderabad. Before the decree was passed the appel-lant had applied for leave to defend and leave was conditionally grnnted on his depositing Rs. 5,000/- within four weeks. This, he did not.do was and on his failure to do as an ex-parte decree granted for Rs. 52,032-7-0 including costs and future interest at 6% per annum. The appellant did not file any written statement. The decree was transferred for execution to the District Judge, Bhir, in Hyderabad States. The respondent took out execution on June 18, 1954 in the Court of the District Judge, Bhir, to which o bjeotion was taken by the .appellant, imer alia, odn. t~e grofunhd thBat hbe hadH~oht suCbmittedhto the juri-s 10tion o t e om ay 1g ourt w ioh was a foreign court; and therefore the decree was a foreign decree and could not be executed in the Court at Bhir. This objection was overruled. Against that order appeal was taken to the High Court and it was held by that Court on July 29, 1958 that the appel-lant had submitted to the jurisdiction of the Bombay High Court and the appeal was therefore dismissed and the order of the Executing Court upheld. The ·

576 SUPREME OOURT REPORTS [UHl81

llHt Letters Patent appeal againat that judgment was .r-

diemiBBed in limine on Ootober 24, 1958. It is agai· llllt that order that the appeal has been brought OJI the certificate or the High Court under Art. l33(l)(c).

A person who appeal'IJ in obedience to the pro-cel!8 of a foreign Court and applies for leave to de-fend the suit without objecting to the jurisdiction of the Court when he is not compellable by law to do so must be held to have voluntarily 1ubmitted to .._ r jurisdiction of 1uch Court Shaikh Atham Sahib v. DafJUd Sahib(l). Therefore it cannot be said that thiB decree suffered from the defects which a foreign ex·parle decree without such submission would suf-fer from. The order for transfer was made at a time when the Indian Code of Civil Procedure beoame applicable to the whole of India including the for-mer territories of Hyderabad State. The order of tran11fer waa tlaerefore valid and effective and the decree could therefore be executed.

The appeal, in our opinion, i& without merit and is therefore dillmisaed with 001ts.

Appeal di.!mis&ed. (I) (1909) J.L.R. 32 Mad. ~.