Raj Rajendra Sardar Maloji v. Sri Shankar Saran and Uh.S.

Kapur, J. The .Judgment of Sarkar and De.a Gupta, JJ., was delivered by Das Gupta, J.

KAPUR, J.-This is an appeal age.inst the Judgment and order of the High Court of Allahabad holdin& that the execution of the decree passed by the Additional District Judge, Gwalior, dated November 18, 11148, in favour of the appellant against the respondents wa.a not excouta.ble at Allahabad. The appellant in this oourt is the deoree holder and the respondents are the judgment debtore.

For the decision of this appeal it is necessary to deal with the various Statutes, Order!' and agreements as a result of whioh the eretwhile Indian State of Gwalior became a pa.rt of tho teritories of the Union of India. governed by one Civil Procedural law. It will also be neceasa.ry to refer to the various changes in the law of oivil procedure applicable at the various eta.gee of the litigation leading to this appeal.

We shall first deal with the integration of the Indian Stat11 of Gwalior with the Indian Union. Upto August 15, 1947, i.e. before the independence 1962 of India under the Indian Independence Act (10 & 11 Geo, Ch. 30) Gwalior was what was termed Raj qajtntlra SardGr Msl,j& Ma1stnrh under the Government of India Act of 1935 an Boa '· Shteol Indian State and its Courts. were •foreign courts' SAanlisr Saran within s. 2 ( 5) of the Indian Code of Civil Proce-dure. After independence by s. 7 (i) (b) of that Act the suzerainty of the Briti~b Crown lapsed and so also all treaties, agreements and obligation which had previously .been entered into ·between the Rulers of Indian States and the British Crown.

The second question can conveniently be dealt with at a later and appropriate stage.

By the Instrument of Accession which by August 15, 1947, (p. 36 of White Paper on Indian States) was entered into between the Ruler of the State of Gwalior and the Dominion of India certain subjects mentioned in the schedule to that lnstru· ment were transferred to the Dominion of India but Civil Procedure was not one of them. By a covenant signed in April I 948, the Rulers of Gwalior, Indore and certain other States in Central India formed the United State of Gwalior, Indore and Malwa which was termed United State (Madhya Bharat).. By a fresh Instrument of Accession executed on July 19, 1948, the United State acced-ed to the Dominion of India and when the Consti· tution came into force it became Madhya Bharat- & Part B State-and was governed by the provi· sions of the Constitution as applicable to such Statea. This then was the prooeSB of transforma· tion of the Indian State· of Gwalior inti) a part of the Republic of India.

On May 15, 1947, the appellant instituted a snit in the Court of the District Judge, Gwalior, for recovery of Rs. 6,92,236-15·0 against the respon-dents, who are the sons and legal representatives of the late Munshi Ishwar Saran. The writs of summons were served on the respondent& on

582 SUPREME OOURT REPORTS [1963]

190~ September 12, 1947, but they did not appear in the Roj Rojt'lir• Strrtl~ Court of the Additional District Judge who actually Malo;ii Marsingh tried the suit. On November 18, 1947, the trial

Bao SAJtole Judge ordflr\ld suit to pror.eed and on N ovem-

•• ex par/£ SAan.tar Sar• ber 18, 1948, the claim was decreed with costs and

,..,., J. interest. On August 9,"1949, the appellant made

an application to the Court of the .Additional Dist-rict Judge praying for transfer of the· decree for execution to the Court of Civil Judge: Allahabad, where the properties of the father of the respon-dents were situate. On April :!5, 1950, the Court passed the following order:- "I order transfer of this execution case, A certificate of transfer relating to non-satis-faction of decree be issued tn the Civil Judge, Ist Class, Allahabad, for execution proceed-ings. This execution cas(I be dismissed". On September 14, 1951, another order wao made sending the decree for execution to the Court of the Civil Judge, 1st Grade, Allahabad. Along with it a copy of the order dated April 23, 1950, was also sent. The order wa~ as follows :- "Order dated 14th September, 1951 for transfer of decree to another court for execution".

Whereas in the above mentioned case the applicant submitted that tho Judgment-Debtor resided or held property within the local limits of the jurisdiction of the court of Civil Judg~. lst Grade, Allahabad and prayed for the sending of a certificate to that court for execution of the said decree and it being consider11d necessary and proper, the said certificate be sent' to that court under Order XXI, Rule VI.

A copy of this order along with copies of decree, certificate of non-payment of decretal

amount and other orders passed in connection '1962 with execution be forwarded directly to the court of the Civil Judge, Ist Grade, Raj Rajendra Sard111 Maloji Marsingh .. Allahabad. Rao Bhitole Dated 14th September· 1951. · $hanka_r ·saran Enclosures:- Kapur J. 1. Certificate.

¶2Application of the decree 'holder 3. Copy of decree in the case.

¶4Copy of order, dated 25th April, 1950.

Sd. B. K. M:ehra ..

Addi. District & Sessions Judge, District Gwalior, Madhya . Bharat". .

The parties were not in accord as· to which of these orders was the real order for transfer. It is unnecessary to resolve this controversy because we shall proceed on the assumption that . the. ·order of transfer was the later OJ:le which the appellant has relied upon i.e. of Sep~ember 14, 1951.

On October 16, 1951, the appellant filed in the .

Court of Civil Judge, Allahabad, an Application for execution of the decree for realisation of the amount due under it which by then had amounted to Rs. 8,98, _,_i l!57-7-0. This was registered as.Execution lJaseNo.47

of 1951. The respondents filed their objections tinder s. 47 of the Code of Civil Procedure on February 8, 1952. They pleaded that the Gwalior Court was a Foreign Court, to the jurisdiction of which, they had not submitted and the decrefl was, therefore, an ab-solute nullity; that the decree was not iu accordance with law and that the application for exec:ution was not maintainable. By an order of the High Court under s. 34 of the Civil Procedure Code, the execu-tion case was transferred to the High Court and I Hr registered ae Extraordinary Miscellaneous Case Raj Rojatha Sla'in No. l of 1!!54. The matter was heard by Brij M •I-Ji U .. 1ia1A :Mohan Lal J., who hold that the decree was paeeed

Ru Bhfltl• by a Foreign Court, to the jurisdiction of which, SAlflllorSaraa the respondonds had not subsisted; that the decree

was not binding on the respondents and could not be executed in the territories ·of Uttar Pradesh. The execution application was, therefore, dismi88ed. On appeal a.go.inst that judgment the Appeal Court upheld the judgment of the learned Single Judge hol-ding that the rule in Sirdar Gurdial Singh v. Maha-raja of Faridkot (1) was applicable to the case; that Gwalior was a foreign State on the date of the decree and its eta.tus as a foreign Mate was not affected by the lndia.n Independence Act, 194 7, the Standstill Agret1ment, 1947, the First Instrument of Acceesion 1947, the 1948 Covenant by which the United State of Madhya Bharat which included Gwalior was formed, or the Second Instrument of Accession, 1948, and that Gwalior State ceased to be a foreign State only on the coming into force of the Constitution of India on Ja.nuary 26, 1950. It also held that the District Judge's court pa.ssing the decree W88 a foreign Court at the time of the suit. As the appellant had not submitted to the juriedfo. tion of the Gwalior District Judges Court the decree passed by it was an absolute nullity;that even if the Gwalior law authorised t.he pa.ssing of such a decree, the decree wa.e a nullity and it wa.e not correct to eay that a.e a result of the various constitutional ,_ changes, the impediment in the way of its execution wu removed; that there wa.e no provision of law by which & decree pa.seed by the Gwalior Court could be executed in Uttar Pradesh; that Art. 261 (3) of the Constitution wBB not retroactive and did not operattl on the decree in queetil'n to ma.ke it execut-able; that's. 43 of the Indian Civil rrocedure Code a.i 'it stood after the Amendment 'o Act II 0£1951 waa inapplicable; that the right resist t.he e:r.eou~

(I) ll•l I..• II I. A,. 171.

of the decree· on the ground that it was a-nullity - was not taken away by the palitica.I changes and, llaJ llOjalirtl S•rU.. therefore, the judgment of the lea.med Single Judge 111.i.}>.Jlanq1' was upheld. Against this judgment and Order the R .. 8/liltl~ v •. appellant has come in appeal · to this Court on II"""'"" - 8ar111 a certificate under Art. 133(i)(a) and (o) of the Constitution.

The vital question for decision is whether the decree passed by the Gwiillor Court .on November 18, 1948, was executable in the State of Uttar Pradesh which, was at one time,- a pa.rt of what was British India, Gwalior at the relevant time being a pa.rt ·of the United State aforesaid. For this purpose, the questions that arise a.re:-

¶1Was the decree a decree of a foreign

court?

¶2Could the Court at Gwalior order the

transfer of the decree for execution in the Allahabad Civil Court?

¶3If it could not, then was the decree execu-

table at Allahabad under ss. 43 & 44 of the Code of Civil Procedure? and 4. Could the respondents-judgment debtors

take an objection to the execution of the decree ori the ground that it was an absolute nullity, being the decree of a foreign Court? .

We shall first . enquire into the nationality of the depree passed m favour of the appellant which necessitates a determination of the Court passing the decree i.e, whether it. was or was not a Court falling within s. 2 ( 5) of the Indian Code of Civil Procedure (Act V of 1908) which shall hereinafter be termed the •Indian Code'.

At the t~e when the suit was broupt i. e,

586 SUPitlt;ME OOURT REPORTS (1963) IHI May 15, 1947, the definition of "Foreign Court" in 110; llojuut.a s_, s. 2(5) of the Indian Code was:- Jfolo;i Mar1fft1h

Rao "· Sllilole " •.<Foreign Court" means a court situate 8Mu .... su·in beyond the limits of British India which has no authority in British India and is not establish-ed or continued by the Central Government or the Crown representative."

As a result of the Adaptation Order of March 23, 1948, the definition was:- " "Foreign Court" means a court situate beyond the limitll of provinces which has no authority in the provinces and is not establis-hed or continued by the Central Government." By the Adaptation Order of January 26, 1950, there was a further change in the def:~ ition of "Foreign Court" and it then stood as follows:- " "Foreign Court" means a court situate beyond the limits of the States which has no authority in States and is not establi@hed or continued by the Central Gov~mment."

After Aot II ofl95l came into force on April 1, 1951 the section read as follows:- " "Foreign Court" means a ·court. ~1tuate outside India and not established or conti-nued b) the authority of the Central Govern-ment."

At the time of the pa88iog of the decree on Novem-der 18, 1948 the definition of the Foreign Court was as amended by the Adaptation Urder of March 23, 1948 i. e. a court situate beyond the limits of the provinces which means the provinces of what was British India and which had no authority in the provinces (of British IndiB) and was not established or continued by the Central Government. The court at Gwalior fell within this definition· and . therofore on a plain 1961 reading of the definition it was a foreign court .and Raj Rojendra S1rtI.1 a judgment passed by it wuuld be a foreign judgment Maloji Marsinih as detined in s. 2(6) where the expression "foreign Rao Shitole . "· judgment'' iS defined as the judgment of a foreign Shlnhar s.,an ·court.'"

KapurJ. · Under the India~Code the judgment obtained .

by the appellant in Gwalior court would be gover-ned by s. 13 of that Code ~nd its conclusiveness is governed by cl. (a) to cl. (f) of that section. The rules laid down in that section are rules of substan-tive Jaw and not inerely of procedure. It is to be noted that in the present case the respondents did not submit to the jurisdiction ofthe Gwalior Court.

In Halsbury'il Laws of England Vol. VIII, p.144, paragraph 257 (3rd Ed.) conditions necessary for giving jurisdiction to a foreign court are set out and· at ·1east one of them is required to be satisfied before a foreign judgment is regarded as having extra· territorial validity. Nooe of them was satis-fied in the present case .. Firstly the respondents were not the subjects of Gwalior; .they did, not owe any allegiance to the Ruler of Gwalior and therefore they were under nO' obligation to accept ·the judg· · ments of the courts of that Mate. Secondly they were not residents in that State when the suit was instituted. Thirdly . they were not temporarily present in that State when the process was served .

on them. Fourthly they did not in their character as plaintiffs in the foreign action themselves selected the forum where the judgment was given against them. Fifthly they did not voluntarily appear in that court. Sixthly they had. not contracted to submit to the jurisdiction of the foreign court. 1:he Gwalior Court therefore was not a.court of compe-tent jurisdiction. .The judgment of Gwalior Court was therefore a nullity . outside t4e United State .· (Madhya Bharat). See Gurdyal Singh· v. Raja

JHI of Faridkot (1 ). Lord Selborne there observed aa Bod BajeN/to '"""' follows:-

Malo;i II· s""°" rsiflih

11ao •• "Under these circumstances there was, SAIJll/rcu s • ...,,. in their Lordships' opinion, nothing to take this e&11e out of the general rule, that the KapurJ, plaintiff most one in the court to which the Defendant is Aubject at the f:ime of suit (" Actm sequitor farum rai"); which is rightly stated by Sir Robert Phillimore (International Law, Vol. 4, s. 891 to "lie at the root of all international, and of most domestic, jurispru-dence on this matter". All jurisdiction is properly territorial and "extra territorium jus dicenti, imprime non paretur". Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or tem-porarily resident within thEl territory while they are within it; but it does not follow them after they a.re living in another independent country. It exists always as to land within the territory and it may be exercised over moveables within the territ_ory; and, in questions of status or suoceBBion governed by domioil, it may exist as to persons domiciled, or who when living were domiciled, within the territory. As between different provinces under one severeignty (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 allegiance or obedience to, the power which so legislates". But it was submitted by the appellant that the Court at Gwalior .ceased to be a foreign court because firstly aa a consequence of the constitu-tional documents executed by the Rulers of Indian States the UniWl St.ate (Madhp. :BlulrM) had become .a. pa.rt of the Dominion of India. and, there-1961 fore a decree passed by a court of the State could &; Rajltldra SoldM not be the decree of a foreign court; secondly as a Maloji Jlarsingh result of the coming into force of the ·Constitution Rao.Blritoh v. of India what was United State (of Manhya Bharat) BhaMarB<f'on became a Part B State, of the Union of India and therefore a decree passed by the Gwalior ·Court KopvrJ. even though a nullity in the erstwhile province . of U. P. ceased to be so and took Indian nationality and thus bees.me executable in the State of U. P.

Thirdly it was submitted that the deoree passed by the Gwalior Court was a valid decree in the United State (Madhya Bharat) and therefore was .

not an absolute nullity but there was in impediment to its executability.which was removed as soonas the United State (Madhya Bharat) became a part of the Union of India and fourthly it was submitted that subsequent changes in the Indian Code consequent upan the promulgation of the Adaptation Order of January 26, 1950 under Art. 372 of that Constitution and subsequent amendment of the Order of June 5, 1950, whioh became retrospectively c:iperative from ·January 26, 1950 and by a subsequent Act (G'ivil Procedure Amendment Act (Act II of 1951 )) ihe _Gwalior Court became competent to transfer its decrees for execution to the Court at Allahabad; and under the provisions of the Indian · Code relating to execution amended from time to time the decree sought to . be executed became executable by the Court at Allahabad.

The first contention is unsustainable because the constitution.al changes did not effect any ohange in the status or nat~onality · of the Gwalior Court till after the passing of the decree of November 18, 1948 and there being no specific provision to the contrary those changes left the decree unaffected.

The United State (Madhya Bharat) had not become " pan of tbe Dom~on of lndia deapit.e ~ variOlla

constitutional documi·nts executed by the Rulers of Raj Bo.fmt/N S•dm the Indian StateR. The flffrot of these constitu· M•loji MotJi.ngll tional documents was examined and decided

Ru S/,iloll •• in Rao Shiv Baliadur Singh v. The Stare Shan'ar Sor n of Vindhya Pradesh(l); Virendra Singh v. The State of

Uttar Pradesh('} and Prem Nath Kaul v. The Stare of Jammu & Kasltmfr(').

In Rao Shiv Bahadur Singh's case it was held that in spite of'the Instrument of Accession by which all subjects enumerated in Lists I and III rf Sche· dule VII of the Government of India Act 1935 were handed over to the Dominion Government and in spite of the Covenant by which the Rajpramukh had declared that the Constitution of India which was to be adopted by the Constituent Assembly of India shall be tho Constitution for Vindhya Pradesh and specifically superseded and abrogated other con· stitutional provisions inconsistent therewith which were then in force in tho Statf', those arrangements brought about an integrated United State of Vind-hya Pradesh within the framework of the Dominion of India "but only by way of accession".

In Virendra Singh's case Bose J., observed as follows:- "Despite the readjustment, the sum total of the sovereignties which had resided in each (ruler) before the covenant now resided in the whole and its component parts; none of it was lost to the Domiaion of India". Ip. 4 l!J) A somewhat similar view was taken by the Court of Appeal in Sayco v. Ameer Ruler Sadiq Mohamrrw.d of Bahawalpur where an objection was ~ken by the Ruler of Bahawalpur State that he still retained his independent status and the State of Bahawalpur was not within His Majesty's Dominion

<1) (1953] l s.c.R. 415, 418, 419. (2) [19<9] Supp. 2 S.C.R. 275. (S) [l952J 2 Q. B. s~o. 394.

in spite of the Ruler of Bahawalpur having acceded 1962 to the Dominion of Pakistan. ~- s,,,,, Raj Rnjirnlra At the relevant date i.e. on November 18, Jlaloji Marsinth Bao •• s1.itole 1948, the various constitutional' changes did not affect the position and status of thE' United States Sll<m.l"" StmJn (Madhya. Bharat)1 which comprised Gwalior also; it IrlfJIUrJ. did not become a part of the Dominion of India but continued to retain its status. The United State (Madhya Bharat) was not cqmprised in the "Terri-tory of India" till after tht'i Constitution came into force on January 26, 1950. This Court has held that the Constitution is prospective and not retros'.

pective: Janardhan Reddy v. The State of Hyder<;1· · bad('); Lachamanilas Kewal Ram Ahujav; The.State of Bombay (2 ); Keshavan Madhva Mel'I01i v. State of Bombay(•). Before the Constitution, Madhya Bharat was not a Part.B St~te but becam~ one ail a conse-quence of the Constitution. Therefore the decree which was sought to be .executed remained a decree of a foreign court as dt>fined i.li i!, .2(5) of the India.Ii Code then applicable a.n.d its judgment h~d to be enforced in the manner that foreign judgments were .enforceable·i. .e. either· as tit had to be brought on the l;asis of that judgment or ifthere was a pro-vision in the fo.dian Code it had to· be . executed in accordance with tliat provision; Mull's C. P. C. p.96;

Dicey, Conflict of Laws, Rule 162(7th Ed.). A Judgement which is governed by the rule in Sirdar Gurdyal Singh' s(') case not being' by a court of· .com- .. petent · ju.risdiction in the inter11·ational sense i. e ..

· according to the principles of International Law (Cl?-eshire, . Private International Law; pc 641, 6th Ed.) and the respoµdent not having submitted to its jurisdiction is a nullity outside, the te1,ritory of th!I. ctate in which the court passing the decree is situate. In that case it was sa.id:

(!) (19<1) S c, R. 344. 368, (2) (1952) S. c. R. 710. 730.

1192 SUPDEME OOURT REPORTs [1963]

1HI "Jn a pel'80nal action to which none of Raj ilolMdt• S...W these causes of jurisdiction apply, a decree M 11,jt' M•rli1111t pronounced in ah.!entem by a foreign Court, to

II. •• Slliul• the juriadfction of which the Defendant baa Slt.aJi.,StmJtt not in any way submitted himself, is by inter-national law an absolute nullity. He Is under no obligation of any kind to o'.>ey it; and it must be regarded as a. mere nullity by the Courts of every nation except (when author. ised by special local legislation) in the country of the forum by which it wBB pronounood". On the bBBis of auoh a decree therefore no action could be brought in what was British India. the decree being of a. Court in a.n Indian State.

By ol. 27 of the Adaptation of Laws Orrler ma.de on January 26, 1950, the previous operation of or anything done or suffered under any existing law or any ri~ht, privilege, obligation or liability already acquired, acorued or incurred remains un a.1focted. Thia Order was subsequently amended on June 5, 1950 and ol. 27 WBB numbered a.s 20 but there was no change in its language. Therefore by a change ma.de in the definition of 'foreign court' or other cha.nJleB introduced in the Indian Code the effect of and righte and liabilities under the decree sought to be executed, no fresh rights accrued to the appellant nor were any fresh liabilities incurred by the Respondents and if the decree waa a nullity outside the United State (Madhya Bharat) it remained a. nullity and Adaptation Order did not change its efficacy. The eft'eot of Act II of 1951 by whioh the Indian Code was applied to Madhya Bharat WIMI no different qua. the rights and lia.bili· 1ies under previous Orders and decrees; see s. 20 of that Aot which will be more fully discueaed later in this judgment.

In this connection we may refer to the judge· ,... ment of this Court in KW&ori Lal v. Shanti Devi('). There, an order under s. 488, Criminal Pro-IHI cedure Code, had been passed by a Magistrate at Raj Rajmt!ra Sariar Lahore before the Partition of India and th't.t was .Jlaloji .U llfain1h sought to be enforced under s. 490 of the Criminal Bao Shi'ole '· Procedure Code in a Magistrate's Court at Delhi. Shan/car Saran An objection was raised that the order was unforce-able as it was the order of a •foreign court' i. e. of Kaflur J. a court which had subsequently become a Pakistan Court. This Court held that the order was of an Indian Court when made and was at the time of its enforcement in the Delhi Court stm an order of a domestic tribunal. In the absence of any specific bar there was no reason why it should lose its Indian nationality simply because Lahore was no longer a part of India. Bose J., at p. 442 observed:-

" A number of enabling prov1s1ons were passed after the partition to meet certain special cases of this kind and of course, where there is specific legislation, effect must be given to it. But where, as here, there is noth-ing then in the absence of a specific bar we hold that an order which was good and com· petent when it was made and which was passed by a tribunal which was domestic at the date of its making and ,which could at that date, have been enforced in an Indian Court, does not lose its· efficacy by reason of · the partition".

This no doubt is the reverse case of the present one but. the principle laid down there that the effect of tho judgment obtained before the constitutional changes does not change unless there is a specific provision to that effect is applicable to this case also. Following the decision in Kishori lal'a(1) case Wanchoo J., (as he then was in Laxmi OMnd v.

MBt. Tipuri( 1) held that the crucial date for determin· ing the validity or enforcibility of an order or a

(1) A.l.R; 1953 S. C. 441. (2)1. L. &.1136 Raj. i36.

decree is the date when it waa made. Therefore if &J Ba..,,.. """" a decree was unenforceable in a particular court at

Mal•il Mor1U.,• thP time it waa passed, it would not l,iecome enforce-

Rao •• Sllil>I• able and valid simply because of the political Sn,dar Saran changes that took place unless there is a specific

provision to the contrary. The Calcutta High Court pv.J. in Shah Kanti Lal v. Dominion of India (1) hdcl that

t)lere is no retrospective effect of the Constitution including its definition of the words "Territory ,,f India" which hae the effect of converting what was a foreign judgment before the Constitution of India to a dnmestio judgment after the Constitution. The argument raised against the decree of the Gwalior Court being a nullity and not remaining so after the Constitution must therefore fail. · The next argument raised was that the decree pa&1ed by the Vourt at Gwalior on November 18, 1948, was not a nullity as under the Madhya Bharat Code of Civil Procedure it was a valid decree and there was only an impediment to its execut· ability which was removed as a consequence of the constitutional changes and the subsequent amend-ments of the Indian Code. Thie ~rgument is also not well founded. The decree was, in the inter-national sense a nullity outside Madhya Bharat even though aooording to the law in that State it was not so. We have already held that the decree was foreign when it wM born in Gwalior and it oontinued to be so as there was no process or pro-cedure for its becoming a naturalised Indian decree. The decree being a nullity outside the c.iurtll of the United State (Madhya Bharat), in the abeenoe of any specific provision, it could not be enforced in the United State (Madhya Bharat). It will not be correot to say that the decree which was a nullity before the Constitution came into force suffered only from the defeat of enforcibility by execution Sec-tion 13 creates substantive rights and is not merely r procedural and therefore defen<'es which were open 1962 to the Respondents wero not taken a.way by any Raj B11j1nba.Siif'dat constitutional changes in the absence of a specific Maloj1: .. N0,;ngh provision to the contrary. It is erroneous to say R_ao Sh(tole t.herefore t'hat the decree of the Gwalior Court was Sbanlcar Soran unenforceable when passed because of some impedi-Kapur J. ment which the suhequent constitutional changes bad removed; but that decree suffered from a more fundamental defect of being a nullity and the riglits a.nd liabilities created under it remained unaffocted by subsequent. changes. That, in our opinion, is the d'ect of the judgment of this Court in Kishori Lat's case(1). See also E. Radhesham Rosh.an Lal v. Kundanlal Mohanlal(') where it wee held that the right of the judgment-debtor to plead that the decree is a.. nullity, is not a procedural matter but is a vested right in the judgment debtor and it ca.nnot be taken away by the provision of law which is not retrospective. The Nagpur High Court in Ram Ki.shan Jankilal v. Beth •Harmukharai Laihmi N arayan(o) also held that a decree by the Indore High Court prior to the constitution was of a. court without jurisdiction a.nd merely beeause Indore became a pa.rt of the "Territory of India" after the Consti· tution did not retrospectively clothe the oourt at Indore with jµrisdiotion in order to make the decree which was a nullity,. into a vii.lid decree;

It was next argued that as a result of au bee· quent changes in the provisions of the Indian Code ·resulting from constitutional changes in the country, and amendments in the Indian Code the decrees of the Courts in Madhya Bharat became executable under the provisions of the Indian Code and the Gwalior Coul't could therefore transfer the decree for execution to the Court at Alla.ha.bad.

We shall t.herefore discuss the power of the Court at Gwalior to make the order of transfer dated September 14, 1951, assuming without decid-

11) A.LR. (1953) S.C.441. (2) l.L.R.1950Punj.434.

. (3) A.l.R. 1955 Naa. 103.

JHt ing that that order whfoh the appellant relies upon bj RejtMI• Sarthr was a judicial orders of transfer. At the time when

11.i.ji Mar.1~•· the suit was filed i.e. May 15, 1947, the law relating

Bat •• ShiJot. to oivil procedure applicable to Gwalior IState was IJlan,tur SotiM the Gwalior Civil Procedure l'ode (Gwalior Act I of

Samvat 1966 i. e. 1909). The relevant provisions of that Code dealing with transfer of decrees were 1!8. 227 a.nd 229 the former oorresponding to s. 38 of the Indian Code of Civil Prooedure and the latter to s. 39 of that Code. Sub-section (') of s. 229 correeponds to s. 41 of the Indian Code of Civil Procedure. By the (Madhya Bbarnt) Indian Civil Procedure Adaptation Aot (Madhya Bharat) Aot 70 of Sam vat 2006 or 1949 the Indian Code was adapted in Madhya Bharat (and thia !'odapted Code will here· inafter be referred to aa the Madhva Bharat Code). It was to come into force on Janu~ry 23, 1950, i. e. 15 days after its publication in the Gazette. By s. 3 the Indian Code was adapted, and it mutatis mutandis came into foroe in Madhya Bharat. It was also provided therein that whatever and when-ever amendments would be made in the said Indian Code they would be applioable to Madhya Bharat with neceSBary alterations. By s. 4 of Madhya Bharat Code above mentioned the previous Codea in foroe in the various States comprising Madhya Bharat were repealed and it was provided inter alia that all (lecrees pa.seed and judgments given in aooordance with the repealed Code as well as other aots done thereunder would have tl:e ea.me foroe a11 if they were iSBued-or made by a competent authority under the Madhya Bharat Code. Thus on January 23, 1950, the Indian Code with neces-sary amendments and adaptations was made appli· oalile to the State of Madhya Bharat but this was under the orders of the legislative authority of Madhya Bharat, which could only legislate for and in the territories of that State. As we have already said on January 26, 1950, the adaptation of Laws Order was promulgated under Art. 372 of the Constitution of India by the President of India. Under that Order existing laws were adapted as mentioned in the Schedule to the Order. Clause 27 of that Order provided that "Nothing in this Order shall affec~ the previous operation of, or anything J. duly done or suffered under any existing law or any Kapur right, previlege, obligation or liability alraady ,a.cqnired, accrued or incurred under any such la,w, or ·any penalty,. forfeiture or punishment incurred in respect of any offence already committed against any such law". As a result of this adaptation, eerta.in . changes were ma.de in the Indian Code·. But it did not affect any act already done or any liability already incurred. Thus it left the opera-tion of decrees previously passed unaffected. On June 5, 1950, the President promulgated the adapt-ation of Laws (Amendment) Order, 1950, but gave it a retrospective effect, so that it was deemed to have come into force on January 26, 1950. Under the a.mended ·Adaptation order certain changes were made in the Indian Code which will be discussed later in this judgment. . But. it did not affect the operation of cl. 27 above set out. Under the a.dap; ta.tion of Lawa (Third Amendmen\) Order of April 4, 1951, cl. .27 was renumbered as cl. 20. The Indian Code was amended by the Code of Civil Procedure (Amendment) Act, 1951, (II of 195l)which ca.me into force on April 1, 1951. By that Act, the _) Indian Code was extended to the whole of India

excepting certain territories mentioned in s. 2 which are not relevant for the purpose of this appeal. Thus it became applicable to Madhya Bharat which was then a. Pa.rt B State and consequently it became operative in what at one time was the Indian State of Gwalior. Section 20 of this Act provided for repeals and savings. That sec ti on runs as follows:-

Ji.fl S. 20 (I) "Repe11l.~ and Sa1;i11gs. If. immediately ?.oj I oj1ntlra Son/ar before the date on whkh the Aaid Code 4'f•lf?j• MarsingA comc·s inlo forcf in ~ny Part B ~tate,

.Hoo 8\tf.11 •• corrn~ponding to th• ~id Co<lP, that SAtinkor Soran Jaw shall on that datP stand n·pealed:

Ir ... J. Provided th .. t the repeal shall not affect- ( a) the previous operation of any law HO repealed or anything July done or suffered thereunder, or t (b) any right, priviltJgl', obligation or liability accrutd or incurred under any law so repealed, or ( o) any investig~tion, legal proceeding or remedy in resp<>ct of any surh right, privilege, obligation, liability, penalty forfeiture or puui~hment as aforesaid and any such invcstigat.ion, legal proceeding or remedy may be institu-ted, continued or enforoed, and any such penalty, forfeiture or punish-ment may be imposed as if this Act had not been paSBed.

(2) Subject to the provisions contained in subsection (I) notifications pub-lished, declaration and rules ma.de, placca appointed, agreementa filed, scales prescribed, forms framed, appointments made and powers con-ferred under any enactment hereby repealed shall, so far as they are consistent with the said Code, have the same force and effect a.a. if they had been respectively published, ma.de, appointed, filed prescribed, frn.m<>d and <>onferroo under the said Corle and by the an thority empo-wered thereby in suoh heh&lf.

(3) In every law or notification passed or 1962 issued before the commencement of this Act in which reference is made Raj Bajmdra Sard~r M aloji Jtar,ingh to or any Chapter or section of any Rao Shitole •• law hereby repealed, such reference SluJnhar Saran shall so far as may be practicable be taken to be made to the said Code or KapurJ. its corresponding Part, Order, section or rule." · _.-\ On the coming into force of Act II of 195 l _

aforesaid the rights that were acquired or accrued under the decree passed previously remained ' nimpaired and unaffected by the repeal and all rights and privileges acquired or accrued under the decree continued as before so also all liabilities or obligations incurred thereunder. And all such rights and privileges were enforceable as if the Act had not been passed. Therefore the decree of the Gwalior Court dated November ll, 1948 continued to. be enforceable as decree under the Madhya Bharat Codi'.

As we have said before we shall assume for the purposes of this appeal that the order of transfer by the Court .at Gwalior was the. one passed on September 14, 1951. By then by 1he operation of Act II of 195L thtire was one Civil Procedure Code for what was Gwalior and U. P. and indeed for the whole of India.

The question then is, was the order dated September l4, 1951, transferring the .decree for execution to the Civil Judge, Allahabad an effective order to which as. 38 and 39 of the Indian Code applied and could the decree so trapsferred be executed by the execution Court at Allahabad ? It was contended on behalf of the appellant that it could be executed as it was a decree which fell w~thin ss. 38 and 39 of the Indian Code, which the Gwa.lio~ Court had the power to transfer and

600 SUPREME OOURT REPORTS [1963]

which the Allahabad Court had under the law the lt.j R•jendl• Ba ri•r authority to execute. We think it is not so.

Jlaloji M•si'ttgll

Ru Sltil/• The main provisions for execution of decrees

v. a,re contained in Part II ••Execution" in the Indian Slla,,hr S•r•

Code and minor rules are contained in Order 21. ,..,,., J. 0( these provisions ss. 36 to 42 deal with Courts

which can execute decrees, can transfer decrees and the power of executing Courts in regard to trans-ferred decrees. The present ss. 43 to 45 deal with execution of decrees passed by Civil Courts in place to which the Indian Code does not extend, execution of decrees passed by-revenue courts, by the courts in the United Kingdom and other reci-proca.ting territory and execution of decrees in foreign territories.

Section 38 of the Indian Code provides that a decree may be executed by the Court which passed it or by the court to which it is sent for execution. Court which passed a decree is defined in s. 37 and s. 39 provides for the transfer of decrees for execution. It reads :- 8. 39 (I) •'The court which passed a decree may, on t.he application of the decree holder send it for execution to another Court".

Section 40 of the Indian Code provides for the transfer of a decree to a court in another State where it he.a to be executed in such manner as m-ty be prescribed by Rules in force in that state and s. 42 lays down the powers of the Court in ext'cuting transferred decree. It provides that the power of the Court in executing decrees shall be the some as if it had been pa11sed by itself. These are tho rele-vant provisions which deal with the transfer to and execution of decrees in .other courts and to courts of another State and powt>rs of such oonrts in exe-outiop and the procedwe to be followed by thein.

The jurisdiction of the Allahabad Court to execute the decree sent to it by the Gwalior Raj Court can be examined from two angles :,(1) Was &jtlllN,S.~r Ma/oji Marn.,i. the court at Gwalior a court which could under s. B .. •• Bhii.11 39 of the Indian Code transfer its decree to the Bllankar Saran Allahabad Court for execution; and (2) was the KapurJ, 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 trans-

feree court.

We are unable to aee'how the Gwalior Court could send under s. 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 govern-ed by the Indian Code was identical with the court which was governed by another Code. In our opin-ion, 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 function-ing under a differ1mt Code of Civil Procedure. The Court which ,made the order of transfer in Septem-' '

ber, 1951 ,was thus not the court which passed the decree within the meaning of s. 39.

The decrees in the sections dealing with exe-cution of decrees i.e. ss. 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_ie "whereas it is expedient td consolidate and amend the Jaws relating to the procedure of the Courts of Civil Judicature". Under s. 1 (3) as it exists now the Code 11xtends to the whole of India except certain Tribal Areas etc. Prevfous to the Amendment Act II of 1951 above referred to, s. 1 (3) of the Indian Civil Procedure Code re~ alt

Jfft S. I ( 3) "Thia sec:tion and sections 155 to 158 J f._il1'<ijmdr• SAFd.r <Jxtend to the wholo of India. except Part Ma/oji Mar•inili H States; the rPst of the Corle extends to I

lino Shii.h the whole of India. f'Xccpt Patt B States

v, and the District.ti"

b'hankar Saran ~oheduled

Thei efc.rc the Indian Code was not then applicable to those States which becamo Part B States as a result of the Constitution of India. "Decree" in the Indian Code is defined to mean the formal ex-pr~8sion of an adjudication whieh, so far RB regards the Court expressing it, conclusively detRrmint•s the rights of the parties with regard to all or any mat-ter~ 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 procee-ding which is instituted by the presentation of a plaint under s. 25 of the Code. Tht:rcfore the decree which is referred to in Pa.rt II dealing with cx~cution i.e. ee. 37 to 42 in a. decree which iii paee-ed in a suit commenced in the manner provided In the Indian Code, is conducted and decided under the provisions of tho Indian Code, and there is nothing in Act II of 1951 above reforred to which has changed that position.

Reference was made by counsel for the appel.- lant to sub-a. (2) of s. 30 of Act II of 1951 but that section does not apply to judgments and decrees passed but applies to the other matters therein mentioned e.g., notifications, dcclaratinn~, rules and appointments etc. It has no reference_ to decrees passed .or Orders made under the local Cod rs of Civil Prccedure. That section therefore is net. of any assistance to the appellant. Whatever rights or privileges the appellant had acquired or wbatnrr rights or ~rivileges had ~C<'1urd to him were c·on-tiuu1·d ~JHl rt cannot be satd that the d~cree pa~ft·d 1111der the Madhya Bharat Code became a decree under the Indian Code by virtue of s. 20 of Act II of 1951. On the other hand by cls. (b) and (c) of Roi Raj1rulra Sudar sub-s. ( l) of that section· the decree continued to be Malojf Marsingh .decree governed by the Madhya Bharat Code and Rao Shiloh execut11ble under it. The Gwalior Court therefore Shankar siran had no power under ss. 38 and 39 to · transfer the decr.ee of November 18, 19i8,.and consequently Kapur J, the Allahabad Court acquirednopowerto execute it.

It was next con.tended that if the Court at Gwalior that passed the decree had no power under as. 38 to 42 of the Indian Code to transfer the decree for execution and the· Court at Allahabad was not empowered to execute. that decree then.

the decree could be executed under the provisions of SS. 43 and 44 of the Indian Code. Of course the decree waa not sought to be e:X:Ejcuted -under either of these two provisions. But we shall exa-mine these sections of the Indian · Code as appli-cable to the Courts at Allahabad at the relevant time. Prior to the Indian Independence (Adapta-tion of Central Acts and-Ordinance) Order of 19!8 promulgated on March 23, 1948, which will here-inafter be termed the Adaptation Order I 948, the relevant portion of s. 43 was as follows:-

. Execution of decre.es passed by British Courts or in plaoes to which this part rloes not extend or inforeign . territ.ory.

Any decree passed by a Civil Court esta-blished in any part of British India to whioh the provisJ,ons relating . to execution do not extend or by any Court established or cont-inued by th11 authority of the Central Govern-ment or the Crown Representative in the territories of any foreign Prince or State, may, if it cannot be executed within the jur-i,sdiction of the court by which it pasaed, be -

,,,, 604 SUPREME OOURT REPORTS [1963)

executed in manner herein provided within &j Raj1Mrv.Sudar the jurisdiotion of any court in Britillh India·•. Jlaloji Jlani.,A

R .. SAll>I• After the Adaptation ()rder 1948 the provisions

v.

Shanlrar Soran essentially remained the same and there was only

a change in nomenclature. Instead of British Kapvr./. India the expression "the provinces of India" and

in plaoe of ''territories of any Foreign Prince or Ste.te" "in any Indian State" were substituted. After the coming into force of the Constitution Adaptation of Le.we Order of January 26, 1950 was promulga'.ed. There agaiu the change in a. 43 was nominal and in place of "Provinoe of India." the word "State" was substituted. Thus there was no change which is material for the present appeal till the Adaptation of Laws (Amendment) Order dated June 5, 1950, which had retrospective effect as from January 25, 1950 and a. 43 we.a amended as follows :- "E:cecutian of decrees passed by Gi11il Gourla in Part B States, in places to which thiR Part does not e:ctend or in forei,gn territmr.

Any decree passed:

(a) by a Civil Court in a. Part B State, or ( b) by a Civil Court in any area within a Pa.rt C State or Pe.rt B State to which the provisions relating to execution do not extend, or ( c) by a Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in a manner here-in provided within the jurisdiction o{ ui;y cc,OJt in the Stat•"

By the operation· of Act II of 1951, s. 43 was 1968 further amended and it then read as follows :- Raj Ila}mdm Sll<IGr Maloji Marringh . Execution of decrees paBSed by Civil Courts B .. Shilol• •• in places to which this Code doe,s not extend. · Shankar Saran

Any decree passed by any Civil Conrt, KopurJ. established in any part of India to which the provisions of this Code do not extend, or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot he executed within the jul'isdiction of the Conrt by which it was passed, be executed in the manner J herein provided within the jurisdiction of .J any Court in the territories to which this

Code extends".

Thus after the Constitution came into force by virtue of the Adaptation Order, a decree which was passed by a Civil Conrt in a Part B State could be executed in the manner provided, within the jurisdiction of any Court in what were the States of India i. e. Part A, B & C States.

It was submitted on behalf of the .appellant that the words in s. 43 of the Code ali adapted by the Adaptation Order of Jilne 5, 1950, "Any decree pa.seed · by a Civil Court in a Part B State~ ...J must be read as "a Civil Court in what became a

Part B State". We are unable to accept this con-tention. This would mean that the Constitution is retrospective. But it has been held by this Court that the Constitution is prospective. Madhya Bharat, before the Constitution of India i. e. before January 26, as 1950, was not a Pa.rt B State. It became one ·a. consequence of the Constitution.

As a matter of fa.ct there were no Pa.rt B States, before the Constitution. . 'l'herefore a deoree . pasBed,

606 SUPREME OOU.RT REPORTS ll963J

196t before the Constitution 1'y a Ci vii Court in t Madhya Bharat cannot be considered as a decree Raj Rujencl1a Sattl11r by Civil Court in a Part B State.

AlaJoj1 .1.\lursJWA a.

Rao Shitole

v. Aftor the Indian Code came into foroe in Shanl:iu Saran Part B States as a result of Act II of 1951 under

Kop1'r J, s. 43 only those decreas could be executed which

were p<tssed by Civil Courts established in Parta of India to which the provisions of the Civil Pro-cedure Code "do not extend" or by Courts est!\b· Iished or continued by the authority of the Centre.I Government outside India, and in none of these categories does the decree passed by the Gwalior Court after the establishment of Madhya Bharat fall. It was not a decree passed by a Court in a part of India to which the Indian Code "does not extond''. Those areas were set out in s. I (:J) of tho Indian Code. Therefore, undPr the provi-sions of s. 43 of the Indian Code of Civil Proce- <lure the deoree could not be executed.

We shall not takes. 44 of the Code:- S.44 "Execution of decrees pMSM by Caurts of Indian Stat,es.-The Provincial Goverment may, by notification in tho Official Gaze-tte declare that the decrees of any Civil or Revenue Courta in any Indian State not being Courts eatablished or conti-nued by the authority of the Central Government or of the t,'rown Represent-ative. or any cln.as of such decrees, may be executed in the Province as if they had been passed by Courts of British India.

By tho Adaptation Order of 1948 in place of the wm·ds "British India" "that Province" were substituted. By the Ad~ptation Order of January 26, 1950 tbe section read &II follows:-

Execution of decrees passed by Courts of 1962 Part B States.-The State Governme11t may by notification in the Official Gazette declare R ij Rajendra Sarda f' M al"oji Mor; ing'h that the decrees of any Civil or Revenue Rao Shitole Courts in any Part B State, or any dass of v. Shunkar Suran such decrees, may be executed in the State aa if they had been passed by Courts of Kapur J. that State". · This section was . again amended by the Adaptation Order of June 6, 1950, which gave it retrospective effect as from January 26, · 1950. It then read as follows:-

Exeoution · of decrees passed · by Reve:nue Court Part B States.-The Government of a Part A State or Part C State may by notifi-cation in the Official Gazette, declare that the decree of any Revenue Courts in any Part B State or any claBB of such decrees may be executed in the. Part A State or Part C State, as the case may be, as if they h11.d be.en passed by· Courts of that State''

Finally after Act U of 1951 which came into force on April I, 1Q51, s. 44 is as follows:-

Exeeution of decree,/! passed 1Yy Revenue Cq'Urts in plUOe,/J to which this Oode does net exte:nd.

The State .Government may, by· notification in the Official Gazette, declare that the decrees of any Revenue Court in any part of India to which the provisions of this Code do not ext-end ·Or any class of suoh de..,rees may be executed in the State aa if they had been paased ·by courts in. that State"

At the time when the decree was sought to be executed in the Execution Court at Allahabad, s. 44 of the Code was · what was

008 SUPREME COURT REPo.RTS [1963]

1961 substituted by Ao~ II of 1951 and that oertsinly Raj RajMtltt Sarhr could not he a.va.1led of by the appellant as it Ma~ji Ma,.Jiraih had no a.pplioati<>n fo decrees of Civil Courts

Rao Shilol1 •• and the argument in regard to decrees of Part B S/ianior Saran States is tho same as in tho case of e. 43 of the

Code whioh has been discussed above.

KapurJ.

It was next argued that in construing the words "the decree of a oivil court in a Part B State" we should have rega.rd to the faot that at the time s. 43 wa.1 amended in this manner s. 44 was also amended in suoh a way that it was no longer poBBiblc for a State Government to ieeue a notifi· cation-as it could have dontl hut for such amend· ment-declaring that the decrees of civil courts in an Iudian State might be executed in the State as if they ha.ve been passed in the courts of that State. It is said that this took away ~be whatever chance a decree made by an Indian State had of being made executable in other parts of India. So, it is argued we should interpret the words "the decree of a civil court in a Pa.rt B State" to inolude deer· eeR made by a civil court in what later became Part B State at a time when it was an Indian State. It could not, it is urged, hnve been the intention of the legislature in making the amendment of June 3, 1950 to tote.Hy destroy this oha.noe of execut· ability which was poBBible under the law as it stood before. We do not think this is a relevent con· sidera.tion. If the legislature had intended to save this chance of exeoutability under a possible future notification it oould have easily made the necessary provision. It has to be remembered that the right of executability which had attached to a decree on the basis of a notification already made would continue after the date of amendment. Only, if the Jaw had not been· changed as it was by the a.vnendment on June 3, 1950, there would have ex· ieted a cha.nee that the decrees of oourts of Inilia.n States in respect of which no notifiCa.tioli ha.d been 1962 _ ma.de under s. 44 could have become executa.·ble by

a. notification ma.de · in future thereunder. The Raj Rajendra Sa tdar Maloji Maraingh power to make such a. notification in respect of Rao Shitole •• decrees of civil ceurts in Indian States w.a.s how-Shankar Saran ever deliberately taken a.way and it is useless and irrelevant to worry about the resultant loss of Kop,,,.J, cha.nee of exeouta.bility by a possible future ·noti-fication that might have existed under the old la.w.

It was finally contended that by virtue of Art; 261, the decree passed by the Gwalior Court was executable. The first clause of Art. 261 pro-vides for full faith and credit to be given through-out the territory of India to judicial proceedings of the Union and of every State .. Clause 3 of Art.

261 was as follows:

l "Final judgments or orders delivered or

passed by Civil Courts in any pa.rt of the territory of India shall be capable of execut-ion anywhere within that territory aocording to law''.

The .first matter to be considered in regard to Art. 261 is that the Constitution is prospective a.nd not retrospective and it applies to deoreini which were pa.8Bed after the coming into force of the Constitution and not before and, therefore, neither clause· 1 nor clause 3 can have any . application . to the decree sought to be executed.

In our opinion, therefore, the deoree of the Gwalior Court sought to' be executed was a decree of a. foreign court whi<ih did not change its nation-ality in spite of subsequent constitutiona.l changes or amendments in the . Code. The Gwalior Court could not transfer' the decree for execution to the Court at Alla.ha.bad under lis. 38 and 39 nor oould _196~ the Court of Allahabad execute the decree without Raj Rajtnrfr4 ~auUr such transfer. The provisions of ss. 43 and· 44 of J,f aloji M•~rstn'h .the Code, also were not applicable in this case. .

Rao Slailol1

~ ' SAadarSaran .. ·For these reasons the appeal fails and is dis- ·1',

missed· with costs. . · K•;u• J • -: . . , .

Das Gupta J. • . 'DAS GUPTA, J.-This appeal is . by a decree-

.. holder ''whose application for execution of the · --·· · ·· decree has been unsuccessful: ··The decree ·was 1•

passed on .November 18, 1948, by the Court· of the . · DistriCt ex Judge, Gwalior, in Gwalior State. It was parte, the defendants-the respondents in the .Present appeal-who are residents 0· ,the United Provinces, now Uttar. Pradesh, not having appeared in the Gwalior' Court. On August 9; .1949, the 'decree-h'older applied to the Gwalior Court for transferring the decree to the Court of· the Civil ·.Judge; Allahabad, for execution. On ·April 25, 1950, the Gwalior Court passed an order for transfer of ·.the. decree for the execution· to the Civil Judge, 'First Grade, Allahabad. It needs to be mentioned that on the date when th" suit was instituted, i.e.,. May 15, 1947; the date on which the decree was . . . passed, November 18, 1948; the date on which the

application was :made for ·transferring the ·decree, . August 9, 1949; as also the· date April 2;i, 1950, . when the order, for transferring the decree was

made by the Gwalior Court, the Code of.Civil Pro-cedure which is in force in India did not apply to . the Gwalior Court. ·For, even though the Gwalior State had acceded to. the Domini<ra of India by an ··Instrument of'Acceasion by the fluler of the· State

made on August 15, 1947, and'after that the United "State (Madhya Bharat) of which Gwalior became a ·pa.rt by a covenant signed in April 1948, acceded to the Dominion of India. on July 19; 1948, ·by a fresh · ····instrument of Accession· and after the Constitutiori

. : of India came into'force this United States (Madhya 2 s.c.R. SUPREME COU!tt REPORTS 611 Bharat) became part of the territory of India as 1962 M1tdhya Bharat being a Part B State, the Indian Raj Rajetuira SarJar Code of Civil Procedure did not. become applicable M aloji M arsingh to the Courts in Gwalior till after the enactment of Raa 1-'hitole y, Act II of 1951 which came into force on April l, ShmeKar -- Soran 1951. From this date the Indian C de of Civil Procedure became applicable to the. Courts of Das Gupta./. Gwalior alRo. ·

We have already mentioned that on April 25, 1950, an order for transfer of the decree had been made by the Gwalior · Court. The further action which of has to be taken under O. 21 r. 6 of tbe Indian Code Civil Procedure by the court sending a decree for execution was not however ·taken till September 14, 1951. On that date an order was made by the Gwalior Court certifying that the amount of the decree had "not been paid or reali· sed by execution" and ordering that the certificate be sent to the Civil Judge, First Grade, Allahabad under O. 41 r. 6. This· orper closed with the sentence "a copy of this order along with copies of decree p11Ssed in connection with the i>xeoution be forwarded directly to the court of the Civil Judge,· First Grade, Allahabad." The application for execution was made · in the Court of the Civil Judge at Allahabad on Ootoher Hi, 1951. To this application the judgment-debtor raised objectioDI!

under s. 4 7 of the Code . of Civil Procedure. This application was ultimately heard by a single Judge of the High Court of Allahabad who dismiBBed the application being of opinion was that the decree obtained by the appellant a nullity and on that ground inexecutable at Allahabad.

This view was upheld by the same High Court on appeal.

Three questions have been raised in this appeal.

The first is: whether vis·a-vis the Allahabad Court the decreed sought to be executed was a

foreign decree which the Allahaba.d Court rightly considered to be a nullity and on that account R•j R•famd'• Sorclar inexecutable in Allahabad Courts. The second Mui.ji Mar•ingh

Rao •• Shilol1 quostion raised before us is whether, even Slttuabar Saran assuming that this was not a foreign decree v., the Allahabad Court was a Court to which it

GU/JtoJ. could be sent for execution within the meaning

of section :J7 and 31! of the Indian Code of Civil Procedure. Tb" third question is whether e. 43 or s. 44 of the Code of Civil Procedure made the decree executable in the Allahabad Courts. It is uonece88&ry in our judgment to invosti· gate the first question. The objection raised on the nullity of the decree could be raised c.nly in the Allahabad Court where the decree was sought to be executed. But before that question would arise the Allahabad Court must have power to execute the decre1Hiither on transfer of the d ecree to it under s. 38 or under tho provisions of s. 43 or s.44 of the Code. I!'or reasons to be presently stated, we do not think that there could be valid transfer of the decree to the Allah a bad Court or that it had any power to execute the decree under s. 43 or s.44. '•hat is why we think that the question how far the decree was a nullity does not fall for our decision in I.hill case. With other modes of enforcement of a foreign decree this case has no concern.

In solving the problems raieed by the eerond and the third queetionH it is neceseary fint to have an idea of the scbeme of the Indian Code of Civil i~ Procedure aa regards what courts in India can execute decreea. We find in Part II of the Civil Procedure Code which relates to the execution of decrees, onlv ea. three sections dealing with this matter. They are 311. 43 l\nd 44. Sections 38 provides that a decree may be executed either by the Court which p888ed it, or by the Court to which it is sent t s.c.R. . SUPREME OOUR'r REPORTS 613 for execution. Section 43 as it stands a.t present proviries that:- Raj Rojendr• 6ari• Maloji Marsinzh " Any decree passed by any civil court Rao Shilole established in any part of India to which the v. Sh a11kar -- St1ran provisions of this Code do not extend, or by any court est~blished or continued by the authority of Dai Gupta J. the Central Government outsirle India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed be executed in the manner herein provided within the jurisdiction of any court· in the territories to which this Code extends." We shall have later to refer to the several changes which s. 43 has undergone between the time the decree w1>s made and the present day. Section 44 provides that '•the State Government may, by notification in the Official Gazette, declare tlia.t the decrees of any revenue court in any part of India. to which the I provisions of this Code do not extend, or any class

of such decrees, may ·be executed in the State as if they had been paBSed by courts in that State."

This section has also undergone some change during the relevant period. To this change 'We shall later refer.

Let Ull first examine whether the Allahabad Court where the decree-holder is seeking to execute the decree is a court by which the decree can be executed under s; 38. Obviously, it is not the Court which passed the decree. The controversy js whether it is a Court to which the decree was sent for execution. The provisions for sending a decree for execution to another Court by the Court which passed the decree are contained in s. 39 of the Code of Civil procedure. According to the decree-holder the decree was sent by the Gwalior Court to the Allahabad Court by its order dated September 14, 1951. The Judgment-debtors'

contention on the other hand is that the only llltlt order of transfer was that of April 25, 1950. If the R•j Rr;je.,/r• Strrdnr ,Judgment-debtors' oontention is correot it would Alal1jl Marsiltflh follow tha.t there was no orrfor for transfer

Ra1 Sltitolt

v. under s. 3!l, aR on that date th!.' Gwalior Court Sh"ankar Sar m was not governed by the Indian Code of Civil Das tlupta J. Procedurt•- Learned Counsel for the decree-holder

appellant has contended that the directions that were given on September 14, 1951, really a.mount~d to an ordt'r for transfer under s. 39. According to tho lea.med Counsel the Indian Courts should ignore the or cl er of April 21i 1950, a.s non-exietent, so that it was open to thl'I Gwalior Court to make a fresh orcler in the matter on September 14, 1951, when it was governed by thl' Indian Code of Civil Procedure. Therefore, it is argued, though it might be true to say that if the order of April 25, 1950, had been made under the Indian Code of Civil Procedure, wh11,t w~s ordered on September U 1951; was merely a direction under 0 21 r. 6 of the Civil Procedure Code for the ministerial oa.rrying out of the order under s. 39 already made, that is, not the position here as the first order of April 25, 1950, was admittedly not under the Indian Code of Civil Procedure. The matter is by no means free from difficulty; but let us assume that this order of Sep-tember 14, 1951, was the order by which the Gwalior Court then governed by the Indian Code of Civil Procedure, purported to transfer the decree to the Alla.ha.bad Court for execution. The question still remains. Was it an order within the meaning of s. 39 of the Code of Civil Procedure? The a.newer to this question dflpends on weather the Gwalior Court which was functioning on Septemoor 14, 1951, was "the Court which pa.seed the decree."

Under the Indian Code of Civil Procedure the right to exeoute a. deoree a.rises as soon as a. decree is made. Immediately on the making of the decree the Court which pa.880d the decree has jurisdiction to execute it and at that very point of time that 1962 very Court has the jurisdiction to transfer it to another court governed by the Indian Raj Rojendta Bariat Maloji ,Jfarsinp Code of Civil F'rocedure for 'execution. Rao •• Shillll• It is reasonable to think that in speaking of ''courts" Shankar Saf'tln in the phrase, "courts which passed the decree''

s. 3 7, as well as s. 39 contemplate only courts nas Gupta J. governed by the Indian Code of Civil Procedure.

For, it is with the procedure of such courts only that this Code is concerned. On the date the pre-sent decree was made the Indian Code of Civil Pro-cedure did not apply to the Gwalior Court. In other words, it was not a "uourt" for the purposes of the Indian Code of Civil Procedure. Later on, it is true, from April 1951, the Indian Code of Civil procedure became applicable to the Gwalior Court.

It will be. proper, in our opinion, to think that the · court when governed by the Gwalior Code of Civil Procedure had a distinct identity from the court at Gwalior after it came to be governed by the Indian Code of Civil Procedure. The Court which made the order of transfer in September · 14, 1961 was therefore not "the Court which passed the decree" within the meaning of s. 39. It is clear therefore that the Allahabad Court had no power to execute the decree under s. 38 of the Civil Pro-cedure Code as there was no valid transfer to it from the "court which passed the decree."

It remains to consider whether s. 43 or s. 44 I are of any assistance to the decree-holder. Coming

to s. 44 first, it has to be mentioned that upto March 2l\, 1948 the section ran thus :-"The Provincial Government may by notification in the Official Gazette declare that the decree of any Civil or Revenue Courts in any Indian State, not being courts established or continued by the authority of the Central Government or of the Crown Repre-sentative, or any class of such decrees, may be eI.OOlltOO in \be Province as if they bad been paaaed

616 SUPREME OOURT REPORTS [19ll3)

-- Ifill by courts of British India." The section was mat.

erially amended on June 3, 1960 with retrospect· rloj R•j1aiba SarUr ive effect. from .January 26, 1950. On amendment M .i.;; .Vtrrsi"IJi

Ra. •· ~laitot. the sedion ran thus :-"The Government of a Pa.rt

A State or Part B States may, by notification in S"""""' SON• the Official Gazette declare tha.t the decrees of any D.s ll.Pto J. Revenue Court in any Part B State or any class of

such decrees may be executed in the Pa.rt A State or Part C State, as the <'aBe may be, as if they ha.d been passed by courts, of that State." It is obvious tha.t the decree·holder ca.n get no benefit from s. 44 after this amendment. If however there ha.d been a notification by the U. P. Government under s. 44' as it originally stood in respect of de<'reee of Civil Courts in Gwalior State the present decree would have been executable in Allahabad Courts on Ja.nua.ry 26, 1950, and that right of exeouta.bil· ity would ha.ve continued upto the present time. There was however no suob notifka.tion. It ia clear therefore tha.t s. 44 is of no assistance to the decree. bolder.

It is equally clear that s. 43 is als ; no assistance to him. Section 43 as it origins.Ji; stood was in these worde :- "Any decree pa.eeed by a.ny civil court establiRhecl in a.ny pa.rt of British India to which the provisions relating to execution do not extend, or by any court established or continued by the authority of the Central Government or the Crown Representative in the territories of any foreign prince or State outside India.. may if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner hnein provided within the jurisdiction of any court in British India."

The decree of Gwalior Court did not fall within tbis. The section wae amended after March 23, 1948, and for the words "in any part of British 1962 India" the -words "in any area within the provinces . Raj Raimtha S!Wdar of India'' were substituted. This change could not Malojl MMlint• however bring the decree of a Gwalior State within Baa Shih/• v. the sect.ion. The next change, which it is .necessary 9'nanla,. Saran to mention was made by the amendment of June 3, 1950, with retrospective effect from January 26, Dae Gupta J. 1950. On this amendments. 43 ran thus:-

"Any decree passed, (a) by a 1 ivil Court in a part B State or (b) by a civil court in any area within a part

A State or part C State to which the provisions relating to execution do not extend, or ( c) by a court established or continued by the

authority of the Central Government out side India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in-a manner provided within the jurisdiction of any court in the States,"

It has been strenu;iusly contended on.behalf of the decree-holder that rhe decree passed a by the Gwalior Court on November 18, 1948, is decree passed by a civil court in a Part B State. It is true that Gwalior became Part of a Part B State from January 26, 1950, and civil -0ourts in. Gwalior were from that 4ate civil courts in any Part B State.

Every decree made · by a court in Gwalior after January 26, 1958, would get the benefit then of s. 43 as amended. We are unable to see however how the decree passed by a civil court in Gwalior before that date could get any such benefit. The agree·· ment of the appellant's council that a decree paseed by a civil .court in Gwalior before Gwalior become jncluded in a Part B StAte ifl a decree palilled by a · J!Jt;;Z civil court in a Pa.rt B State really asks us to cons-

true the words "by a civ ii court in a. pa.rt B State" Raj Rajendra Sardor as by a "civil court in a.n Indian State which has -~Ulojl M111Ji11gh

Heu •• Shitolt later become included in a Pa.rt B :State." For such Shankt11 Saran a construction we cannot see any justification. It was urged by the learned Counsel that it DnJ C.uplo J 1 could not have been the intention of the legislature

to make any radical departure in the scheme of ma.king decrees of courts of Indian States execu-table in as courts in Indian provinces. It is pointed out that under s. 44 as it originally stood such a decree would have become executable in the courts of the provinces if the Pro >incia.l Govern· ment ma.de the neces8ary nutification under s. •14. The position was safe when there was such a notification. But, even when there was no such v:itification there was always the probability of such a notification being ma.de. Tlmt probability disa.ppe'a.rcd with the amendment of e. 4-1 on June 3, l!);Jl). It is reasunable to think, argues the lea.t·ned Counsel, that when at the same time s. 44 was thus being a.mended the legislature used the words: ··•any decree passed by a civil court in a. Part B Sta.to", its intention was to include within tho~e words "decrees made by a civil court in an Indian State which later become a Part B State." In our opm10n, tho words actually used by the legislature do not admit of such an interpretation. If it was the l~gislature's intention to preserve for the decrees of the Indian States this cha.nee of executability it could have easily made the nec!'s-sary provision by using suitable phraseology either ins. 43 ors. 44.

On a proper con8truction of the words that were ·actually used, viz., "any decree passed by a. civil court in a. pa.rt B State'". we see no reason to think that thl' legislature intended to use to mean "deoree11 made by a civil court in au Indian State which later became a Part B State... Sootiou 43 therefore as i• stood after the amendment of June 1962 3, 1951 is of no assistance to the decree-holder.

Raj Raj"end,a Sardar Section 43 was further amended by Act IC of Maloji Marsingh Rao Skito,/1 195! and the words as they stand at present have y already been set out. The appellant rightly does Shankar Saran not contend that s. 43 as it now stands applies to Das Gupta J. the present decrees ..

Our conclusion therefore is that the Allahabad Court bad no power to execute the decree either under sections 38 or under ss. 43 or 44 of the Code of Civil l'rocrdure. Therefore, eTcD if the deeree was not a foreign decree, the decree-holder's application for execution was rightly dismissed.

Tbe appeal is accordingly dismissed with costs.

Appeal dismissed.

HANSRAJ NATHU RAM 1962

v. A/1ri/ 30. l.ALJI itAJA & SONS OF BANK.URA

( J. L. KAPUR, A. K. SARKAR, K. c. DAS

GuPTA, N. RAJAGOPALA AYYANGAR and

J. R. MUDHOLKAR, JJ.)

Execution of Decree-Trans/e"' to a court UJ/iere Indian Cnde of Civil Proceaure not extentle<l -If exeoutabk-Foreign aecre.e-Foreigners Act, 1946 (31of1946), s. 2(a) (iii)-Coae of Civil Procedure (Act V of 1908), 81. 38, 39, 43, 44.

A decree passed in favour of the respondent by a Subordinate Judge of West Bengal was transferred for execu· lion ·on August 28, 1950 to the Court of the Additional District Judge of Morena in what was originally Gwalior State and subsequently became a part of the United States of 'Madnya Bharat· and aftn the Constitution State of Madhya Bharat. On the date when the decree wa. transferred, IJle