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45. An exactly similar question arose in this Court in L.P.A. No. 24 of 1952 (F). The decree in that case was granted on 12-7-1947, by a Court at Nabha which was later Included in PEPSU, a Part B State, and that decree was sought to be executed at Simla after 26-1-1950 and the question was whether it was to be deemed the decree of a foreign Court or the decree of a Court in Part B State.

A Division Bench of this Court held that the decree was capable of execution at Simla as at the time of the execution it must be deemed to be the decree of a Court in Part B State. I was a party to that decision and having considered the arguments advanced in the present case I still think that our decision in Dalel Singh v. Shrimati Dhan Devi (P) was correct and that it fully applies to the present case. A distinction was sought on the ground that in the present case the decree was obtained ex parte and the defendants, who were not residents of Indore, never submitted to the jurisdiction of that Court while in Dalel Singh v. Shrimati Dhan Devi (P) it was not clear that the decree was not obtained after contest. This distinction, in my opinion, makes no difference in principle.

The question still is whether the decree is to be considered the decree of a foreign Court as It undoubtedly was at the time it was made or whether in view of the amendment of Section 43, Civil P. C. it is to be considered the decree of an Indian Court subsequent to those amendments. The fact that a decree may have been obtained ex parte or after contest does not, in my opinion, affect the matter, for the decree of a foreign Court whether ex parte or obtained after contest remains Incapable of execution, while on the other hand the decree of an Indian Court, whether ex parte or otherwise cannot be refused execution. No principle of international law is really involved in the matter and the question is fully covered by the provisions contained in the Code of Civil Procedure.

48. Mr. Mital for the judgment-debtors stressed the point that the decree in the present case was made by a foreign Court and against a nonresident defendant who had not submitted to the Court's jurisdiction and it was, therefore, in the eye of international law a nullity and it could, therefore, never be executed through an Indian Court.

As I have already pointed out, this consideration does not really arise in the present case, for if the decree sought to be executed is to be deemed the decree of a foreign Court, it is not capable of execution under the provisions of the Code of Civil Procedure and would not be capable of execution even if it were a decree obtained after contest.