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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 - 39 (1) 'The court which passed a decree may, on the 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 has to be executed in such manner as may be prescribed by Rules in force in that state and s. 42 lays down the powers of the Court in executing transferred decree. It provides that the power of the Court in executing decrees shall be the same as if it had been passed by itself. These are the relevant provisions which deal with the transfer to and execution of decrees in other courts and to courts of another State and powers of such courts in execution and the procedure to by followed by them.

Reference was made by counsel for the appellant to sub-s. (2) of s. 30 of Act 11 of 1951 but that section does not apply to judgments and decrees passed but applies to the other matters therein mentioned e.g., notifications, declarations, rules and appointments etc. It has no reference to decrees passed or Orders made under the local Codes of Civil Procedure. That section therefore is not of any assistance to the appellant. Whatever rights or privileges the appellant bad acquired or whatever rights or privileges bad accrued to him were continued and it cannot be said that the decree passed under the Madhya Bharat Code became a decree under the Indian Code by virtue of a 20 of Act 11 of 1951. On the other hand by cls. (b) and (c) of sub-s. (1) of that section the decree continued to be decree governed by the Madhya Bharat Code and executable under it. The Gwalior Court therefore had no power under as 38 and 39 to transfer the decree of November 18, 1948, and consequently the Allahabad Court acquired no power to execute it. It was next contended 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 as 43 and 44 of the Indian Code. Of course the decree was not sought to be executed under either of these two provisions. But we shall examine these sections of the Indian Code as applicable to the Courts at Allahabad at the relevant time. Prior to the Indian Independence (Adaptation of Central Acts and Ordinance) Order of 1948 promulgated on March 23, 1948, which will hereinafter be termed the Adaptation Order 1948, the relevant portion of s. 43 was as follows:-

For these reasons the appeal fails, and is dismissed with costs.
DAS GUPTA, J.-This appeal is by a decreeholder whose application for execution of the decree has been unsuccessful. The decree was passed on November 18, 1948, by the Court of the District Judge, Gwalior, in Gwalior State. It was ex parte, the defendants-the respondents in the present appeal-who are residents the United Provinces, now Uttar Pradesh, not having appeared in the Gwalior Court. On August 9, 1949, the decree-holder 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 the 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 25, 1950, when the order for transferring the decree was made by the Gwalior Court, the Code, of Civil Procedure which is in force in India did not apply to the Gwalior Court. For, even though the Gwalior State had acceded to the Dominion of India by an Instrument of Accession by the under of the State made on August 15, 1947, arid after that the United State (Madhya Bharat) of which Gwalior became a part 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 Constitution of India came into force this United States (Madhya Bharat) became part of the territory of India as Madhya Bharat being a Part B State, the Indian Code of Civil Procedure did not become applicable to the Courts in Gwalior till after the enactment of Act 11 of 1951 which came into force on April 1, 1951. From this date the Indian C de of Civil Procedure became applicable to the Courts of Gwalior also.
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 has to be taken under 0. 21 r. 6 of the Indian Code, of 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 realised by execution" and ordering that the certificate be sent to the Civil Judge' First Grade, Allahabad under O. 41 r. 6. This order closed with the sentence "a copy of this order along with copies of decree passed in connection with the execution be forwarded directly to the court of the Civil Judge, First Grade, Allahabad." The application for execution was made in the Court at the Civil Judge at Allahabad on October 16, 1951. To this application the judgment-debtor raised objections under s. 47 of the Code of Civil Procedure. This application was ultimately heard by a single Judge of the High Court of Allahabad who dismissed the application being of opinion that the decree obtained by the appellant was a nullity and on that ground in executable 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 Allahabad Court rightly considered to be a nullity and on that account inexecutable in Allahabad Courts. The second question raised before us is whether, even assuming.- that this was not a foreign decree the Allahabad Court was a Court to which it could be sent for execution within the meaning of section 37 and 38 of the Indian Code of Civil Procedure. The third question is whether a. 43 or s. 44 of the Code of Civil Procedure made the decree executable in the Allahabad Courts. It is unnecessary in our judgment to investigate the first question. The objection raised on the nullity of the decree could be raised only 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 decree-either oil transfer of the decree to it under s. 38 or under the provisions of s. 43 or s.44 of the Code. For reasons to be presently stated, we do not think that there could be valid transfer of the decree to the Allahabad Court or that it had any power to execute the decree under s. 43 or s.44. bat is why we think that, the question bow far the decree was a nullity does not fall for our decision in this case. With other modes of enforcement of a foreign decree this case has no concern.