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--'Bhagwan Shanker v. Rajaram', AIR 1951 Bom 125 (B) and --'Moosakutty Hajee v. Pylotu Joseph', AIR 1952 Trav-C 89 (C).

4. Taking a converse case, it has been argued on behalf of the appellant that the decrees, passed before partition by those courts which were Indian courts during pre-partition days but which are now foreign courts being located within the territories of the dominion of Pakistan, cannot be executed by the Indian Courts because they are now decrees of a foreign court. Cases of --'Dominion of India v. Hiralal Bothra', AIR 1950 Cal 12 (D) and --'Saidul Hamid v. Federal Indian Assurance Co., Ltd., New Delhi', AIR 1951 Punj 255 (E) have been cited in support of this point.

5. The learned counsel on the opposite side has placed his reliance on the judgment of the Mysore High Court in --'Subharaya Setty & Sons v. S. K Palani Chetty & Sons', AIR 1952 Mysore 69 (F). It is urged on behalf of the respondents that the vested right of the -judgment-debtor to enjoy immunity from execution of the decree of a foreign court cannot be deemed to have been taken away by the introduction of one Civil Procedure Code in the territories of the former States of Jaipur and Dholpur. The Rajasthan Civil Procedure Code or the Indian Civil Procedure Code of 1908 which were made applicable to Rajas-than should not be applied retrospectively so as to take away the immunity enjoyed by the residents of the former States against the execution of the decrees which were at that time decrees of foreign court and which were not competent in the meaning of Section 13(a), C. P. C., and which were not executable against them during those days, being personal decrees of foreign courts, to whose jurisdiction they had not submitted.

It is further urged that Article 261(3) of the Constitution of India is not retrospective in its operation as has been held by the Supreme Court in --'Janardhan Reddy v. State of Hyderabad', AIR 1951 SC 217 (G). The decrees which were foreign decrees before the coming into force of the Constitution of India should not now be regarded as decrees of the courts of the same State for purposes of their execution.

6. We have carefully considered the arguments of the learned advocates of both the sides. It is true that the decree in the present case was a foreign decree against a nonresident foreigner who had not submitted to the jurisdiction of the court which passed it and the decree being a personal decree was not executable against the judgment-debtor in the territories of the former Dholpur State before the merger of the two States into one. The position in this behalf is very clear and both the sides do not dispute it. The point, however, is whether, by change which has been brought about subsequently by the merger of both the States into one, such decrees have now lost their character of being foreign decrees and have become executable within the territories of the State where formerly it was not so executable. In --'AIR 1952 Mys 69 (F)', the learned Judges of the Mysore High Court have held that a decree which was a foreign decree before the coming into force of the Constitution of India and which was not executable within the territories of the Mysore State being a personal decree against a nonresident foreigner of that State could not now be regarded as executable because,

1. Article 261(3) of the Constitution of India is not retrospective in its operation the mate-

rial date being the date of the decree and not the date of the execution petition, and

2. The vested rights which, the, citizens of the Mysore State enjoy of immunity against the execution of such foreign decrees could not be regarded as having been taken away by the accession of the Mysore State to the Union of India. The learned Judges have also held that execution of such decrees would result in great injustice to the judgment-debtors because at the time of the passing of such decree the judgment-debtors could disregard the proceedings on the ground of the decree being that of a foreign court and not executable within the territories of that State. Any defence which might have been available to them at that time would now be shut out to them by making the decree executable against them in the territories of, the State, to which they formerly belonged. On the other hand in --'AIR 1951 Bom 190 (A)', which has been subsequently followed by .a Full Bench of the same court in --'AIR 1951 Born 125 (B)', a contrary view has been adopted, by the Bombay High Court. It has been held that a decree of Belgaum court which was not executable in the territories of the former Jamkhandi State because it was a personal decree against a non-resident foreigner who had not submitted to the jurisdiction of that court, would be executable in the territories of the former Jamkhandi State by the Jamkhandi courts after the surrender of the jurisdiction of that State by the Ruler in favour of the Government of India, by virtue of the change in the status of the judgment-debtor brought about by an Act of the State. The ordinary rule of law which has been given in Maxwell's Interpretation of Statutes, 9th Edn., at p. 222 :