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& CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2427 of1966.

Appeal by special leave from the judgment and order dated August 27, 1964 of the Madhya Pradesh High Court in Misc. Appeal No. 20 of 1964.

S. C. Majumdar and R. K. fain, for the appellant. W. S. Barlingay, Ramesh Mali and Ganpat Rai, for the respondent.

The Judgment of S, M. SIKRI, C.J., G. K. MITTER, K. S. HEGDE and V. BHARGAVA, JJ. was delivered by HEGDE, J. P. JAGAMOHAN REDDY, J. gave a separate Opinion:

Hegde, J. This is an execution appeal. The decree-holders are the appellants herein. This case has a long and chequered history. The decree-holders obtained a decree against the respondents in the court of Sub-Judge, Bankura (West Bengal) for a sum of over Rs. 12,000/-, on December 3, 1949. On March 28, 1950 they applied to the court which passed the decree to transfer the decree together with a certificate of non-satisfaction to the court at Morena in the then Madhya Bharat State for execution. It was ordered accordingly.. The execution proceedings commenced in the court of Additional District Judge at Morena on September 21, 1950 (Money Execution Case No. 8 of 1950). The judgment-debtors resisted the execution on the ground that the court had no jurisdiction to execute the same as the decree was that of a foreign court and that the same had been passed exparte. The court accepted that contention and dismissed the execution petition on December 29, 1950. On April 1, 1951 the Code of Civil Procedure (Amendment) Act, (Act 11 of 1951) came into force. As a result of that the Code of Civil Procedure (in short the 'Code') was extended to the former State of Madhya Bharat as well as to various other places. Meanwhile the decree-holders appealed against the order of the learned Additional District Judge, Morena dismissing the execution petition, to the High Court of Madhya Pradesh. The Madhya Pradesh High Court allowed their appeal. As against that the judgment debtors appealed to this Court. This Court allowed the appeal of the judgment- debtors and restored the order of the learned Additional District Judge,, 'Morena. The decision of this Court is reported in Hansraj Nathu Ram v. Lalji Raj and sons of Bankura(1). Therein this Court ruled that the transfer ordered by (1) [1963] 2 S.C.R. 619.

Section 40 prescribes "Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State." Rules are defined in s. 2(12) as meaning Rules and Forms contained in the 1st Schedule or made under s. 122 or s. 125 of 'the Code'. On a combined reading of ss. 2(12), 33, 39 and 40, it follows that a decree can be transferred for execution only to a court to which 'the Code' applies. This is what was ruled by this Court in Hansraj Nathu Ram v. Lalji Raja and sonw cf Bankura(1). But by the date the impugned transfer was made, 'the Code' had been extended to the whole of India. In fact the court to which the decree was transferred is now an entirely new court in the eye of the Iaw-see the decision of this Court in Shitole's case(2). From the foregoing discussion., it follows that the decree under execution is not a foreign decree and its transfer to the Morena court is in accordance with the provisions of the Code'. That being so, the decree under execution satisfies the dictum of this Court in Hansraj Nathu Ram v. Lalji Raja and sons(1) that "a decree can be executed by a court which passed the decree or to which it was transferred for execution and the decree which could be transferred has to be a decree Passed under the Code and the Court to which it could be transferred has to be a Court which was governed by the Indian Code of Civil Procedure."

(3) I.L.R. [1944] Nag.250.

(5) A.I.R. 1953 Orissa 13.

(2) I.L.R. [1010] All. 647.

(4) A.I.R. 1955 Cal. 269.

(6) A.I.R. 1943 Bom. 164.

(7) A.I.R. 1958 A.P. 407.

of unpaid calls and the Court passed on ex-parte decree on 15-8-1940 against the appellant. The liquidator field an execution petition in that Court praying for a transfer of the decree to the City Civil Court Hyderabad which was ordered on 15-3-1951 when. the Hyderabad Civil Procedure Code was in force in the Hyderabad Stat under which the decree of the Madras High Court would be a foreign decree and the only way in which the liquidator could recover the decreetal amount was by filing a suit on that decree. No doubt the Madras High Court could not on that date i.e. 15-3-1951 pass an order directing the transfer of the decree as it was to a Court which was not governed by the Indian Civil Procedure Code (hereinafter called the Code) nor on that date were there any reciprocal arrangements for ex--- cuting those decrees in the Hyderbad State. Madras High Court could not therefore transfer a decree passed by it for execution to a Court which did not satisfy the provisions of Sectons 43 to 45 on that date. It did not also appear from the facts of that case whether any notice was served on the appellant but following the decision of the majority of the High Courts in this country and also relying on the observations of their Lordships of the Privy Council in Sardar Gurdayal Singh v. Raja of Faridkot (1) that a decree pronounced in absentum by a foreign Court the Jurisdiction to which the defendant has not in any way submitted himself is by international law a nullity, I also took the view that the non-executability of the decree is to be determired as on the date on which it was passed and that no distinction can conceivably be made between the. decree passed by British Indian Courts before the merger or before the Independence when it was a foreign decree and a decree passed by the Courts of a native State before the Independence or merger in both cases the character of the Judgment would be that of a foreign Judgment and if it suffers from any want of jurisdiction or otherwise it will continue to be subject to that defect. This Court had also expressed a similar view in Raj Rajendra Sardar Malaji Marsingh Rao Shitole v. Sri Shankar Saran & OrS.(2) when it held that an ex-parte decree passed in 1948 by the Gwalior, Court against residents of U.P. who did not appear was not executable in Allahabad even though the Gwalior Court had transferred the decree in October 1957 after the Civil Procedure Amendment Act IT of 1951 come info force after which the Gwalior Court was a Court under the Cade. It was held by a majority that the decree passed by the- Gwalior Court did not change it,, nationality in spite of subsequent constitional changes or amendments in the Code of Civil Procedure. that if a decree was unenforceable in a particular Court at the time it was passed it would not become enforceable and valid simply because of the political changes that (1) 21 I.A. 171.

that Morena Court not being a Court to Which the Code applied the decree could not have been transferred and that Section 38 and 39 of the Code did not afford jurisdiction for such transfer as the Morena Court at the time of transfer was governed by the Madhya Bharat Civil Procedur Code and not by the Code. What is relevant in the present case is that when the decree holder again applied to the Bankura Court for execution of his decree by the Morena Court after the decision of this Court in Hansraj's case, both the Court that passed the decree and the Court to which it is transferred for execution were Courts under the Code, as such no question of the Bankura decree being a foreign decree or it being a nullity could arise. The Morena Court on the date when the order of transfer of the decree was passed by the Bankura Court is not a Court governed by the Gwalior law or Madhya Bharat law as such the impediment to executability of the Bankura decree no longer exists nor could it be considered in the light of Section 20(c) of the Amendment Act 11 of 1951 as having saved any right or privileges under the repealed procedure code of Gwalior or Madhya Bharat. Whatever may be the views expressed in the several decisions a view which I was also inclined to take in the decision referred to, though on the facts of that case it may not have been necessary, on a further a fuller Qonsideration I agree with great respect with the views of my learned brother Hegde, J., that no question of a vested right or a privilaeae arises to entitle the Respondent to challenge the execution proceedings in Morena Court. The decree granted by Bankura Court was executable by the Courts governed by the same Code by the Court which passed it or by the Court to which it transferred. Once the Code is' made applicable to the whole of India by the Amendment Act II of 1951 the decree is no longer a foreign decree qua the Morena Court which is a Court under the Code to which the Bankura Court could transfer the decree for execution. No doubt in Shitole case it was observed that Section 13 of the Code creates substantive rights and not merely procedural and therefore defence that were open to the Respondents were not taken away by any Constitutional changes but the ratio of the decision was that the Gwalior Court not being a Court that passed the decree after the coming into force of Act IT of 1951 the Allahabad Court could not execute it. That im. pediment does not exist now in that the Bankura Court has transferred the decree to a Court under I the Code. 'Me plea that Section 48 Civil Procedure Code presents a bar of limitation is also not tenable. In the result-I agree that the appeal should beallowd as directed by my learned brother.