1962 (4) TMI 119 - SC - Indian Laws

Summary

Issues Involved:
1. Was the decree a decree of a foreign court?
2. Could the Court at Gwalior order the transfer of the decree for execution in the Allahabad Civil Court?
3. If it could not, then was the decree executable at Allahabad under Sections 43 & 44 of the Code of Civil Procedure?
4. Could the respondents-judgment debtors take an objection to the execution of the decree on the ground that it was an absolute nullity, being the decree of a foreign Court?

Issue-wise Detailed Analysis:

1. Was the decree a decree of a foreign court?
The court examined the nationality of the decree passed by the Gwalior Court on November 18, 1948. At the time of the decree, Gwalior was considered a "foreign court" as per Section 2(5) of the Indian Code of Civil Procedure (Act V of 1909). The definition of a "foreign court" was a court situated beyond the limits of British India and not established or continued by the Central Government. The court held that the Gwalior Court fell within this definition, making the decree a foreign judgment. Since the respondents did not submit to the jurisdiction of the Gwalior Court, the judgment was considered a nullity outside the United State (Madhya Bharat).

2. Could the Court at Gwalior order the transfer of the decree for execution in the Allahabad Civil Court?
The court discussed the power of the Gwalior Court to transfer the decree for execution. The Gwalior Court, governed by its own Code of Civil Procedure at the time of passing the decree, did not have the authority under the Indian Code to transfer the decree. The court held that the Gwalior Court, which made the order of transfer in September 1951 under the Indian Code, was a different court from the one that passed the decree under the Gwalior Code. Therefore, the transfer order was not valid under Sections 38 and 39 of the Indian Code.

3. If it could not, then was the decree executable at Allahabad under Sections 43 & 44 of the Code of Civil Procedure?
The court reviewed Sections 43 and 44 of the Indian Code of Civil Procedure. Section 43, as amended, did not apply to decrees passed by civil courts in Indian States before they became Part B States. Similarly, Section 44, which allowed for the execution of decrees of revenue courts in Part B States, was not applicable to civil court decrees. The court concluded that neither Section 43 nor Section 44 provided a basis for executing the Gwalior decree in Allahabad.

4. Could the respondents-judgment debtors take an objection to the execution of the decree on the ground that it was an absolute nullity, being the decree of a foreign Court?
The court held that the respondents could object to the execution of the decree on the ground that it was a nullity. The decree, being a foreign judgment, was not enforceable in British India without a specific provision allowing its execution. The court cited previous judgments to support the view that a decree of a foreign court, to which the defendant did not submit, is a nullity and cannot be enforced outside the jurisdiction of the court that passed it.

Conclusion:
The Supreme Court dismissed the appeal, holding that the decree of the Gwalior Court was a decree of a foreign court and not executable in Allahabad. The Gwalior Court did not have the authority to transfer the decree under the Indian Code, and Sections 43 and 44 of the Code did not apply to make the decree executable. The respondents were entitled to object to the execution on the ground that the decree was a nullity.