1976 (1) TMI 184 - SC - Indian Laws

Summary

Issues Involved:
1. Nullity of the decree passed by the Bombay High Court.
2. Jurisdiction of the Bombay High Court to transfer the decree to the Goa Court.
3. Vested rights of the judgment debtor regarding the executability of the decree.

Issue-wise Detailed Analysis:

1. Nullity of the Decree:
The appellant argued that the decree passed by the Bombay High Court was a nullity as it was a decree of a foreign court. The respondent countered that the decree was not a nullity because the judgment debtor had appeared and participated in the suit. The court distinguished the present case from Raj Rajendra Sardar Maloji Marsingh Rao Shitole v. Sri Shankar Saran and Ors., noting that in Shitole's case, the decree was ex parte and passed by a foreign court, whereas, in the present case, the judgment debtor had participated in the proceedings. The court also referred to Shaligram v. Daulat Rant and Lalji Raja & Sons v. Firm Hansraj Nathuram, confirming that a decree is not a nullity if the party appears before the court, even if the court is foreign.

2. Jurisdiction to Transfer the Decree:
The appellant contended that the order of the Bombay High Court transferring the decree to the Goa Court was without jurisdiction since the Code of Civil Procedure (CPC) had not been applied to Goa at the time of the transfer. The court held that the decree was valid and executable despite the initial non-applicability of the CPC to Goa. The court applied the doctrine of eclipse, stating that the decree lay dormant due to the non-applicability of the CPC but became executable once the CPC was applied to Goa. The court emphasized that the change in law during the pendency of the appeal must be taken into account, as established in Moharllal Chunilal Kothari v. Tribhowan Haribhai Tamboli and other cases.

3. Vested Rights and Executability of the Decree:
The appellant argued that the executability of the decree was a vested right that could not be taken away by the subsequent application of the CPC to Goa. The court rejected this argument, stating that the right to execute a decree is procedural and not a substantive vested right. The court cited Lalji Raja & Sons' case, which held that the non-executability of a decree within a particular territory is not a vested right. The court further noted that the Additional Judicial Commissioner was competent to take notice of the change in law and apply the CPC to Goa.

Constitutional Provision:
The court also invoked Article 261(3) of the Constitution of India, which mandates that final judgments or orders passed by civil courts in any part of India shall be executable anywhere within the territory of India according to law. The court concluded that the decree passed by the Bombay High Court was executable under this constitutional provision, especially after the application of the CPC to Goa during the pendency of the appeal.

Conclusion:
The court upheld the decision of the Additional Judicial Commissioner, finding that the decree passed by the Bombay High Court was clearly executable. The appeal was dismissed, and the Executing Court was directed to proceed in accordance with the law as directed by the Additional Judicial Commissioner. The parties were ordered to bear their respective costs due to the uncertain legal position.