1960 (8) TMI 111 - SC - Indian Laws

Summary

Issues Involved:
1. Applicability of Section 4(1) and 4(3) of the Indian Independence (Legal Proceedings) Order, 1947.
2. Jurisdiction of the Punjab High Court to entertain the application under Order 45, Rule 15 of the Civil Procedure Code.
3. Requirement of a certificate of non-satisfaction under Order 21, Rule 6(b) of the Civil Procedure Code.
4. Effect of the Pakistan Administration of Evacuee Property Ordinance on the decree.
5. Execution of the decree in India.

Detailed Analysis:

1. Applicability of Section 4(1) and 4(3) of the Indian Independence (Legal Proceedings) Order, 1947:
The appellants argued that the decree passed by the Federal Court of Pakistan should be executable in India under Section 4(3) of the Order, as if it had been passed by the Supreme Court of India. The High Court initially held that the decree fell under Section 4(1) and thus could be executed under Section 4(3). However, the Supreme Court disagreed, stating that Section 4(1) applies only to proceedings where the jurisdiction of the trial court was affected by the passing of the Act or the transfer of territories. Since the Lahore court's jurisdiction was not affected, the proceedings did not fall under Section 4(1), making Section 4(3) inapplicable.

2. Jurisdiction of the Punjab High Court to entertain the application under Order 45, Rule 15 of the Civil Procedure Code:
The High Court concluded that the competent court for execution was the Court of the Senior Subordinate Judge at Simla, not the High Court. The Supreme Court affirmed this, indicating that the appellants should have filed their application before the Senior Subordinate Judge at Simla.

3. Requirement of a certificate of non-satisfaction under Order 21, Rule 6(b) of the Civil Procedure Code:
The High Court found the application incompetent due to the absence of a certificate of non-satisfaction. The Supreme Court did not address this issue directly, as it concluded that Section 4 of the Order was inapplicable, rendering the question moot.

4. Effect of the Pakistan Administration of Evacuee Property Ordinance on the decree:
The High Court ruled that the judgment-debt vested in the Custodian of Evacuee Property at Lahore under Pakistan law, making the decree non-executable by the appellants. The Supreme Court did not delve into this issue, as it had already determined that the provisions of Section 4 were inapplicable.

5. Execution of the decree in India:
The Supreme Court concluded that the application made by the appellants under Order 45, Rule 15 was incompetent because the provisions of Section 4 of the Order did not apply to the decree sought to be executed. Consequently, the decree could not be executed in India as if it had been passed by the Supreme Court of India.

Separate Judgment by J.L. Kapur, J. (Dissenting):
Justice Kapur dissented, arguing that the language of Section 4 was broad and intended to cover all proceedings pending in any civil or criminal court in the specified provinces. He contended that the decree of the Federal Court of Pakistan should be treated as if it were passed by a court of competent jurisdiction in India. He also disagreed with the majority on the issue of the situs of the decree, asserting that the decree should be executable in India. Justice Kapur would have allowed the appeal and set aside the High Court's judgment.

Conclusion:
The appeal was dismissed with costs, as the majority held that the application under Order 45, Rule 15 was incompetent due to the inapplicability of Section 4 of the Indian Independence (Legal Proceedings) Order, 1947.