9911796707
TMI Blog1971 (2) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... 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([1963] 2 S.C.R. 619). Therein this Court ruled that the transfer ordered by the Bankura court was without jurisdiction as on that date 'the Code' did not apply to the Morena court.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a foreign court. In arriving at that conclusion it purported to rely on the decision of this Court in Rai Rajendra Sardar Maloji Narsingh Rao Shitole v. v. Sri Shankar- Saran and Ors..([1963]2 S.C.R. 577). Aggrieved by that decision the decree-holders have brought this appeal by special leave. From the contentions advanced before us, two questions arise for decision. They are (1) whether the decree under execution is not executable by courts situate in the area comprised in the former State of Madhya Bharat and (2) whether the decree is barred by S. 48 of 'the Code'. The contention of the Judgment-debtors is that the decree under execution being a decree of a foreign court is a nullity qua the courts in the former State, of Madhya Bharat and therefore the same is not executable in the Morena court. According to the decree-holders the decree in question is not a decree of a foreign court as contemplated by 'the Code' and the court -to which the decree is transferred for execution namely the Morena court is a 'court' ascontemplated by ss. 38 and 39 of 'the Code' and therefore therecan be no valid objection to its execution in the Morena court. Before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed are opposed to natural justice . It was urged on behalf of the judgmentdebtors that as the decree under execution was an ex-parte decree, we must hold that the proceedings in which the judgment was obtained were opposed to natural justice. We are unable to accede to this contention. As mentioned earlier, the judgment-debtors were served with the notice of the suit. They did not choose to appear before the court, Hence there is no basis for the contention that any principle of natural justice had been contravened. Further as held earlier the judgment in question is not a foreign judgment. Reliance was placed on Private International Law in support of the contention that in a personal action, a decree pro- nounced in absentee by a foreign court, to the jurisdiction of which the defendant had not in any way submitted himself is an absolute nudity. It was urged that the Bankura court had no jurisdiction over the judgment-debtors and therefore the decree passed being one pronounced in absentem is a nullity. In support of this contention reliance was placed on the decision of the Judicial Committee in Sirdar Gurdval Singh v. The Rajah of Faridkote(21 I.A. 171). Therein the Judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in courts in the former Indian States. This takes us to ss. 38 and 39 of 'the Code'. Section 38 provides that a decree may be executed either by the court which passed it, or by the court to which it is sent for execution. Section 39(1) to the extent it is material for our present purpose prescribes The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court- (a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain within the local limits of the jurisdiction of such other Court........ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree or whether it can be transferred to another court for execution has to be judged by the provisions of 'the, Code'. It was' next contended that in view of S. 20 cl. (b) of 'the Code' of Civil Procedure (Amendment) Act, 1951 by which the Code is extneded to Madhya Bharat and other areas, the judg- ment-debtors' right to resist the execution of the decree is protected. Section 20(1) of the Act deals with Repeals and Savings. That section to the extent relevant for our present purpose reads : If, immediately before the date on which the said Code comes into force in any part B State corresponding to the said Code, that law shall on that date stand repealed. Provided that the repeal shall not affiec (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed................... ;................ as if this Act had not been passed. This provisions undoubtedly protects the rights acquired and privileges accrued under the law repealed by the amending Act. Therefore the question for decision is whether the non-executability of the decree in the Morena court under the law in force in Madhya Bharat before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree in that court on the earlier occasion and not because of any vested rights of the judgment-debtors. Even if the judgment-debtors had not objected to the execution of the decree, the same could not have been executed by the court at Morena on the previous occasion as that court was not promly seized of the execution , proceedings. By the extension of 'the Code' to Madhya Bharat, want of jurisdiction on the part of the Morena court was remedied and that court is now made competent to execute the decree.' That a provision to preserve the right accrued under a repealed Act was not intended to preserve the abstract rights conferred by the repealed Act .... It only applies to specific rights given to an individual upon happening of one or the other of the events specified in statute case Lord Atkins' observations in Hamilton Gell v. White([1922] 2 K.B. 422). The mere right. existing at the date of repealing statute; to take advantage of provisions of the statute repealed is not a right accrued within the meaning of the usual saving clause-see Abbot v. Minister for lands ([1895] A.C. 425) and G. Ogden Industries Pty. Ltd. v. Lucas([1969] 1 All E. Report 121). Fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said term of twelve years, where the judgment- debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or (b) to limit or otherwise affect the operation of article 183 of the First Schedule to the Indian Limitation Act, 1908 . Art. 18 3 of the Indian Limitation Act, 1908 read thus ------------------------------------------------------------ Description of application. Period of Time from which period Limitationbegins to run. ------------------------------------------------------------- To enforce a judgment, decree Tweleve years When a present right to enor order of any Court established force the judgment, decree or by Royal Charter in the exercise order accrues to some person of its ordinary original civil capable of releasing the right. jurisdiction or an order of the Provided 'that when the Supreme Court judgment, decree or order has been revived, or some part of the principle money secured thereby or some interest on such money has been paid, or some acknowledgment of the right thereto has been given in writing signed by the person liable to pay such pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 prescribes a bar and not limitation have now revised their opinion. The opinion amongst the High Courts is now unanimous that s. 48 of 'the Code' is controlled by the provisions of the Limitation Act, 1908-see Kandaswami Pillai v. Kamappa Chetty (A,I.R. 1952 Mad. 186 (F.D.); Durg v. Panchanti(I.L.R. [1010] All. 647) Sitaram v. Chunnilalsa(I.L.R. [1944] Nag.250); Amarendra v. Manindra (A.I.R. 1955 Cal. 269) Krishna Chandra v. Paravatamma(A.I.R. 1953 Orissa 13); and Ramgopal v. Sidratm(A.I.R. 1943 Bom. 164). We are of the opinion that the ratio of the above decisions correctly lays down the law. That apart, it would not be appropriate to unsettle the settled position in law. For the reasons mentioned above this appeal is allowed and the order of the High Court is set aside and that of the trial court restored. The executing court is directed to proceed with the execution. The respondents shall pay the costs of the appellants both in this Court as well as in the High Court. P. Jaganmohan Reddy, J. I agree with my learned brother Hedge J., that the Appeal should be allowed. In the case of Kishendas v. Indo Carnatic Bank Ltd. (A.I.R. 1958 A.P. 407) I bad while deliveri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.([1963]2 S.C.R. 577) 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 took place unless there is a specific provision to the contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f international law or of the decree being a nullity. The earlier-execution proceedings ended unsuccessfully with the decision in Hansraj Nathu Ram v. Lalji Raja Sons of Bankura([1963]2 S.C.R. 619). It was decided in that case, 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 lo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
