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TMI Blog1956 (2) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... Between 1933 and 1941 three infructuous applications were taken out by the decree-holder but the same were dismissed for various reasons. Thereafter on 6-9-1944 more than three years of the dismissal of the previous application and the final orders' being passed on that E. P. No. 173 of 1944 was filed for executing the decree by attachment and sale of the properties belonging to the judgment-debtors as a result of which attachment was ordered on 26-3-1945, effected on 6-4-1945, and the sale of properties ordered on 19-12-1945. On 18-12-1945, the judgment-debtors preferred C. M. A. No. 522 of 1945 against the order of the Subordinate Judge and applied for stay of sale which was granted. On 7-3-1946 C. M. A. No. 522 of 1945 was withdrawn and dismissed. Subsequently the judgment-debtors filed on 27-8-1946 E. A. 377 of 1946 to strike off E. P. No. 173 of 1944 on the ground that the Court had no jurisdictions to execute the decree any further. This was dismissed on 6-12-1946. Against that C. M. A. No. 29 or 1947 was filed in this Court and further proceedings were stayed. On 28-3-1947 E. P. NO. 173 of 1944 was struck off with the order that the attachment should continue. C. M. A. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the conclusion that on 28-3-1947 E. P. No. 173 of 1944 was not finally disposed of but was only struck off for statistical purposes or in other words the records were consigned to the record room to be taken out and proceeded with as and when necessity arose, then E. P. No. 134 of 1950 is only intended as a remainder to the Court to bring back the record consigned to the record room for the time being and to proceed with it on merits. 3. Till 1-4-1937 the area which is now considered as the Union of Burma was a part of British Crown just like any other province situated in the territory of British India and subject to the laws and regulations passed by the then Imperial Legislative Assembly and under the Authority of the Governor-Genera-in-Council. At the time of the passing of the Government of India Act, 1935, a similar Act for the Government of Burma was also passed under which India and Burma became two separate units under the British Crown and thereafter there was no community of administration so far as these two territories were concerned. 4. A further change was effected after the Indian Independence Act of 1947 came into force on 15-8-1947 When India became a dominio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 2. Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent if any to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment. 3. The provisions of Section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of the District Court executing a decree under this section and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in Clause (a) to (f) Of Section 13. Explanation 1: Superior Courts with reference to the United Kingdom means the High Court in England, the Court of session in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County of Palatine of Lancaster and the Court of Chancery of the County Palatine of Durham. Explanation II: Reciprocating territory means any country or territory situated in any part of His Majesty's dominions.......When the (Central Government) may from time to time by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India in the latar Home Department No. 286/36, Judicial, dated 27-3-1939, decelerating British Burma to be a reciprocating territory for the purpose of the said section shall be cancelled and shall be deemed to have been cancelled with effect from 4-1-1948. 8. By Act 71 of 1952 in Section 44-A, Civil P. C. in Sub-section (1) the words the United Kingdom or have been omitted. For explanations 1 to 3, two explanations have been substituted. Clauses (2) and (3) of Section 44-A, Civil P. C. remain as before. Explanation 1: Reciprocating territory means any country or territory outside India which the Central Government may by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and superior Courts with reference to any such territory, means such Courts as may be specified in the said notification. Explanation 2: Decree with reference to a superior Court means any decree or judgment of such Court under which a sum of money is pay able not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, even if such an award ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c or India which are named in the schedule to the order. 10. The law regarding the enforceability of foreign judgments is discussed in Private International Law by Cheshire, Edn. 4, in Chapter 16, where the learned author says that the attitude adopted by English law from the earliest days has been to permit the successful suitor to bring an action in England on a foreign judgment. But during the last century the Courts have changed their view as to the ground upon which this recognition is based. Whereas the older cases put it solely upon the ground of comity of nations for such recognition, there has been a change in later years to the doctrine of obligation. This doctrine which was laid down in 1842 is that where a foreign Court of competent jurisdiction has adjudicated a certain sum to be due from one person to another the liability to pay that sum becomes a legal obligation which may be enforced in England by an action and therefore, once the judgment is proved the burden lies upon the defendant to show why he should not perform the obligation. Blackburn J. in Schibsby v. Westenholz, (1870) 6 QB 155 laid down the law in the following terms: The judgment of a Court of competent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Code which with the later amendments making it suitable to the present conditions of the country defines the law for the time being regarding execution. 12. It is useful to refer to other text books where the same matter is discussed. Chapter 16 of Dicey's Conflict of Laws, Edn. 6 deals with the effect of foreign judgments. Rule 90 deals with Part I of the Foreign Judgments Reciprocal Enforcement Act, 1933. In his book Recognition and Enforcement of Foreign Judgments in the Common Law Units of the British Commonwealth by H.E. Read in Chapter II, the learned author makes a comparative study of the basis on which foreign judgments were recognised in the British Commonwealth at law, beginning with the conception of the comity of nations. The development of the present system is considered at page 299 and the effect of Foreign Judgments Reciprocal Enforcement Act, 1933, is dealt with at pp. 299-300: Reference has already been made to the momentous Foreign Judgments (Reciprocal Enforcement) Act, 1933, in relation to its jurisdictional provisions and its failures to affect explicitly the no merger doctrine. The Act provides for reciprocal direct enforcement of money judgments of po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h case the judgment will be conclusive only if the requisites contained in Sub-clauses (a) to (f) of Section 13, Civil P. C. are fully complied with. If it is proved that any of these conditions is not fulfilled the result will be that the judgment will not be conclusive and there is no merging of the cause of action in the decree. It has been held in Keymer v. Viswanatha Keddi ILR 40 Mad 112: AIR 1916 PC 121 (C) by the Privy Council that where a defence has been struck off on the failure to answer the interrogatories and a decree has been passed pursuant to the striking off of the defence it is not one given on the merits and cannot, therefore, be executed in the English Courts. The procedure in England under the Reciprocal Arrangements Act is for registration of decrees whereas in Indian Courts it is by application of the - provisions of Section 44-A, Civil P. C. with the concomitant attraction of the provisions of the Limitation Act. A decree of a reciprocating territory has in it all the elements of a decree of an Indian Court with its advantages and If abilities. In these circumstances if E. P. No. 173 of 1944 had been filed subsequent to 4-1-1948 Section 44-A, Civil P. C. can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisprudence prevails. At pages 1163-1165 of Vol. 34 of Corpus juris there is a complete and systematic statement of the whole body of the law as embodied in and developed by all reported decisions of the American Courts. In Article 1651 dealing with judgments in person am and their operation and effect the law is stated thus: A foreign judgment is one of no effect outside the country wherein it is rendered. The duty to recognise the validity and effect of such a judgment rests on comity, or on the ground of a legal obligation arising from the judgment to pay the debt which it adjudges. By this rule of the comity, the same force and effect will be given to the judgments of a foreign country, when sued on in the Courts of the United States, as that country gives to judgments of our Courts when sued on there, the basis of such comity being reciprocity. That they should be given any greater effect is not required, but the domestic Court may do so if it likes. Such a judgment is not executory here in the sense of authorising the issue of final process or of creating a lien on real property, although it may give the creditor a sufficient standing to maintain a suit to set aside fraudule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the public acts, records, and judicial proceedings of every other state. A similar provision has been enacted in our Constitution in Article 2.61. 16. Our conclusion, therefore, is that any judgment or decree obtained in a Burmese Court cannot be executed in the Courts of the Indian Union under the provisions of Section 44-A, Civil P. C. But it is argued that the decree in C. B. No. 172 of 1932 on the file of the Rangoon High Court had been transferred for execution to the Devakottan Sub-Court long before Burma was declared a republic and when onc9 the transfer takes place a vested right is conferred on the decree-holder to execute the decree irrespective of the happening of subsequent events or change in the international or constitutional relationships. In supports of this argument certain observations of the Federal Court in Venugopala Reddiar v. Krishnaswami Red-diar to the effect that during the time Burma remained a part of British India it was permissible under Section 17, Civil P. C. to include immovable properties situate in Burma as part of the subject matter of a suit instituted in any other province and therefore in regard to a suit instituted in a Court in the Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 3 Mad 98 . Sevai Rowther v. Tahsildar, Periakulam, 6 M LJ 122 and Bisseswar Sonamut v. Jasoda-lal Chowdhury, ILR 40 Cal 704 (P). 17. Furthermore it has been observed that with regard to execution of decrees the question of jurisdiction has to be approached from the view point of the time when the execution takes place and not when the application is made. See the discussion in Mullah's C. P. Code, Edn. 12,, pages 162 and 163, regarding the cessation of jurisdiction of the Courts which passed the decree and also the decisions in Tilo Beharani v. Raghubehara, AIR 1939 Mad 463 and Ramier v. Muthukrishna lyer, ILR 55 Mad 801: AIR 1932 Mad 418. Rajadhyakhha J. in Chunilal v. Dundappa AIR 1951 Bom1 90 (S) had to consider a case where an ex parte decree passed by a British Indian Court against a subject of an Indian State was transferred for execution to that Indian State under Section 44, Civil' P. C. and the execution petition was dismissed on 10-3-1948 on the grounds mentioned in Section 13(a), Civil P. C. On 8-3-1048 the governance of that Indian state had been seceded to the Indian Union and subsequently on 27-1-1949 that State had become completely merged with the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be executed in Punjab after 1950 since Nabha has ceased, to be a foreign territory by its merger in the Indian Union and therefore the state of affairs at the time of execution of the decree has to be taken into consideration. The principle enunciated in AIR 1950 Cal 12 has found favour in Surendranath v. Milan Mia, AIR 1955 Assam 12 (Z). A contrary view seems to be prevailing in the High Court of Mysore as is seen from the decision in Subtaaraya Setty Sons v. Palani Chetti and Sons, AIR 1952 Mys 69 (Zl), In which the Learned Judges did not hold that a decree passed in a Court in the Madras presidency before Mysore became a part of the Indian Union does not cease to be a decree of a foreign Court even after Mysore became a part of the Indian Union. It was held that decrees which were inexecutable as those of a Court in a foreign State according to the law then in force upto the date of the Constitution have not ceased to be so on account of the changes introduced by the Constitution with respect to statutes or in the definition of foreign State of territory, of India, The date of the decree and not the date of the application for execution is material to decide the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should take a different view especially since the view taken by the Rangoon High Court is that Indian decrees after separation of Burma should be considered as foreign' decrees. No distinction can be made in the case of pending execution applications as the rule of procedure should be that obtaining on the date on which when the remedy is sought to be enforced. See Craies on Statute Law, Edn. 5, page 370 as well as the decision in Radheyshiam v. Firm Sawai Modi. The decision of the Privy Council in Gurdayal Singh v. Raja of Faridkot ILR 22 Cal 222 contains principles similar to those we have to decide in the present case. 20. Learned counsel for the respondent then urged that E. P. No. 134 of 1950 should be deemed to be a continuation of E. P. No. 173 of 1944 so that what the Court was doing was only completing what has been partly executed. Such an application cannot be a continuation of the previous execution petition in accordance with the tests laid down in Maharaj Bahadur Singh V. A. H. Porbes, 57 Mad LJ 184 : AIR 1929 PC 209 . The tests for finding out whether a previous execution petition, is pending have been elaborately dealt with in that decision and according to tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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