Gokaldas Naranji, Decree-holder vs Dwarkadas Jethabhai, Judgment-debtor

Baxi, J.—This appeal has been preferred from the order of the Civil Judge, Senior Division, Jamnagar, in Darkhast No. 79 of 1952 dismissing the Appellant''s application for execution of an ex parte money decree passed against the Respondent by the Bombay High Court.

The Respondent was the subject of the Nawanagar State which enjoyed full civil and criminal jurisdiction. It had a CPC of its own on the lines of the British Indian Code & the Bombay High Court was a foreign Court vis-a-vis the Nawanagar State Courts and its decree was a foreign decree according to the law of the State. There being no reciprocal arrangements for execution of the decrees of their respective Courts between the Government of India and the Nawanagar State, the decrees of the Bombay High Court could only be enforced in Nawanagar State by means of a suit, like any other foreign judgment and the judgment-debtor could resist the suit on any of the grounds mentioned in Section 13 of the British Indian Code of Civil Procedure. The period of limitation for such a suit Was six years. This was the position till the integration of the Nawanagar State with the Saurashtra State in 1948.

After the formation of the Saurashtra State, Saurashtra Ordinance No. 1 of 1948 was passed which enacted that when the administration of any Covenanting State (the Nawanagar State was- one of such Covenanting States) has been taken over by the Rajpramukh, all laws, Ordinances, Acts, Rules, Regulations, etc., having the force of law in the said State shall continue to remain in force until repealed or amended, and shall be constructed as if references in them to the Ruler of the State were references, to the Rajpramukh. Therefore the law relating to the enforcement of a decree of the Bombay High Court in the territories of the former Nawanagar State at the time of its merger continued to be the same and a suit on the judgment of the Bombay High Court was the only means of enforcing it.

Thereafter certain Central and Bombay Acts were applied to Saurashtra with some modifications by the Saurashtra Ordinance No. 25 of 1948. The CPC of 1908 was one of the Acts so applied. Section- 43 of that Code was however omitted and therefore the only mode of enforcing a decree of the Bombay High Court after the introduction of the CPC in Saurashtra was by means of a suit. The Constitution came into- force on 26-1-1950 and the Saurashtra State and the Province of Bombay were merged into the Union of India, and became parts of the territory of India as defined by the Constitution. The law relating to the execution of the decrees of the Bombay High Court in Saurashtra however continued to be same as before the Constitution, viz., the CPC of 1908 with the exception of Section 43 and a decree of the Bombay High Court could be enforced by means of a suit only.

Incidentally it may be stated that the Appellant''s suit for enforcement of his decree was barred by limitation fifteen years before the integration of the Nawanagar State and seventeen years before the Constitution. Ordinance No. 15 of 1948 was next amended by Ordinance No. 27 of 1950 and was published in the Saurashtra Government Gazette dated 11-9-1950 by which Section 43 was added to the CPC The Central Government thereafter enacted the CPC (Amendment) Act 1951 (2 of 1951) whereby the Union. CPC was extended with certain modifications to the whole of India except certain territories which are not material for consideration to this appeal. The expression ''foreign Court'' was defined by this Act as a Court situated outside India and not established or continued by the authority of the Central Government. The States of Bombay and Saurashtra thus came to have a common CPC for the first time after this Act, their Courts ceased to be foreign Courts and the decrees of the Court of one State became directly executable in the Court of the other State without reference to Section 43.

The Appellant got his decree transferred to the Civil Judge''s Court through the District Judge, Halar, before the introduction of Section 43 in the CPC in Saurashtra, and applied for execution of the decree by the darkhast dated 24-1-50. The learned Civil Judge allowed the Appellant''s application and ordered execution of the decree. In appeal from this order in - Dwarkadas Jethabhai v. Gopaldas Naranji'' AIR 1952 Sau 90 (FB) (A), the Full Bench of this Court held that the Appellant''s proper remedy was by means of a suit, which had become time barred and he could not be allowed to circumvent this bar by preferring an application for execution.

The Full Bench was asked in that appeal to take notice of the constitutional and legislative changes that had taken place after the decree and allow execution but as the darkhast itself was initially incompetent we refused to do so. Thereafter the Appellant applied again for execution of his decree by the present darkhast dated 1-4-52, but his darkhast was dismissed by the learned Civil Judge. The Appellant has now approached this Court in appeal against the Civil Judge''s order and the appeal has been referred to the Full Bench for decision.

Mr. A.R. Bakshi, who appeared on behalf of the Appellant, contended that the decree had become executable by virtue of the Constitution and by the application of the CPC (Amendment) Act 2 of 1951. Therefore the fact that the suit on the judgment of the Bombay High Court in which the decree was passed was barred by limitation did not affect the Appellant''s right to obtain execution of the decree which the Constitution and that Act had conferred upon him.

I shall first discuss the application of Article 261(3) of the Constitution to see whether that Article applies to this case. The Article reads as follows:

Final judgments or orders delivered or passed by Civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law.

The words ''territory of India'' have been defined by Article 1(3) as comprising-

(a) the territories of the States;

(b) the territories specified in Part D of the First Schedule; and

(c) such other territories as may be acquired.

Therefore Article 261(3) can apply to a decree of the Bombay High Court passed before the date of the Constitution if it can be considered to be a decree passed by a Civil Court in the territory of India.

There is no doubt that the Presidency of Bombay or the Province of Bombay which existed before the Constitution cannot be considered to be the territory of India. It was held in - Keshavan Madhava Menon Vs. The State of Bombay, , that the Constitution had no retrospective operation. Therefore the Province of Bombay before the Constitution and ''a fortiori'' the Presidency of Bombay which was in 1927 cannot by retrospective operation of Article 1(3) be considered to be the territory of India.

In - Janardan Reddy and Others Vs. The State, , the Supreme Court refused, to grant special leave to appeal against the judgments of the High Court of Hyderabad in the territories of H.E.H. the Nizam passed in December 1949. The Supreme Court held that the territories of the Nizam''s Dominion before 26-1-50 were not the territory of India. Although that decision turned upon the construction of Articles. 132, 133, 134 and 136 of the Constitution, where the words ''territory of India'' occur, those words should receive the same construction in other Articles also.

It is noteworthy that in that case an argument was made on behalf of the Petitioners that upon the construction of the words ''territory of India'', which the Supreme Court was inclined to place upon them, the words ''territory of India'' would not include the Province of Bombay before 26-1-1950, i.e., the date of the Constitution, and there would be no right of appeal against the final judgments of the Bombay High Court passed before that date, and the territory of the Province of Bombay would be excluded from the operation of Article 136. The Supreme Court replied to this argument by pointing out that a right to file an appeal from the judgments of the High Court at Bombay in both civil and criminal matters existed under the Code of Civil Procedure, Code of Criminal Procedure and ;he Letters Patent of the High" Court before 26-1-1950. That right was transferred to the Federal Court by appropriate legislation and eventually to the Supreme Court by Article 135. Therefore by the interpretation of Article 136, which the Supreme Court was placing on it, the right of appeal from judgments of the Bombay High Court was not taken away.

The Supreme Court''s jurisdiction to hear the appeal from the final judgments and decrees of the Bombay High Court passed before the Constitution was thus made to rest not on the ground that the Bombay Province was a part of the territory of India under the Constitution, but on the special provisions of Article 135. This decision may thus be regarded as almost a direct authority for holding that the territory of the Province of Bombay or the Bombay Presidency is not the ''territory of India'' as defined by the Constitution and a decree of the Bombay High Court passed before the Constitution not being a decree passed by a Court in the territory of India, Article 261(3) does, not apply to it and it does not become executable under that Article.

The decisions in - Keshavan Madhava Menon Vs. The State of Bombay, and in - Janardan Reddy and Others Vs. The State, were relied upon and followed by the Mysore High Court in - ''Subbaraya Setty and Sons v. Palani Chetty and Sons AIR 1952 Mys 69 (D), in which it was held that decrees passed in the Madras Presidency or the Mysore State before they became parts of the territory of India under the Constitution cannot be said with retrospective effect to be those of Civil Courts in the territory of India within the meaning of Article 261(3).

In - Chunnilal Kasturchand Vs. Dundappa Damappa, , the question was about the executability of an ex parte decree of the Court of Belgaum in the territory of the State of Jamkhandi after its merger with the Bombay Province. When the decree was passed the judgment-debtor was a subject of .the Jamkhandi State and had not submitted to the jurisdiction of the Belgaum Court and the decree was therefore a nullity so far as Jamkhandi Courts were concerned and could not be executed in those Courts according to the well known rule of private international law enunciated in - ''Gurdyal Singh v. Raja of Faridkot 22 Cal 222 (PC) (F).

Their Lordships of the Bombay High Court recognised that when the decree was passed its execution could be resisted in the Jamkhandi Courts which were Courts of a foreign State. They however held that the decree was not an absolute nullity for the cause of action against the judgment-debtor had arisen within the territorial limits of the jurisdiction of the Belgaum Court and jurisdiction was conferred upon the Belgaum Court to entertain a suit against a foreigner by Section 20 of the CPC if the cause of action arose within such territorial limits.

In their Lordships'' judgment the material time to consider the jurisdiction of the Court which passed the decree was the date when the suit was instituted and as on that date the Belgaum Court had jurisdiction to pass the decree, it was not an absolute nullity. ''The time for considering the competency of the Court executing the decree was the time it was called upon to execute it and as on that date the State of Jamkhandi had merged into the Bombay Province .it had ceased to be a foreign territory, the judgment-debtor had ceased to be a foreigner, the Jamkhandi and the Belgaum Courts had ceased to be foreign Courts vis-a-vis each other and both the Courts had become subject to a common municipal law, viz., the Dominion Civil P. C. The decree had therefore to be executed according to that law and questions of private international law could not be raised. The judgment-debtor''s status as a foreigner was considered as a mere impediment against the execution of an otherwise good decree and this impediment was held to have disappeared by the merger, which was an act of State, and the decree had therefore become capable of execution after the removal of that impediment by the merger.

This decision was approved by a Full Bench of the same High Court in - Bhagwan Shankar Vs. Rajaram Bapu Vithal, . Both these decisions were dissented from by the Mysore High Court in - AIR 1952 Mys 69 (D)'', Venkata Ramaiya J. observed at p. 75 that-

It seems to me that the status to be taken into account for deciding excitability is that at the time of decree and not at the time of execution.

In - ''Moosalcutty Hajee v. Pylotu Joseph AIR 1952 Trav-C 89 (H) an ex parte decree against a subject of the Cochin State, who had not submitted to its jurisdiction, was passed by a Court in the Province of Madras before the Constitution and execution was sought in the Trichur Court in the Travancore-Cochin State. The Court dismissed the execution by its order dated 12-7-1950. Subramania Iyer J. held that after the Constitution the judgment-debtor had become a citizen of India and had lost the status of a foreigner by the merger of the former Madras Provide(SIC) and the Travancore-Cochin State in the Union of India, and following the above-mentioned Bombay Full Bench decision he held that the impediment against the execution of the decree was removed at the time when the decree was sought to be executed and ordered execution of the decree. He however felt some difficulty in following the Bombay decision as can be seen from the following passage in his judgment (p. 91):

This case is a simple one as there is no contention raised on behalf of the Respondent that the decree was one that ought not to have been passed for any reason for which the claim or action could be resisted and the Respondent would have had to confess the judgment had he appeared in the Tellichery Court in answer to the summons. For instance, there was no contention that the claim is untrue or that it has been discharged, or that the Plaintiff is not entitled to sue or that the claim is barred by limitation or for any other available ground. A case where such pleas are or have to be put forward may present a different aspect and difficult question for consideration. The Defendant, not subject to the jurisdiction of a Court where he is sued, need not have appeared and contested if he was content not to have the execution outside the territory of the country in which the Court is situated. That may be a justification for him for not having appeared there and contested. When subsequently the obstacle in the way of execution of a decree passed ex parte is removed by an act of State, the question as to whether the Defendant should be given an opportunity to raise his comentions(SIC) in the suit and if so, when in what manner, and on what conditions, will be matters for consideration. It may be that in certain cases if liberty to defend the action be not granted to the Defendant, serious hardships will be caused, about which he might legitimately complain on the ground that he was not at fault in not having entered appearance and defended the action in the forum wherein it was presented.

In the Bombay decisions the provisions of the Constitution are nowhere referred, nor does it appear that the Supreme Court decisions in - Janardan Reddy and Others Vs. The State, and - Keshavan Madhava Menon Vs. The State of Bombay, were brought to their Lordships'' notice The provisions of the Constitution are clear and with great respect it cannot be said that the decrees passed by. the Bombay High Court before the Constitution are decrees of a Civil Court in the territory of India and the Saurashtra State, cannot be called upon to execute such decrees by the mere fact that the Bombay State and the Saurashtra State became part of a common Union. If the status of the judgment-debtor is considered as a mere impediment in the way of the execution of the decree the Constitution has not the effect of removing that impediment. It can only be ''removed by legislation by the State, in which the decree is sought to be executed, and even if the competency of the Saurashtra Court to execute the decree has to be judged at the time when it is called upon to execute it, the provisions of the Constitution alone do not confer upon the Courts jurisdiction to execute a decree passed before the Constitution by a Court of Anr. State or Province.

The Bombay decisions were followed by a Full Bench of this Court in - ''Kala Bechar v. Mohan Bhagwan AIR 1953 Sau 16 (I) to which I was a concurring party. In that case the decree sought to be-executed was passed by a Court of the Vala State in Kathiawar against a judgment- debtor, who was a resident of the Umrala Mahal in the Bhavnagar State, and he had not appeared after service of summons and the decree was passed ex parte. The decree could be enforced in the Bhavnagar State by a suit only and that suit was barred by time. Thereafter the Vala State and the Bhavnagar State merged with other States to form a common State of Saurashtra and the decree-holder applied for execution of the decree in the Court of the Civil Judge, Junior Division, Sihor-Umrala after getting it transferred to that Court. We allowed execution of the decree relying on the Bombay decisions. Our attention was however not drawn to the Supreme Court decisions of - ''Keshavan Madhava v. State of Bombay (B)'' and. - ''Janardhan Reddy v. State (C)'', nor was the constitutional aspect argued before us.

There was also the further fact that after the formation of the Saurashtra State, His Highness the Rajpramukh had promulgated the Ordinance No. 4 of 1948, and we held on a construction of the provisions of that Ordinance that the decree in question must be deemed to have been passed by the Vala Court established under the Ordinance and it was therefore executable by the Sihor- Umrala Court just as the decrees passed by the Vala Court after the formation of the State of Saurashtra were executable in other Courts of the Saurashtra State. Thus one of the grounds on which the decision rested was that although the decree in question was passed before the Vala and the Bhavnagar States merged into the Saurashtra State, it was given the force of a decree of a municipal Court and the impediment against execution of the decree under the rule of private international law was removed by express legislation. This decision therefore continues to be good law, so far as it rests upon the Saurashtra law.

Another decision of this Court in which we followed the Bombay Pull Bench decision and the Full Bench decision of this High Court and to which also I was a concurring party, was in - ''Lohar Gokaldas Ramji v. Jethalal Tribhovandas'' Second Appeal No. 19 of 1952 (Sau) (J) and - ''Sutar Kala Mavji v. Dharamshi Liladhar'' Civil Revn. Appln. No. 182 of 1951 (Sau) (K), both of which were decided by a common judgment. In - ''Second Appeal No. 19 of 1952 (Sau) (J)'' the question was about the execution of an ex parte decree passed by the Bombay City Civil Court against a resident of Saurashtra, who had not submitted to the jurisdiction of that Court. The decree was passed on 7-6-1949 and its execution was sought by a darkhast dated 4-4-51.

In-''Civil Revn. Appln. No. 182 of 1951 (Sau) (K)" the question related to the execution of an ex parte decree of the Small Causes Court at Calcutta passed against a subject of Saurashtra on 4-1-1950, and execution was sought by the darkhast dated 13-1-51. Both the decrees were passed before the Constitution. The Supreme Court decisions had not been cited in those cases also; otherwise in view of the previous Full Bench decision in - ''AIR 1953 Sau 16(I)'' we would have considered the question of referring them to the Full Bench and not allowed execution.

The next decision of this High Court in which the Bombay Full Bench decision was followed was - ''First Appeal No. 11 of 1952 (Sau; (L)''. I was a concurring party to this decision also. That was the case of a decree of the Bombay City Civil Court on an award passed on 17-8-51, i.e., after the Constitution. As the decree had been passed after the Constitution, Article 261 applied to that decree and that decision is a good decision. It is therefore clear that a decree of the Bombay High Court passed before the Constitution does not automatically become executable under Article 261(3) of the Constitution.

Under Article 261(3) of the Constitution it has to be shown not only that the decree sought to be executed is a decree of a Civil Court in the territory of India but it has also to be shown that the decree is capable of execution according to law. I have discussed above how a decree of the Bombay High Court cannot be regarded as a decree passed by a Civil Court in the territory of India. I shall now discuss the question whether the Appellant''s decree is capable of execution according to law. The expression ''capable of execution according to law'' means executable according to the law in force in Saurashtra and the Appellant''s decree can be executed if the Saurashtra law permits such execution. I have already pointed out that long before the date of the Constitution the enforcement of the decree, which could be obtained by means of a suit only, was; barred by the law of limitation. That continued to be the law even after the date of the Constitution. Therefore an absolute bar against the execution of this decree had come into existence by lapse of time before the Constitution and the Article has not the effect of removing that bar. If the Article is construed as ipso facto removing the bar of limitation it would lead to absurd results.

In - ''Janardhan Reddy''s case (C)'' the Attorney General had argued that if a wide construction was placed on Article 136 and decrees passed before the Constitution were made subject to the appellate jurisdiction of the Supreme Court, several rights would be created. Such rights would arise not only in criminal cases (the petition before the Supreme Court was against a conviction) but in civil cases also and they can be exercised without any limitation as to the period within which the application (for leave) had to be made with the result that old judgments might also be called into question. The Supreme Court accepted this argument. The same argument applies against a wider construction of Article 261(3) and decrees, the execution of which had become barred by limitation cannot be revised by this Article. If the execution of the decree had become barred by limitation under Article 183 of the Limitation Act, the very Bombay High Court which passed the decree would have refused to execute the decree notwithstanding Article 261(3) of the Constitution and it is absurd to expect that a Court of the Saurashtra State should execute the decree although its execution is barred by the Saurashtra law. I am therefore satisfied that the decree cannot be executed under Article 261(3) on the further ground that its execution is barred by law.

I shall now deal with the second ground urged in support of the maintainability of the present darkhast based on the CPC as applied to Saurashtra by the CPC (Amendment Act) 1951 (2 of 1951). That Act came into force in Saurashtra on 1-4-1951; the present darkhast was filed on 1-4-1952 and it is argued that independently of Article 261(3) of the Constitution, it was governed by the CPC as applied by that Act and the Court has no jurisdiction to refuse execution.

The CPC (Amendment) Act, 1951, substituted Anr. definition of a foreign Court for the old definition. According to the new definition a foreign Court means "A Court outside India and not established or continued by the authority of the Central Government." A decree passed by the Bombay High Court became no doubt directly executable in Saurashtra after the CPC (Amendment) Act, 1951. Assuming that the provisions of this Act apply to decrees passed before the Constitution such execution is subject to the saving clause in Section 20 of the Act whereby the CPC of Saurashtra was repealed subject nevertheless to the proviso that such repeal was not to affect the previous operation of any law so repealed, which means that they could be executed under that Act if their execution was not barred by the operation of the previous law. I have already shown that execution of this decree was already barred by the Law of Limitation of Saurashtra immediately before the application of this Act, and therefore, it cannot be executed even under the provisions of the CPC (Amendment) Act, 1951.

In the result the order of the Civil Judge is confirmed and the appeal is ordered to be dismissed. There will be no order as to costs.

Shah, C.J.

I agree.

Chhatpar, J.

I agree.