Kishendas vs Indo-Carnatic Bank

Jaganmohan Reddy, J.—This appeal comes before us on a reference our brother Qamar Hasan J. as involving an implant question of law, viz; the excitability of decree passed by the Madras High Court in 1940 the Courts of the then Hyderabad State on 1 ground of it being a foreign decree. There is dispute with respect to the facts. The responded the Indo-Camatic Bank Ltd. Madras, went i: liquidation and a liquidator was appointed by original side of the Madras High Court. The lie dactor filed an application u/s 191 of Indian Companies Act for the recovery of a sum Rs. 1,375/-from the appellant who was a sub of His Exalted Highness the Nizam and resident Hyderabad, on account of unpaid calls and Court passed an ex party order on 15-8-1940 Asa the appellant to pay this sum to the liquidator. liquidator presented E. P. 170/1951 praying transmission of the decree which was ordered 16-3-1951.

The liquidator filed an execution petition the City Civil Court on 7-8-1952 for execution of decree, but the appellant-judgment-debtor took ejection to its excitability and urged among on grounds that the decree of the Madras High C was a decree of a foreign court passed against subject of the Hyderabad State and the Ma High Court could not exercise jurisdiction and subsequent changes in the law cannot validate order which was otherwise invalid and that the I was barred by limitation.

The Chief City Civil Judge by his order d 15-1-1953, relying upon a Bench Judgment of erstwhile Hyderabad High Court in Dyna Machine Co. v. Syed Jahangir Ali, ILR 1952 1030: (AIR 1953 Hyd. 19) (A), held that the that could be executed by the Courts of the erst Indian States which cannot be construed as for courts after the promulgation of the Constitute India. He further held that the execution he was not barred under Article 183 of the Limit Act. In this view he directed the issue of a rant of attachment. The judgment-debtor filed appeal challenging the excitability of the on the ground that it is a foreign decree.

The determination of the question no. fore us relating to the excitability of the do of those courts which were foreign courts before partition of India or before the coming into of the Constitution of India, by the Courts have now become domestic courts, has given are conflicting judgments in different High Court Bombay High Court in Bhagwan v. Rajaram. 1951 Bom 125 (FB) (B), the Madhya Bharat Court in Brajmohan v. Kishorilal, (S) AIR 1955 B. 1 (FB) (C) and the Hyderabad Court in ILR Hyd 1030: (AIR 1953 Hyd 19) (A) held the that the decrees passed by the Courts in what provinces in India were decrees with an improvement and this impediment having been remove political changes beginning from the Indian pendents in 1947 and culminating in the (sic)mation of these Courts which were then consforeign Courts into domestic courts and the ''foreign radiators into citizens of India by the promulgation the Constitution, such decrees become executable decrees of the Indian Courts and that no question of vested rights would arise as the changes high took place were not changes arising due to acts of the Legislature but were due to an act State.

The Mysore High Court in Subbaraya Setty & Sons v. Palani Chetty & Sons, AIR 1952 Mys 69(FB) the Calcutta High Court in The Owners and Partners of the firm named Shah Kantilal Vs. Dominion of India owing East Indian Railway, and the Nagpur High Court in AIR 1955 103 (Nagpur) and Firm Kanhaiyalal Mohanlal Somani v. Paramsukh, AIR 1956 Nag 273 the Allahabad High Court in Maloji Rao Narsingh Rao Vs. Sankar Saran and Others, ; the Punjab High court in Firm Radhe Sham Roshan Lal v. Kundan 1 Mohanlal (S) AIR 1956 Punj 193 (FB) (I), and Rajasthan High Court in Laxmichand Mst. Tipuri, (S) AIR 1956 Raj 81 B) (J) held that the decrees were a lity and. the subsequent changes did not like them valid and executable. Some of these also decided that the immunity from execution a vested right was saved by virtue &f Section of the CPC Amendment Act f 1951 and in some a distinction was sought to made between a decree passed by the Courts of Provinces or Part A States which were sought be executed against a judgment-debtor who was subject of a Native State merged in the Part A (sic)e and those passed by a Native State which was that to be executed in a Part A State the former right held to be executable while the latter not.

On a full and careful consideration of the ficting case law and of the weighty opinions of need authors on the subject including the recent considered article on "Recognition and Executor Foreign Judgments and Decrees" in 1956 1221 (Journal Portion), we propose in the first mince to state what in our view is the legal position relevant to the question before us for consideration We will then examine the several decisions certain to what extent they accord with our and whether it is possible to reconcile any are at variance with those views.

It is a matter beyond any controversy that prior a Constitution of India judgments and decrees courts in what were then called Native States foreign judgments and their enforcement in Provinces of India was subject to the provisions he Indian Civil Procedure Code. Similarly mints of the Courts in the Provinces of India (were then termed as British India) were foreign mints vis-a-vis the native States their enforce depending upon the provisions contained, in respective Civil Procedure Codes in force in States. After the Indian Independence and the Constitution certain political changes took in some of the States which had acceded to Indian Union.

Some of them had merged in the erstwhile Indian Provinces, while some others joined her forming bigger units. On the enforce-off the Constitution four categories of States into existence former British Indian Provinces he ''A'' States former native States Part ''B'' States, and some other territories both native States as well as British Indian Provinces which comprised of the Chief Commissioner''s Provinces were classified as Part ''C'' States, while the Andaman and Nicobar islands were classified as Part ''D" States. Clause (3) of Article 261 of the Constitution provides that final judgments or orders delivered or passed by the Civil Courts in any party of India shall be capable of execution within that territory but notwithstanding this provision the execution of the final judgments and orders of the Civil Courts depended upon the provisions of the CPC in force in the respective territories.

This is so because the provisions of clause (3) of Article 561 are not only prospective, but also specifically make the execution of Civil Court decrees and orders subject to the law in force in that territory. In Janardan Reddy and Others Vs. The State of Hyderabad and Others, and Keshavan v. State-of Bombay, AIR 1951 SC 128 (L), their Lordships of the Supreme Court not only laid down that the Constitution was not retrospective but it cannot be held applicable to pending cases. On the 1st April, 1951 the Indian CPC was applied to the erstwhile native States by the CPC Amendment Act, II of 1951, and since that date the whole of India has a common Civil Procedure Code. The execution of the decrees which were passed by the Courts of the erstwhile Indian States after the promulgation of the Constitution particularly after the 1st of April, 1951, has given rise, as we have already noticed, to divergence of opinion in the different High Courts.

In so far as the topic of enforcement of foreign judgments are concerned, the facts of this case confine us to a consideration of the topic to the case of judgments in persona which direct a sum of money to be paid to the successful party. Different countries vary considerably in their attitude towards the question of enforcement of foreign judgments. Whatever may be the different theories upon which the recognition of foreign judgments is based, in so far as the Anglo-Indian Law is concerned, the doctrine of obligation is well-recognised, that is, in the words of Blackburn, J. in Schibbsby v. Westernholz 1870-6 QB 155 at p. 159 (M), "the judgment of a Court of competent jurisdiction over the defendant imposes a duty or obligation on him to pay the sum for which judgment is given, which the courts in this country are bound to enforce". Even, this theory has been criticised by Mr. Martin Wolf on the ground that it presupposes an acquired right while it is just that very question which is under consideration.

Dicey in his Conflict of Laws, 4th Edition, page-19, enunciates recognition as being based on the common law principle that "any right, which has been duly acquired under the law of any civilized country is recognised and, in general, enforced by English. Courts." No foreign Judgment''s enforced Propria Vigors in another country. The effect given to it therefore, is not on the recognition of it as foreign judgment, but on the basis of the enforcement of a right acquired under it. It is worthy of note that" unlike the judgment of an English or an Indian. Court, it does not merge the original cause of action and the foreign judgment creditor has always the option of suing either on the original cause of action or on the foreign judgment.

But as we have said, having regard to the accepted principles of the English as well as the Indian Law a plaintiff who appears in Court on the basis of a foreign judgment is presumed to have acquired a right which presumption may be rebutted by the defendant on his establishing that the judgment for reasons recognised in law as defence cannot be enforced. When a foreign judgment is pleaded by way of defence it cannot be examined on merits and only be impeached on certain limited and recognised grounds. A judgment of a competent foreign Court on merits therefore is generally a complete answer to an identical action brought by the unsuccessful party in the English or Indian Courts. Foreign judgments can also be enforced on reciprocal basis under special Statutes enacted in this behalf. Section 13 of the Indian CPC embodies the principles of Private International Law and is as follows:

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be found on an incorrect view of international law or a refusal to recognise the law of (India) in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in (India).

Before the Indian Adaptation of Central Acts and Ordinances Order 1948, the words British India occurred in clauses (c) and.(f) of Section 13. It may also be stated that clause (1) of Section 8 of the Hyderabad civil Procedure Code, III of 1323 F., is analogous to Section 13 of the Indian Civil Procedure Code, clause (2) whereof is in the following terms:

Notwithstanding any provision in sub-section (I) when a suit has been filed on a foreign judgment in H. E. H. the Nizam''s Dominions, the Court in which the suit has been filed is not precluded from enquiring into the merits of the case, but when the defendant objects the Court shall make Such enquiry.

A foreign Court has been defined by Section 2 (5) before its amendment as a Court situated beyond the limits of British India which has no authority in British India and is not established or continued by the governor-central in Council and a foreign judgement u/s 2 (6) is a judgment of a foreign Court, In so far as Hyderabad is concerned a foreign Court under S. 2 (v) of the Hyderabad C.P.C. is a Court established or continued by a foreign government It is clear therefore, that judgments of the Courts of British India were foreign judgments in Hyderabad and similarly judgments of Hyderabad Courts were foreign judgments in British India. The judgment-debtor therefore, had the several defences open to him on a suit filed against him on a foreign judgment. We do not propose to.deal with the various defences except the one which is pertinent for the determination of the question immediately before us namely the effect of a judgment of a foreign court against a defendant who is not amenable the jurisdiction of that Court and has not submit to it, that is, a judgment passed ex parte against her The provisions of Section 13 of the Indian Civil Pressure Code as well as of Section 8 of the Hyderabad CPC recognise the conclusive of a foreign judgment with respect to any mater thereby directly adjudicated upon between the same parties or between parties under whom the or any of them claim litigating under the same these subject to the defects specified in clauses (a) to An ex parte decree passed either by the Brit Indian Courts as they then were or by the Courts of Nizam''s Dominions against a person who is not subject to the jurisdiction of the respective Courts want be without jurisdiction. Some Courts as we have ready observed, considered such decrees as absolve nullities, while others considered them subject an impediment. So far as the Hyderabad CPC is concerned, even foreign judgment which were not on merits would be enquired into the Courts in Hyderabad if the defendant object in other words, notwithstanding the defect on the count a Suit on a foreign judgment need not dismissed, but the merits enquired into.

A decree-holder from a Court in the erstw(sic) British Indian Province could either file a suit that judgment as a foreign judgment in the Government of the native States or file a suit on the origin cause of action, or execute the decree on recipes basis by virtue 0f a notification issued under Provisions analogous to Section 44 C. P. C. which empowered the Governor General in Council to Clare that the decrees of the Revenue or Civil C0urt situate in the territories of a Prince of any native S(sic) in alliance with His Majesty and not established continued by the authority of the Governor General in Council or any class of such decrees may be actuated in British India as if they have been passed courts of British India. The Hyderabad CPC did not contain any provisions analog to Section 44 so that the only remedy which Judgment-creditor and to enforce a foreign judgement was by way of a suit The question here is no a suit being filed on the basis of a foreign Judges but of the execution of what at the time of the I (sic) ing was a foreign decree.

The facts of the present case give rise to contention that the decree after the promulgation the Constitution particularly after the application the Indian CPC to the whole India is not a foreign decree and can be dirt executed. It is argued that after the 1-4-1951. CPC being common to the w(sic) of India, the decree could be transferred under sections 39 and 40 C. P. C. ignoring totally the Cher and validity of the decree at the time where was passed.

The relevant Sections 43 to 45 of the An met Code may now be set out:

Any decree passed by any civil Court established in any part of India to which the provisions of this Code do not extend, or by any central established or continued by the authority of Central Government outside India, may if it not be executed within the jurisdiction of the by which it was passed be executed in the in (sic) provided within the jurisdiction of any Court she territories to which this Code extends.

"44. The State Government may by notification the official Gazette, declare that the decrees any revenue Court in any part of India to which provisions of this Code do not extend, or any of such decrees, may be executed in the State they had been passed by Courts in that State.

So much of the foregoing sections of this as empowers a Court to send a decree for exes(sic) to another Court shall be construed as ems ring a Court in any State to send a decree for unions to any Court established by the authority is Central Government outside India to which. State Government has by notification in the off gazette declare this Section to apply.

(sic)combined reading of Sections 43 to 45 would show he Indian Courts have power (1) to execute the ie''s of those Indian Courts to which the C. P. C. not apply such as the scheduled districts (2) re-cute the decrees of the Civil Courts outside which are established by the authority of the all Government; (3) to execute the decrees of 3veune courts in any part of India to which the sions(sic) of the C. P. C. do not apply, and (4) scute decrees of the Indian courts in the States rich the State Government has notified that an 45 would apply. In our view the character acidity of the decree should be determined as the date when it was passed, not on the date it is sought to be executed. As we have state foreign judgment is not the judgment of the (sic)tic Court in which it is sought to be executed to original cause of action has not merged in it.

(sic) so far as the jurisdiction of the foreign judging the domestic sense is concerned, it is certain-lid. It is not that the judgment is not executable court in which it is passed even though the leant is not resident within the jurisdiction of court and has not submitted buns elf to that jurist If there is property whether moveable or (sic)eable belonging to the judgment-debtor or property accrues to him or money becomes due to subsequent to the passing of the decree within (sic)eign State, the judgment-creditor can execute agree as against that property or money. Sections to of the CPC before its (sic)nent dealt with these matters but in so far as force ability in a foreign state is concerned judgments passed without jurisdiction in the Sinai sense are not enforceable decrees.

(sic)rather they are termed nullity or absolute is a matter of little moment. If this is so the (sic)mt had the right to challenge the judgment ability when the judgment creditor seeks to file hereon. If he had the right to challenge the at as a nullity before the Indian Civil Procedure was applied to the whole of India, that (sic)jing a substantive one that is, the right to inform execution under such a decree cannot it away unless by express words or necessary intendment. u/s 8 of the Hyderabad Procedure Code, the appellant had a right (sic)nige the judgment of the Madras High Court ground of it being passed without juristic that it is not on merits or take up any other open to him. This right is not only not taken away, but by section 20 of the CPC Amendment Act, II of 1951, it has been saved The relevant provisions of Section 20 are as follows:

(1) If, immediately before the date on which the said Code comes into force in any Part B State there is in force in that State any law corresponding to the said Code that law shall on that date repealed repealed;

Provided that the repeal shall not affect. (a) the previous operation of any law so repealed or anything duly done or suffered thereunder, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed or....

A legal right according to Prof. Venkata Subba Rao in his Analytical'' & Historical Jurisprudence p. 304, involves several essential elements; but generally speaking the person thing and act are inseparably connected with it Prof. Holland in his "Elements of Jurisprudence page 88, seems to consider that with respect to the element of right as pertaining to something there are some rights which have no objects and that there can be rights without an object or pertaining to anything.. He illustrates his point by saying, "B is As servant. Here A is the ''person of inherence'', B is the ''person of incidence'', reasonable service is the ''act'' to which A is entitled. The ''object of the right is wanting''''. Therefore, he was of the view that the object should be a material thing. Salmond differs from this view and says that the object need not be tangible and points out that in the illustration given by Prof. Holland the object of the right is the skill knowledge strength time and so forth of the person bound by the duty.

It may be observed that where another has a duty I have a right. When another has no right I have immunity. When I am able to change the rights of others I have the power such as testamentary power. When I change my own rights I have capacity such as contractual capacity. It is therefore evident that immunity against an assertion of claim by another is also a right. In the words of Salmond in his Juristic prudence 10th edition, page 245, "immunity is that'' which other persons cannot do effectively in respect of me". The law confers an immunity by its refusal to accord active assistance to others. Viewed from this aspect the immunity of the defendant from the decree being passed against him on a foreign judgment of a Court to whose jurisdiction he has not submitted being a substantive right is specially saved to him by Section 20 of Act II of 1951. Brij Mohan Lall, J. in the case of - (S) Maloji Rao Narsingh Rao Vs. Sankar Saran and Others, while holding that the Courts in Gwalior or Madhya Bharat continued to be foreign courts notwithstanding the accession of Madhya Bharat to the Indian Union and notwithstanding the unification of India brought by the Constitution of India, and the immunity of the judgment-debtor from the decree of the Gwalior Court remained in tact observed at page 494 as follows:

It is, therefore, obvious that the right of treat ting the decree as a decree of domestic Court which the decree-holder now puts forward is a right given by the repeal of an Act and not by an Act of State. This aspect of the case appears to have been over looked in most of the rulings cited by the learned counsel for the decree-holder....

Menon, J. in the Travancore-Cochin case, Vareed v. Gopalbai, AIR 1954 Trav-Co. 358 (FB) (N) as will be observed hereinafter has also taken a similar view on the question of vested rights. We would prefer to rest Yuri judgment upon this unassailable ground even though on a consideration of the relevant authorities we would equally hold that the judgment at die time when it was given being an ex parte foreign judgment would be considered a nullity in Hyderabad and that being so, the subsequent promulgation of the Indian CPC cannot in any way cure the defect. We propose now to examine few of the relevant cases on this aspect of the matter,

The locus classic''s on the question of foreign decree is the case of Sirdar Gurdyal Singh v. Rajah of Faridkote, 21 Ind App 171 (PC) (O). There the Faridkote Court which was a foreign Court passed a money-decree against the defendant who has been a Treasurer of Faridkote, but at the date of the suit had ceased to be such being a resident of Jhind of which State he was a domicile subject. The decree was passed ex parte against him he paving ignored the processes served on him. Their Lordships of the Privy Council observed at page 185 as follows:

Under these circumstances there was in their Lordships'' opinion nothing to take this case out of the general rule that the plaintiff must sue in the Court to which the defendant is subject at the time of suit ("Actor Sequitur Forum Rei") which is rightly stated by Sir Robert Philimore (International Law Vol. 4, Section 891) to "lie at the root of all international and of most domestic jurisprudence on this matter''''. All jurisdiction is properly territorial and "Extra Territories Jus Dementi Immune Non Pate-Turk.

In a personal action to which none of these causes of jurisdiction apply a decree pronounced in Absent-em by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself is by international law an absolute nullity. He is under no obligation of any kind to obey it and it must be regarded as a mere nullity by the Courts of every nation except (when authorised by special local legislation) in the country of the forum by which it was pronounced.

These are doctrines laid down by all the leading authorities on international law among others by Story (Conflict of Laws 2nd edition Sections 546, 549, 553, 556, 586) and by Chancellor Kent (Commentaries, Vol. I, page 284, note 10th edition) and no exception is made to them in favour of the exercise of jurisdiction against a defendant not otherwise subject to it by the Courts of the country in which the cause of action arose or (in the cases of contract) by the Courts of the Locus solutionis. In those cases as well as all others when the action is personal the Courts of the country in which a defendant resides have power and they ought to be resorted to do justice.

In Bhagwan Shankar Vs. Rajaram Bapu Vithal, Full Bench of the Bombay High Court held that an ex parte decree passed by the Sholapur Court in the then British India against a defendant resident of Akalkot before the merger can be executed after its merger on the ground that the character of the Akalkot Court and the status of the defendant having changed the impediment which was initially there to the decree being enforced in the Akalkot disappeared and the decree which was unassailable the change came about became enforceable and cutable in the Courts of Akalkot. Chagla, C. J. c vering the judgment of the Full Bench found authority in the observations of their Lordships of Privy Council in Sirdar Gurdayal Singh''s case as contemplating the proposition that a decree be enforced in the forum by which it was pa(sic) provided special local legislation authorises forum and consequently the decree is only a nv(sic) in a limited sense.

It was observed at page 127 that "the way of putting the same idea is that the decree a valid decree, but it is not enforceable in co other than Courts where it was passed by reason private international law. Referring to the (sic) ment that a vested right was created in the defer by reason of an analogous provision to that of (sic)tion 13 (a) of the Akalkot CPC fore its merger it was held placing reliance on (sic)tion 5 of the Merger Order that that clause on refers to vested rights which have been affected repeal of any legislation which was in operation the merged States and

although the CPC of All has been repealed, Section 13 (a) has taken its in identical terms and therefore whatever prej(sic) has been caused to the defendant has not been by the repeal of any legislation. The prej(sic) has been caused by an Act of State which altered status of Akalkot Court a municipal Court and the defendant a citizen whereas Akalkot Council fore was a foreign Court and the defendant foreigner.

We are not aware of the terms of the merger were being dealt with in that case. Whatever be the effect of the merger order as an act of with great respect we are unable to appreciate observations negativing the vested right of defendant to resist a decree based on a foreign judgement or against the excitability of such a judge.In so far as Hyderabad is concerned, it remain independent entity and had not merged : Indian Union and became part of it only by of the notification issued by the Nizam in Nov 1949 and by the provisions of the Constitute self. This is no doubt an act of State, but not standing this act of State the laws in force territories of Hyderabad as in other territories specifically saved by Article 372 of the Cons and the Hyderabad CPC cci(sic) to govern the proceedings in Civil Courts.

Article 261 (3) as we have already point makes the final judgments or orders deliver passed by the civil courts in any part of territory of India capable of execution anywhere in that territory according to law which in sr(sic) Hyderabad is concerned is the Hyderabad Court. The act of State or political changes do not alter the nature and character of a foreign We have stated the principles upon which each judgments of foreign Courts even assume they were competent to pass them under the pal Law of that country are considered to butties. The reason for this is based on the people that a Court passing such a decree had no (sic) tunity of hearing the defendant and that it viced only on an ex parte view and the defend was not obliged to put in appearance in a (sic)irt might have been well advised to refrain from (sic)ng so or that it would be even expensive for him have the suit defended.

A judgment given without the presence of the defendant cannot be said to possess all the attributes a judicial determination. When the authority of against State cannot be extended beyond its territories would be futile to assume that the defendant would be and submit himself to the jurisdiction of the (sic)irt even on receiving a notice. This is not a mere initial objection, but goes to the root of the (sic)ter and affects the rights of the defendant who the assumption that he is not bound to appear in foreign court exercises that right by remaining ex (sic). The observations of the Bombay High Court as veil as the Courts that followed a similar view has been influenced by changes brought about in foreign courts and the foreign creditors there-easing their conclusion upon the principle of com allegiance.

The theory of nationality as a ground for confer jurisdiction has not been accepted at any rate re Commonwealth countries in spite of the fact they owed common allegiance to the king. Even treat Britain decrees of Courts of Scotland and land where the Englishmen and Soot men owed morn allegiance to their King are not directly reliable by the respective Courts. Prof. Cheshire is Private International Law, dealing with the of the five cases enumerated by Fry, J. in Rou(sic) v. Rousillon 1880-14 Ch. D. 351 (P) at p. 371 Ely that the Courts in England would consider defendant bound where he is a subject of a (sic)gn country in which the judgment had been objected says at page 606-607 as follows:

....It remains to consider the first case and certain whether the fact that the defendant is national of the foreign country where the judge has been obtained is sufficient to render him able to the jurisdiction of the local courts. There English authority which contains an actual portion to this effect, but the truth of the proposals been affirmed obiter in several cases. It is adopted by text-book writers. Nevertheless it admitted with some confidence that nationality the is not a reason which on any principle raised by private international law can justify exercise of jurisdiction. The argument usually exceed in its favour namely that a subject is to obey the commands of his Sovereign and acquire the judgments of his sovereign Courts is out of touch with the known facts of modern Allegiance is all important in Public International Law, but in itself has not been a contribution dement to the formation of Private International-Law Moreover, to make allegiance the of jurisdiction is scarcely practicable in the case British Commonwealth.

In Mathrukovil Kizhakkappat Matathil Ramalinga Aiyar Vs. Thavanur Matathil Krishna Pattar''s son Swaminatha Aiyar, , the (sic)s High Court in dealing with the contention judgment-debtor that the decree of the Dislodge Trichur given in his absence and with bmission was not executable against him in evince of Madras subsequent to the passing decree negatived and observed that

If the respondent was a Cochin Subject at the if the passing of the decree any declaration renouncing his Cochin nationality after the passing of the decree would leave the position unchanged Prof. C. H. Alexandrowicz in his article "International Law in India" observed as follows with reference to the case of Chunnilal Kasturchand Vs. Dundappa Damappa, which was approved by Chagla C. j.:

The question arises whether we are faced in these cases with a deviation from English private International Law according to which nationality and allegiance do not justify the exercise of jurisdiction though they are all important element in public international law. it seems probable that there is rather a confusion of ideas than a deviation''''. In our view nationality therefore cannot be a ground for conferring jurisdiction. The Privy Council as we have already observed, in Gurudayal Singh''s case (Q), leaves no doubt as to the absolute nullity of ex parte foreign decrees. The inference sought to be drawn by the learned Chief Justice of the Bombay High Court from the words "when authorised by special local legislation'''' from the observations of their Lordships of the Privy Council in Grurudayal Singh''s (O) as investing the decree with validity in a Court of a foreign state if the Court is so authorised by special or local legislation is with great respect not borne out by the last para of the observations of their Lordships cited above. The words in parenthesis in the observations in the Faridkote Case (O) have been used consistently with the principle laid down in Ashbury v. Ellis 1893 A. C. 339 (S) by the Privy Council.

In that case the New Zealand Legislature had authorised the local courts in any case of contracts made or to be performed in the colony to decide whether they will or will not proceed in the absence of the defendant & the question arose as to whether that rule was intra vires & reasonable. The Privy Council while declaring that the provision of law was intra vires and reasonable nonetheless categorically observed mat the question of enforceability of such a judgment in a foreign Court is not relevant in deciding the validity of the rule made and that it would be for the foreign Courts to determine the enforceability of that decree. At page 344 Lord Hob house said as follows:

But it was said that a judgment so obtained could not be enforced beyond the limits of New Zealand and several cases of suits founded on foreign judgments were cited. Their Lordships only refer to this argument to say that it is not relevant to the present issue. When a judgment of any tribunal comes to be enforced in another country its effect will be judged by the Courts of that country with regard to all the circumstances of the case.

The consideration which weighed with the Full Bench of the Bombay High Court was based on Section 20 (c) of the CPC which empowers the plaintiff to file a suit within the local limits of whose jurisdiction the cause of action wholly or in part arises. This provision does not as in the New Zealand case (S) affect the legal position '' or the enforceability of the decree by the Courts of a foreign country in the international sense nor can the Legislature by an enactment give those decrees extra-territorial effect. All that the observations in the Faridkote case (O), upon which reliance was placed by the Bombay High Court would an amount to is that the Legislature of a country has the power to direct its Court to entertain actions against absentee foreigners irrespective of the consideration whether and if so to what extent the courts will treat the decrees as binding and conclusive. This however, does not solve the present difficulty and the question for consideration is whether a decree which could not be enforced in the foreign territory at the time when it was passed could be enforced subsequently by reason of any political changes that may have taken place due to which the foreign territory is no longer considered as such, and whether the original cause of action which has not merged in the decree becomes merged by reason of these changes. In so far as the domestic judgments are concerned at common law" as Schmitthoff observes in his book "The English Conflict of Laws" at Page 459,

a security of lower order merges into a security of higher nature for the same debt. The judgment of an English Court of record for the payment of a sum of money creates by operation of law a contract of record the highest kind of security for a debt and consequently the original cause of action whether it was a simple contract or a contract by deed merges into the judgment and is extinguished.

Story in his Conflict of Laws 7th edition page 765-66, distinguishes domestic and foreign judgments as under :

Domestic judgments rest upon the conclusive force of the record, which is absolutely unimpeachable. Foreign judgments are mere matters an pais to be proved the same as an arbitration and award or an account stated to be established as matter of fact before the jury and by consequence subject to any contradiction or impeachment which might be urged against any other matter resting upon oral proof.

The decisions of the erstwhile Hyderabad High Court in ILR 1952 Hyd. 1030: (AIR 1953 Hyd. 19) (A) and Meherunnissa Begum v. Venkat Murli Manohar Rao, (S) AIR 1955 Hyd 184 (T) follow the Full Bench judgment of the Bombay High Court the latter also following the Full Bench Judgment in (S) AIR 1955 Madh-B 1 (C) and the judgment in the D. C. Machine Co.s case (A) In the D. C. Machine C6.s Case (A) reliance was placed on the case of Ram Dayal v. Shankarlal, ILR 1952 Hyd 196: (AIR 1952 Hyd 80 (FB) (U) But in our view that case cannot be relied upon having regard to the judgment of the Fuller Bench in Budhulal v. Deccan Banking Co. Ltd., (S) AIR 1955 Hyd 69 (V). It may be stated at once that in neither of these Hyderabad Cases has the question of vested right been argued or considered though reliance was placed upon the provisions of Article 261 (3) and upon the fact that after the promulgation of the Constitution there has been a common Indian citizenship. These cases do not take us further than the case of the Full Bench of the Bombay High Court.

The Full Bench of the Madhya Bharat High Court in Brajmohan Bose''s case (C) has by a majority of three to two followed the reasoning of the Bombay High Court basing their judgment upon the question of common citizenship. The reference to the Full Bench was concerned with the execution of the decree passed by the Courts of British India against a person who has not submitted to its jurisdiction by the Courts of Gwalior State after 26-1-19(sic) The force of the Mysore decision was sought to minimised on the ground that the cases of Dominion of India Vs. Hiralal Bothra, and Sai Hamid v. Federal Indian Assurance Co. Ltd. (sic) 1951 Punj 255 (X) were not referred to during argument and have not been noted by the learned Judges. Both the cases dealt with a converse position where decrees were passed by the Courts British India which on partition had gone to Pakistan and which were sought to be executed by Courts in the territories which remained in India.

The decisions in those cases no doubt turner the question whether the Courts passing the defend were on the date when they were transferred for (sic)cution were foreign courts and they held that were having regard to the existence of two separate Codes of Civil Procedure as adopted under Sec 18 (3) of Indian Independence Act and the Addition of existing Indian Laws Order of 1947. A si(sic) Bench of the Madras High Court in Messrs. Gc(sic) Knitting Co. v. Messrs. Mural Traders (India) in Market Karachi, 1949-2 Mad LJ 822: (AIR Mad 293) (Y) in a very short judgment merely for wed and applied the case of Dominion of India Hiralal (W). It may be observed that in all these no execution petition was pending in the Court the territories which remained in India and the revs were only sought to be executed after the August, 1947, when the provisions of the respect Codes of Civil Procedure had not empowered transfer of decree for execution in the territories the other State. We are however unable to understand the raises deter for these decisions. No d(sic) the Supreme Court in Kishori Lal Vs. Sm. Shanti Devi, in the case of an application presented on 18-3-1949 for recovery of aires maintenance before the First Class Magistrate. Delhi held that it is recoverable under an made by the Lahore Court on 29-3-1946. B(sic) observed.

...We see no reason why an order was competent and valid at the time it was and which could have been enforced in Delhi state cease to be competent simply by reason of (sic)tion....

These remarks were confined to applications Section 490, Cr. P. C, with which alone they concerned. Consequently it cannot be said the Lordships were expressing any opinion relate the excitability of civil decrees passed by the in the territories which have gone to Pakistan are however, unable to appreciate the basis Calcutta and Punjab Judgments (AIR 1950 C (W) AIR 1951 Punj 255 (X) or how a decree was passed by the domestic Courts and op(sic) throughout the territories could become judgments retrospectively. If the basis of the excitability depends upon the lack of any pc(sic) transfer decrees for execution on reciprocal the respective Codes of Civil Procedure the equally apply to the instant case where the was transferred by the Madras High Court the coming into force of the Indian C.P.C. in bad when there was no power to transfer a to the Hyderabad Courts. The assumption lying these decisions is not warranted by the plosions of Section 18 (3) of the Indian evidence Act which did not empower any change character of pre partition decrees either by inhumation or by adaptation. The sub-section merely authorises unless expressly provided in that Act.

that the law of British India and of the several1 parts thereof existing immediately before the sprinted date shall so far as applicable & with the necessary adaptations continue as the law of each ate of the new Dominions and the several parts hereof until other provision is made by laws of the legislature of the Dominion in question or by any her Legislature or other authority having power that behalf.

(sic)here is nothing in the above provision to authorise amendment of the Code in such a way as to affect the rights of a decree holder to execute his depose in any of the territories Of British India non as such a right affected.

The views expressed in the Full Bench judgement of AIR 1952 Mys 69 (D) AIR 1954 Trav(sic)- 358 (N) (S) AIR 1956 Raj 81 0) and the judgement of Allahabad High Court Nagpur High Court the Calcutta High Court are more in consonance (sic)erally with the view we have taken. In the sore case after referring to the Bombay judgment kataramaiah, J. observed:

the reason for refusing execution is not based the consideration of the Court passing the decree tag or not having jurisdiction to decide the case or law governing it but on principles govern decisions of Foreign Court.

(sic)in at page 75 he concluded thus:

In my opinion decrees which were in execution those of a Court in a foreign State according the law in force up to the date of the Constitution is not ceased to be so on account of the changes produced by the Constitution with respect to status of the definition of Foreign State or of territory India and that the date of decree not the date implication for execution is material to decide the (sic)tion of excitability.

(sic)rring to Article 261 (3) of the Constitution J. in AIR 1954 Trav-Co. 358 (N) stated at 360:

There can be no doubt that this provision has retrospective effect and that it will apply only to (sic)nents and orders delivered or passed subsequent -I-1950. It is clear from the provisions however the makers of the Constitution realised that or such a provision the judgment of one of the of India will be regarded as a foreign judge in every other State in the country in spite of volution of a common Indian federation. There of such full faith and credit clause in the Intro of Accession of 14-7-1949.

In a federation for all national purposes umbra by the Federal Constitution the State is of the one united under the same sovereign and (sic)rity and governed by the same laws. But In respect the States are necessarily foreign to and dependent of each other and a foreign judge for purposes of private international law need necessarily be of a state owing a different Allen.. It is enough if it is the judgment of another dependent or unconnected jurisdiction & as to where is of an independent or unconnected juristic-all have to be decided according to the law be In the State where execution is sought.

Dealing with the vested right based on Section 20 of the CPC (Amendment Act, II of 1051, after citing Salmond on Jurisprudence relating to the four classes of rights conferred by the law if was further observed at page 361 as follows:

...the defendant''s right in this case to immunity from execution on the ground that the decree is a nullity as far as the Cochin Courts are concerned by virtue of the definitions of foreign Court and foreign judgment in the Cochin CPC and the provisions of Section 11 of that Code which provided that a foreign judgment shall not be conclusive where it has not been pronounced by a Court of competent jurisdiction must necessarily be considered as a right of the fourth category saved by Section 20 of Act 2 of 1951.

The Owners and Partners of the firm named Shah Kantilal Vs. Dominion of India owing East Indian Railway, after examining the several arguments advanced upon the Instrument of Accession States Merger Order 1949. the Extra Provincial Jurisdiction Act the CPC and the Constitution of India observed at page 72 as follows:

The question is not to be determined by applying the test whether at the time of execution any of the sections of the CPC applies but must be determined in my judgment by the test whether such decrees by their nature of being foreign Court judgments are at all executable and this goes to the very root of their validity and enforceability. The principle that the executing Court does not go behind the decree has always been understood subject to the overriding question of whether the decree is a nullity or not. It is settled law that an executing Court can always refuse to execute a decree which is a nullity. A foreign judgment is not conclusive if it is in breach of any international law.

In that case the status and character of an ex parte decree passed by the Okhamandal Court in Baroda State on 21-10-1948 against the Dominion of India owning the East Indian Railway was sought to be executed by transferring such a decree to the Calcutta High Court. It was held that since the Indian Independence Act of 1947 and with the coming into being of the Dominion of India, the paramountry of the British Crown ceased and lapsed with the result that by the ordinary tests of international law and constitutional jurisprudence these native states became sovereign territories and that the only limitations were such as were imposed by the terms of the Indian Independence Act and specially in respect of customs communications and like matters u/s 7 of the Indian Independence Act. In the circumstances the ex parte decree by the Baroda Court was a foreign decree and could not be executed by the Calcutta High Court as it was a nullity notwithstanding the fact that the CPC had been applied throughout India including the territory in which the decree was passed and according to which a transfer of the decree to the Calcutta High Court could be made after 1-4-1951. The Bombay and Mysore decisions were fully considered and the argument based on Article 261 of the Constitution was dealt with. Again dealing with the argument whether in International Law a judgment can be passed against a foreign State the learned Judge observed at page 70:

On principles of international law it is well-settled that a suit against a foreign state is not entertained and no decree is passed against a foreign State unless the foreign state submits to such jurisdiction. This principle is founded on the doctrine that the sanction behind the Court in a State is the authority of the State in which the Court functions. As no sovereign State has any authority over another sovereign State it follows as a corollary that the Courts of one sovereign State can have no jurisdiction over another independent State except by its voluntary submission to such jurisdiction.

With great respect we agree with this statement of law.

The Nagpur High Court in (S) AUU955 Nag 103 (F) & AIR 1956 Nag 273 (G) & the Allahabad High Court in (S Maloji Rao Narsingh Rao Vs. Sankar Saran and Others, followed a similar line of reasoning in arriving at the same conclusions. The majority of the Full Bench of the Punjab High Court in (S) AIR 1956 Punj 193 (I) held that a decree passed by the Indore Court on 17-2-1948 was a foreign Court qua the Court in Punjab on the date of the decree (17-2-1948) and it could not, therefore, he executed in Courts in Punjab viz., Ludhiana on that date that in order to determine whether a certain decree is or is not a decree of a foreign Court the nature of that decree has to be determined at the time of its birth and not at any subsequent date that the right to execute a decree or a right to raise an objection to the decree are substantive and vested rights and cannot be taken away by a provision of law which is not retrospective that on the date the decree was passed, the judgment debtor could have objected that the decree was a nullity because it was a decree of a foreign court and that subsequent changes in the law could not take away that right.

Khosla, J. sought to distinguish two sets of cases one dealing with the execution of decrees passed by the British Indian Courts sought to be executed in the Courts of the erstwhile native States and the other decrees passed by the latter Courts sought to be executed in the former Courts. He observed at page 198 as follows:

The decree passed by a Court of a native State was never a good decree as far as India was concerned. It was a nullity where the defendant had not submitted himself to the jurisdiction of the Court. This disability could not be removed because a thing which is no nest cannot become a positive effective and legal entity. The decree of the Court of Indore was of no avail whatsoever in Ludhiana at the time it was passed and by the subsequent extension of the CPC to Indole this decree could not become executable at Ludhiana.

With respect to the decrees passed by the erstwhile British Indian Provinces he says:

A decree passed by a Court where the CPC applied could be executed throughout the territory of British India or Provinces as defined in Section 3 (45) General Clauses Act (10 of 1897) or Part A States as defined in the Constitution. This decree was, therefore, executable anywhere in India. The territory of India was extended by the merger of the native States and those States became subject to the law prevailed in India. In course of time the provisions of the CPC were extended to them and therefore a decree which was a good decree in India became a good decree in the area of native State also whereas the opposite case was quite, different.

With great respect we fail to understand the reasoning and at any rate, as we have already pointed out the case of Hyderabad was not one of merger n(sic) are the terms of any such merger under consideration. If the basis of the non-excitability of the decree is as clearly accepted in that judgment ba(sic) ed on the character of that decree on the date which it was passed no distinction can conceivable be made between a decree passed by the British Indian Courts before the merger or before the independence when it was a foreign decree, and a declassed by the Courts of a native State before the independence or the merger. In both cases character of the judgment would be that of a foreign judgment and if it suffers from any detect as want of jurisdiction or otherwise it will continue to be subject to that defect.

The question before the Full Bench of f(sic)Judges of the Rajasthan High Court in (S) AIR 19(sic)Raj 81 (J) was whether the ex parte decree pas in the former State of Jaipur against a respondent the former State of Dholpur in 1947 could be executed at Dholpur after 26-1-1950. The decrees all the five cases before that Full Bench of the R(sic) sthan High Court were passed by the Courts Bombay Beawar, Calcutta, Gauhati and Nasik, si(sic)ted outside the boundaries of the State of Rajastan and were similar in nature to the decrees which considered in the case of Premchand v. Danmal 1954 Raj. 4 (Zl). Wanchoo C. J., while hold that ex parte decrees passed in absent-em before advent of the Constitution against non-resident defendants, in personal actions, by Courts in c States which are now the territories of India which may now be sought to be executed in I sthan State are foreign decrees open to chall u/s 13, C. P. C. and inexecutable in 1 sthan iuter alia they have not been passed by a C of competent jurisdiction in the international s went on to observe,

so far as those foreign courts are conce: which are now situate within the boundaries o State of Rajasthan, k that, by virtue of these provisions, decrees of these courts, even if they foreign courts at the time when the decree were ed and even if the defendants were non-re; foreigners who had not submitted to their jurisdiction, become the decrees of the present cour Rajasthan, and are therefore executable without judgment debtors'' having the right to raise a section u/s 13 C. P. C.

This view was not necessary for the determine of the case as none of the appeals were from decrees of a territory which became part i State of Rajasthan. The matter was, however sidered merely because of a decision of a Full of three judges in Radhe Shiam v. Firm Sawai Basdeo Prasad, AIR 1953 (Raj 204 Z2) in why executability of such a decree fell for detetion. In any;case the question was consider the laws in force in the State of Rajasthan, su the Rajasthan High Court Ordinance No. XV ol t Rajasthan Civil Courts Ordinance No. VIII o and the Rajasthan Small Causes Courts Ore No. VIII of 1950. Although we are unable any difference in the applicability of the j principles to this particular case, we are no concerned with die latter view expressed by choo, C. J" and dissented to by Modi, J. as t(sic) jrely a question of interpretation of the three Ordi(sic) noes. The view on the general question has been rely put by the learned Chief Justice at page 84 is:

As the law stood at the time when the decrees are passed the defendants knew that they were not (sic)und to obey them, and that even if any decree was seed against them it would be a nullity in the (sic)ite to which they owed allegiance. In such Constances the defendants might not have thought it necessary to go and contest the suit even if they had (sic)d grounds for such contest.

To make all those decrees now executable beige of the political changes that have taken place this country after 1947 would, in my opinion be (sic)rking hardship on the judgment-debtors.

In our view therefore, both on principle as II as on the authority of the majority of Courts India an ex parte decree of the Madras High court a foreign Court on the date when it was pas sis not capable of being executed in the Hyderabad Courts even after the application of the Indian CPC to that State by the Code Civil Procedure (Amendment) Act II of 1951, even after part of the territory of that state has (sic)ged in the Andhra Pradesh as the laws in force hat State on the date of enforcement of the States reorganization Act will continue to be in force by use of the provisions of the said Act The vested (sic)t of the judgment-debtor to immunity still enures him.

Consequently the judgment of the Court (sic)w is set aside and the execution petition dismiss The appeal is allowed with costs here and below.