Murari Lal vs Firm Bhagwan Das Gurdyal

Shahmiri, J.

(1) The question we are called upon to decide in this, appeal filed against an order of the Subordinate Judge (City Judge) Jammu is whether an ex

parte decree passed by the Senior Subordinate Judge, Amritsar, on 461951 against the respondent, a State subject (now designated as a

permanent resident* or the State) was executable in the State Courts on the date when the appellant decreeholder's application for execution

instituted on> 27101951 corresponding to llth Katik 2008 was! rejected by. the executing Court of the aforesaid} Subordinate Judge, Jammu, on

25101952 corres1 ponding to 10th Katik 2009. Section 44 of the State Civil P. C., as it stood at the time when the decree in this case was sought

to be executed by the appellant, read as follows:

His Highness may, by notification in the Government Gazette, declare that the decrees of any Civil or Revenue Courts situate in British India or of

any Court established or continued by the authority of the GovernorGeneral in Council outside British India or of any Court in the territories of any

Indian Prince or State in alliance with His Majesty and not established or continued by the authority of the GovernorGeneral in Council, or any

class of such decrees, may be executed, in the State as if they had been passed by the Courts of the State and in the manner herein provided.

It may be stated here that it is contended on behalf of the respondent that this provision which wasbased on a reciprocal agreement between this

State and the then Government of India could not be applied to this case, as all treaties and agreements, in force between His Majesty and the

rulers of Indian States lapsed at the date when the Dominionsof India and Pakistan came into being i.e., 1581947 under S. 7(l)(b) of the Indian

Independence Act. But this contention has no force whatsoever. It fails to take note of the proviso to subs. (1) of S. 7 of the Act which clearly lays

down that notwithstanding anything in paragraph (b) of the above subsection effect shall be continued to be given to the provisions of any such

agreement until it is denounced by either side or is superseded by a subsequent agreement.

Now, though decrees passed by the British Indian Courts were executable in the State under S. 44 referred to above, yet in accordance with the

wellknown principle of international law, as enunciated by their Lordships of the Privy Council in 'Gurdyal Singh v. Rajah of Faridkot', 22 Cal 222

(A), such of these decrees as had been passed ex parte against the subjects of this State who had not submitted to the jurisdiction of these Courts

were nullity being decrees passed against 'absentee or nonresident foreigners' and could not be executed in the State. Despite the provision

contained in. S. 44 of the State Civil P. C. the Courts in British India were 'foreign Courts' and their judgments'foreign judgments' according to the

other provisionsof the Civil Procedure Code in force in the State,

Now, while the definitions of 'foreign Court' and 'foreign judgment' happened to remain unaltered in the State Civil P. C. till 2441954, a great

change had been effected in the State Constitution. Our State acceded to India on 28101947 and, when the Constitution of India came into

operation on 2611950, it was clearly provided therein (vide Article 1 and Schedule I to the Constitution) that the State of Jammu and Kashmir

was one of the part B States and its territories formed part of the territories of India. It, therefore, follows that after this change in the status of this

State was brought about a Court exercising jurisdiction in other States of India could not be regarded as a 'foreign Court The executing Court of

the Subordinate Judge, Jammu, might, however, have been misled by the fact that the Constitution (Application to Jammu and Kashmir) Order,

1950 did not make Art. 5 of the Constitution which contains the definition of a citizen of India applicable to the State.

But whatever doubt there may have been as regards the position of the State subjects outside the State in India at that time, it has become

absolutely clear that since the promulgation of the Constitution (Application to Jammu & Kashmir) Order, 1954 the subjects of this State became

full citizens of India with effect from 2641950 (vide paragraph (3) of the said order). Under these circumstances, it cannot be said that 'the ex parte

decree which was passed in this case by the Senior Subordinate Judge of Amritsar on 461951 was passed against a nonresident foreigner. It was

clearly passed against a person who ' had become a citizen of India at that time.

(2) Further by the Constitution (Application to Jammu and Kashmir) Order, 1950 Art. 261(3) f the Constitution became applicable to the State

and it 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.

'This provision in the Constitution of India which is applicable to the State read with the provisions of S. 44 even as this Section stood at the time

when the execution application was rejected by the executing Court made the decree passed in this case by the Senior Subordinate Judge of

Amritsar executable in the State and the principle enunciated in the abovementioned Privy Council case could not be invoked.

(3) The position of law, as it now stands, is that the definition of 'foreign Court' in the Civil Procedure Code has been amended and 'foreign Court'

now means

a Court situate beyond the limits of India which has no authority in India and is not established or continued by the Central Government of India

and the above mentioned provision of S. 44 has .been substituted by the following, namely

Execution of decrees passed by Courts in other States in IndiaThe Government may by notification in the Government Gazette declare that

decrees of any Civil or Revenue Court situate in India beyond the limits of the Jammu and Kashmir State or of any Court established or continued

by the authority of the Central Government of India outside India or any class of such decrees may be executed in the State as if they had' been

passed by Courts of the State."" (Vide the. Code of Civil Procedure (Amendment) Act, 2011, published in the Government Gazette dated 12th

Baisakh, 2011 corresponding to 24th April, 1954).

The notification under the newly amended S. 44, Civil P. C., has also been issued and it is contained in the Government Gazette dated 14th

Sawan, 2011 corresponding to 2971954. According to this notification, the Government has declared:

that decrees of any civil court situate in India beyond the limits of the Jammu and Kashmir State or of any Court established or continued by the

authority of the Central Government outside India may, if they cannot be executed within the jurisdiction of the Court by which they were passed

be executed in the State as if they had been passed by Courts of the State.

There is, therefore, no dispute now regarding the excitability of decrees passed ex parte by Courts in other states of India in this State. But as

already indicated even S. 44 and other relevant provisions of the State Civil P. C., as these stood at the time of the pendency of the execution

application in the executingcourt, could not create, an impediment in the execution of this decree. According to the ordinary canons of

interpretation' the definition of 'foreign Court' in our Civil Procedure Code at the time must be held subservient to the provisions in tire Constitution

of India, namely, Art. 5, conferring on the State subjects the citizenship of India and cl. (3) of Art. 261 by which final judgments or orders

delivered or passed by civil courts in any part of the territory of India) are made capable of execution anywhere within that territory. The definition

of 'foreign Court' contained in the Civil P. C. at that time must to the' extent of its repugnancy to the provisions indicated above be held inoperative

and of no effect.

(4) Points similar to the one arising in this case have arisen in several cases in the other Indian High Courts and it has been held that even an ex

parte decree passed outside the limits of a formerly Indian State is executable in that' State. Reference in this connection may be made to 'Dyna

Craft Machine Co. v. Syed Jahangir Ali', AIR 1953 Hyd 19 (B), in which it was held that an ex parte decree passed by the Bombay High Court

prior to the commencement of the Constitution against a resident of the Hyderabad State, can no longer be regarded as nullity and therefore

incapable of execution in the Hyderabad State in view of the clear provisions of Art. 261 (3). It was observed that the Bombay High Court has

ceased to be a foreign Court visavis the Hyderabad State Courts and the impediment ""to execution of such decree which as formerly existing has

now ceased to exist by reason of Hyderabad having become a part of the territory of India. 'Brajmohan v. Kishori Lal', AIR 1955 MadhB 1 (FB)

(C), is also to the same effect. In particular, it declares that the validity of the decree is to be determined by reference to the law in existence on the

date the Court is called upon to execute the decree and not by reference to the position of the Courts on the date on which the decree is passed.

In 'ChunniLal v. Dundappa', AIR 1951 Bom 190 (D), it has been held that the relevant date for ascertaining the nature of the decree was not the

date of filing the execution but the date on which the Court was called upon to pass an order for execution. It was added that even the appellate

Court had power to take notice of subsequent events and order execution in order to shorten litigation and to do complete justice between the

parties. It may as well be noted here that the decrees passed by our Courts are similarly exe cutable in other States of India. Although the Indian

Civil Procedure Code does not extend to this State, the provisions of the Code have recently been so amended by the Central Legislature as to

provide for execution in other States of India of decrees passed by our Courts as if these had been passed by the Courts in those States.

(5) For the foregoing reasons, we hold that the ex parte decree in this case is executable in the State Courts and that the principle laid down in 22

Cal 222 (PC) (A) is not applicable to it. We, therefore, accept this appeal, set aside the order of the executing Court below and direct it to

readmit the execution application to its original number and to dispose of it according to law. The respondent may object to the execution of the

decree on such other grounds as may be open to him under law. No order as to costs.

(6) WAZIR C. J.: I agree.

(7) KILAM J.: I too agree.

(8) V.R.B. Appeal allowed.