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Judgment
Govinda Menon, J.—A. A. O. N. 85 of 1951: The short facts which have given rise to the above appeal are as follows: Defendant 1 in C.
R. No. 172 of 1932 on the file of the High Court, Rangoon, was a firm of which defendants 2 and 3 were partners and the suit against them was
for recovery of a sum of Rs. 48000 and odd. On 25-5-1933 after the refusal of the request by the defendants'' advocate for an adjournment of the
suit an ex parte decree was passed as prayed for. By E. A. No. 613 of 1933 on the file of the Rangoon High Court the decree was transmitted for
execution to the Sub-Court, Deva-kottah, where it was alleged that the properties of the judgment-debtors were situate. 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of 1945 was withdrawn and dismissed.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. No. 29 of 1947 was ultimately dismissed on 12-12-1949.
E. P. No. 134 of 1950 dated 14-4-1950 in the lower Court was a petition to execute the decree in C. R. No. 172 of 1933 by treating that
petition as a continuation of E. P. No. 173 of 1944 and to order sale of items of immovable properties over which at the time or striking off of E.
P. No. 173 of 1944 attachment was held to continue. Defendant 2 who contested the application objected to the execution of the decree on the
ground that the Court had no jurisdiction to execute it as Section 44-A, Civil P. C. read with the reciprocity agreements has ceased to govern the
decree passed by the Rangoon High Court as India and Burma which were once component parts of the erstwhile British Empire have now
become sovereign independent Republics and also that execution petition was barred by limitation by reason of the provisions of Section 48, Civil
P. C. It was further alleged that E. P. No. 134 of 1950 cannot be treated as a continuation of E. P. No. 173 of 1944 which was finally disposed of
on 28-3-1947 and there was nothing pending in the Court which could be resuscitated or revived. The learned Subordinate Judge formulated three
points for consideration and after considering them held that E. Pi No. 134 of 1950 was not barred by limitation and therefore execution was
ordered to be proceeded with. Aggrieved by that order, defendant 2 has preferred the present C. M. A. No. 85 of 1951 pending which he died
and his legal representatives have been brought on record as appellants 2 and 3. Respondents 2 and 3 are respectively defendants 3 and 4 and the
contesting respondent 1 is the plain-tiff-decree-holder.
Various questions of law were raised before us. Mr. B.V. Viswanatha Aiyar in an interesting argument placed before us a number of authorities
bearing on the points under consideration and we are of the opinion that on one of the points raised by him the appeal has to be allowed. Non-
applicability of Section 44-A. Civil P. C. to these proceedings because of the declaration of Burma as an Independent Sovereign Republic on 4-1-
1948 is one of the main questions raised. It is also argued that the application is barred by Section 48. Civil P. C. and that E. P. No. 134 of 1950
cannot be treated as a continuation of E. P. No. 173 of 1944 deemed to be pending final disposal in the Court of the Subordinate Judge. If we
come 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.
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.
A further change was effected after the Indian Independence Act of 1947 came into force on 15-8-1947'' When India became a dominion
under the British ''Crown and on 26-1-1950 by the Constitution which governs us today India became a Sovereign'' Independent Republic. On 4-
1-1948, Burma declared its independence and has from that date ceased to be a'' member of a commonwealth which recognises the Queen of
England as the common link. The result is that the relationship between India and Burma today is just like that Between any other independent
countries either in the East or in the West. Therefore with respect to decrees passed by the Burmese Courts they are either governed by Section
Civil P. C. relating to foreign judgments or Section 44-A, Civil P. C., concerning execution of decrees passed by the Courts in the United
Kingdom and other reciprocating territories.
The history, of Section 44-A, Civil P. C. may be considered. This section was introduced into the CPC for, the first time by Section 2 of Act 8
of 1937, and therefore, till then there was no provision in the CPC by which decrees passed outside India and Burma could be executed in British
Indian Courts. By Section 2 of Foreign Judgments (Reciprocal Enforcement) Act, 1933 23 Geo. V, Ch. 13 a foreign judgment has been defined
as a judgment or order, given or made by a Court in any civil proceedings or a judgment or order given or made by a Court in any criminal
proceedings for the payment of a sum of money in respect of compensation or damages to an injured party.......There are other provisions in the
Act by which foreign judgments could be enforced in the United Kingdom. An order applying that Act to British India and Burma came into force
on 18-11-1938 and was repealed by the Reciprocal Enforcements of judgments (India) Order, 1953, which came into force on 1-3-1953. This
latter order extended Part I of the Act to those territories of the Republic of India which are named in the schedule to the Order. It was after the
passing of the Foreign Judgments (Reciprocal Enforcement) Act, 1933, that a similar provision was enacted in the CPC by which Section 44-A
was introduced. Section 44-A as it originally stood runs as follows:
Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in District
Court the decree may be executed in British India as if it had been passed by the District Court.
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.
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 notification in the (official gazette) declared to be 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 III; ""Decree"" with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable
hi respect of taxes or other charges of a like nature or in respect of a fine or other penalty and-
(a) with reference to superior Courts in the United Kingdom, includes judgments given and decrees made in any Court in appeals against such
decrees or judgments, but
(b) in no case includes an arbitration award, even if such award is enforceable as a decree or judgment.
After the declaration of independence the following amendments were made:
(a) in Sub-section (1) the words ""the United Kingdom or"" shall be omitted;
(b) for Explanations 1 to 3 Inclusive, the following Explanations shall be substituted, namely:
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 purpose 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 payable
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 is enforceable as a decree or judgment,
By a notification of the Government of India in the later Home Department No. 286/36 Judicial dated 27-3-1939 Burma was declared to be
reciprocating territory so that decrees passed by Burmese Courts could be executed in India in accordance with the provisions of Section 44-A,
Civil P. C.
The declaration of Independence of Burma changed the situation and there was the cancellation of notification regarding Burma as a
reciprocating territory, by a notification dated 21-6-1952 which runs as follows:
S.R.D. 1114; in exercise of the powers conferred by Section 44-A, Civil P. C. 1908 (Act 5 of 1908) the Central Government hereby directs that
the notification of the Government 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.
By Act 71 of 1952 in Section 44-A, Civil P. C. in Sub-section (1) the words ""the United Kingdom or"" hare 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 is enforceable as a decree or judgment.
Foreign Court and foreign judgment arc defined in Clause (5) and (6) of Section 2, Civil P. C. in the following terms:
''Foreign court'' means a Court situate beyond the limits of India and not established or continued by the authority of the Central Government.
''Foreign Judgment'' means the judgment of a foreign Court. For the purposes of the'' Constitution, Article 367(3) defines ""foreign State"" as any
State other than India.
The position, therefore, obtaining to our country after it became a Republic is as follows: A foreign judgment which includes a decree of a
foreign Court can be the subject-matter of a suit if the same is filed within the period of limitation provided in Article 117, Indian Limitation Act and
it shall be conclusive as to any matter directly adjudicated upon between the same parties or between parties under whom they or any of them
claim litigating under the same title except under the circumstances set out in Clause (a) to (f) of Section 13, Civil P. C. A party who has obtained a
judgment in a foreign Court can, therefore, sue upon it in the Indian Courts and if such a judgment does not contravene any of the six exceptions
just now referred to the same shall be conclusive in a suit but the procedure for obtaining relief should be by way of a suit on the original side and
not by way of an application. With regard to decrees of a reciprocating territory contemplated in the explanation to Section 44-A no suit is
necessary but the same can be executed by the application of the provisions of Section 47, Civil P. C. The distinction that has to be borne in mind
is that reciprocating territories enjoy greater privilege regarding execution of decrees of their superior Courts in our country than are enjoyed by the
non-reciprocating territories. If, therefore, Burma has continued to be a reciprocating territory the decrees of Burmese Courts could have been as
effectively executed in our country by the application of Section 44-A, Civil P. C. just like a decree of any Court in India. so far as Courts of the
United Kingdom are concerned, the judgments of those Courts are treated as those of a reciprocating territory as a result of an order under
Foreign Judgments (Reciprocal Enforcement) Act, 1933, which came into force on 1-3-1953 applying Part I of the Act to the territories of the
Republic or India which are named in the schedule to the order.
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 jurisdiction over the defendant imposes a duty or obligation on him to pay the sum for which the judgment
is given which the Courts in this country are bound to enforce. In other words a new right has been vested in the creditor and a new obligation
imposed upon the debtor at the instance of the foreign Court.
Cheshire discusses the doctrine of obligation in great detail at pp. 587 to 589. It is pointed out that in the case of a foreign judgment there is no
merger of the cause of action as in the case of a decision of a municipal Court for in such a case the cause of action is merged in the judgment
(transit in rem judicatam). But this is not so in the case of a foreign judgment where the plaintiff has his option either to resort to the original ground
of action or to sue on the judgment to recover provided, of course, that the judgment has not been satisfied. This was the law based upon the
comity of nations as understood in private international law but at present in England the direct enforcement of foreign judgments is allowed under
the various Acts beginning with judgments Extension Act, 1868, and ending with Foreign Judgments Reciprocal Enforcement Act, 1933. In Yukon
Consolidated Gold Corporation v. Clark 1938 2 KB 241 Greer L. J. stated thus:
It was fully appreciated by those who thought about foreign judgments that British judgments were never enforced as of right in foreign Courts and
that was believed and rightly believed to operate as an injustice to this country. Whereas we enforce foreign judgments by means of an action in
this country foreign countries refuse to enforce the judgments obtained in this country and it was to deal with that situation that the Act of 1933 was
passed but incidentally it also dealt with Dominion judgments registered under the Act.
A system of registration was introduced not only with respect to judgments of foreign countries but with respect to British dominions as well. It
is unnecessary to quote in extenso the discussion of it at pages 592 to 596. The result is that is judgment registered in England under the Act is for
the purposes of execution of the same force and effect and as if it had been obtained in the registering Court and subject to the same control and
jurisdiction. This is a great development on the Acts of 1860 and 1920. It was after this, that Section 44-A, Civil P. C. was introduced in the C. P.
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.
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 nonmerger doctrine. The Act provides for reciprocal direct enforement of money judgments of
politically foreign countries as well as those of British dominions, colonies, protectorates and mandated territories. It has supplanted the
Administration of Justice Act, 1920, as to protectorates and mandatories now already operating under the 1920 Act and provides that any
dominion, colony, protectorate or mandatory now operating under the 1920 Act which is henceforth brought within the new statute shall forthwith
cease to so operate. As a consequence the Act of 1920 will likely in time be completely superseded. An order for registration may be secured by
application to the proper Court within six years of the date of the judgment or after the date of the last appeal therefrom unless It has been wholly
satisfied or could hot be enforced by execution in the country of the original Court. Resistance to enforcement is made by a motion subsequent to
registration to have registration set aside. Registration must be set aside if the judgment is not one to which the Act applies or if certain specified
facts are established, all of which would constitute good defences at common law to an action upon a foreign judgment. The Court has discretion
to set aside a registration If it is established that the issue upon the adjudication of which the registered judgment was ''rendered was already res
judicata in another law district at the time at which it was rendered. Execution is to be in the mode prescribed for its own judgments by the Court
of registration.
We may also refer to Seton''s Judgments and Orders, Vol. I, pages 123-724 and 1523 to 1525; Graveson, the Conflict of Laws (Edn. 2) Ch. 19,
page 417 and foil, Wolff, Private International law, Section 250, pages 275-278; sir W. H. Rattigan, Private International Law, Ch. VII p. 219
and foll, (with special reference to India).
As has already been remarked Burma ceased to be a reciprocating territory as a result of the cancellation of the notification declaring British
Burma to be a reciprocating territory on 21-6-1952 with effect from 4-1-1948 and therefore Section 44-A, Civil P. C. is no longer applicable to
the execution of any decree passed by the Burmese Courts. The only other method by which a successful party in a foreign judgment obtained in a
Burmese Court ''can realise the fruits of his judgment is to sue upon such a judgment within the period allowed under Article 117, Limitation Act in
which 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. cannot apply and the Subordinate Judge, Devakottah, has no jurisdiction to execute the decree for the reason that
the reciprocity arrangement had ceased to exist from 4-1-1948. The only remedy, if there be, is to sue upon a foreign judgment u/s 13, Civil P. C,
within the period provided under Art: 117, Limitation Act provided the terms of the section are fully satisfied. There is no suit of this kind and we
are not concerned with any such question here. The scope and effect to be given to foreign judgments before the enactment of Section 44-A, Civil
P. C. had been the subject of various decisions, chief of Which is ILR 40 Mad 112: AIR 1916 PC 121. The other cases are: Chormal Balchand v.
Kasturi-chand Seraogi, ILR 63 Cal 103 ; Viswanathan v. Abdul Wajid, 67 Mad LW 147 ; Panchapakesa Iyer and Others Vs. K.M. Hussain
Muhammad Rowther and Another, and R.S. Rama Shenoi and Another Vs. M.A. Hallagna and Another, .
To reiterate if any foreign country establishes reciprocity in the matter of execution of decrees of that country by laws enacted there, Indian
Courts will do likewise by applying Section 44-A, Civil P. C., but if there is no arrangement establishing reciprocity, our Courts ''cannot apply
Section 44-A, 60 That suitor who has obtained a judgment & a foreign Court with which there are no such reciprocal relationships can only sue
u/s 13, Civil P. C. by fulfilling the conditions enumerated therein. Until 1947, when India was a part of the British Empire, the enforcement of
foreign judgments was conditioned upon the pattern of legislative enactments and Orders in Council prevalent in the United Kingdom and as such
Section 44-A, Civil P. C. is an embodiment in the Indian statute book of the existing laws in England. Today, therefore, a judgment of a Burmese
Court can have, no greater status ox validity in the Courts of the Indian Union than probably the one passed by a Court in Johanesberg, Pretoria or
Buenos Aires.
Incidentally it may be pointed out that the doctrine regarding the enforceability of foreign judgments has received considerable attention and has
become the subject of serious consideration in American Courts and it is useful to refer to them by way of analogy especially since in many res-
petts Section 44-A, .Civil P. C. can be said to be a succinct enactment of the principles obtaining in all the countries where Anglo-Saxon
Jurisprudence 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 fraudulent conveyances; but it
constitutes a good cause of action on which a suit may be maintained. The preponderance of authority supports the view that such a judgment in
favour of plaintiff does not merge the original cause of action, and is no bar to a subsequent action thereon, unless such judgment has been
satisfied. But a contrary doctrine has been asserted in some states. If the foreign judgment was for defendant, it will bar a new suit against him in
this country on the same demand.
Various authorities are quoted for the proposition that except on the basis of reciprocity the judgment. of a foreign Court cannot be executed in the
United States of America. Hilton v. Guyot, (1895). 159 US 113 : 40 Law Ed 95 and Ritchie v. McMullen, (1895) 159 US 235 : 40 Law Ed. 133
It is not necessary to refer to decisions of Courts other than the Supreme Court of the United States of America in this connection. With regard to
recognition of foreign judgments under the doctrine of comity it is useful to refer to Article 631 of Vol. 31 of American Jurisprudence:
No sovereign is bound in the absence of a special contract, to give effect within its dominions to a judgment rendered by the tribunals of another
country; it is at liberty to give or refuse effect to it, as may be found just and equitable, but the general comity, utility and convenience of nations
have established a usage among civilized states by which the final judgments of foreign Courts or competent jurisdiction are reciprocally carried
into effect under certain regulations and, restrictions which differ in different countries. Thus judgments of Courts of foreign countries are
recognised in the United States because of comity due from one nation to another, its Courts and judgments. Such recognition is granted to
judgments rendered by Courts of other nations with due regard to international duty and convenience, on the one hand to rights of citizens of the
United States and others under the protection of its laws, on the other hand. However, the policy of extending recognition to a judgment of a
foreign country may be regulated in accordance with settled traditions and concepts of what is wise and expedient."" (See also Story''s Conflict of
Laws, 8th Edn., Ch. 15 page 808 and foll.)
Section 1 of Article 4 of the Constitution of the United States provides that ""full faith and credit shall be given in each state to the public acts,
records, and judicial proceedings of every other state."" A similar provision has been enacted in our Constitution in Article 2.61.
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 AIR 1943 24 (Privy Council)
to the effect that during the time Burma remained a part of British India it was permissible u/s 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 presidency before the separation of Burma on 1-4-1937, the right to continue the suit had not been taken away by the Government of
India and Burma Act, 1935, and that the Court in the Madras Presidency had jurisdiction to try the suit even as regards immovable properties
situate in Burma were relied upon. Section 6, General Clauses Act laying down that the repeal of a statute should not affect vested rights as well as
the decisions in Kaunsilla v. Ishri Singh, ILR 32 All 499 (K) and AIR 1941 16 (Federal Court) , were cited in support of the proposition. None of
these authorities deal with execution of foreign judgments and with regard to the observations in AIR 1943 24 (Federal Court) , their Lordships
have held that if there had been no express prohibition against the continuance of pending proceedings to their normal conclusions either in the
Government of India Act, 1935, or in the Government of Burma Act, 1935 both of which were passed by the Parliament of Great Britain dealing
with the erstwhile possessions in the British Empire the inference is that pending proceedings have to reach their normal termination. The
observations of Varada-chariar J. in S. Girdharilal Son and Co. Vs. B. Kappini Gowder and Others, at pp. 694-95) (M) to which our attention
has been invited shows that a right of suit, a right of appeal and a right of distraint are all remedies for the enforcement of a right and that they are
substantive rights though remedial in nature. But there is no discussion to the effect that a right of execution is such a substantive right. On the other
hand a distinction between rules of law which in any way impair or destroy those rights and those which a litigant has to comply with for availing
himself of those remedial rights show by contrast that a'' right to execute is not a substantive one. The judgment of Basheer Ahmed Bayeed J. in
C.M.A. No. 107 of 1949 deals with conditions that existed before the cancellation of the reciprocal rights, and, therefore cannot be of any
assistance to decide the question at issue. On the other hand there are authoritative pronouncements, observations of Judges and opinions, of text
book writers, that there is no vested right in procedure. See Maxwell''s interpretation of Statutes, 10th Edn. by Gilbert H. B. Jackson, page 232
and the decisions in Papa Sastrial v. Anantarama Sastrial, ILR 3 Mad 98 . Sevai Rowther v. Tahsildar, Periakulam, 6 M LJ 122 and Bisseswar
Sonamut v. Jasoda-lal Chowdhury, ILR 40 Cal 704 (P).
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 Chunnilal Kasturchand Vs.
Dundappa Damappa, 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 u/s 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 Bombay. When the decree-holder appealed against the dismissal of his
execution petition it was held that the relevant date for ascertaining the nature of the decree was not the date of filing of execution but the date on
which the-Court was called upon to pass an order for execution. Such being the case when the native State had ceased to be a foreign territory the
decree was executable in a Bombay Court. This case is direct authority for holding that the state of things prevailing at the time of execution is the
deciding factor and not the filing of the application for execution. This decision was followed in Moosa Kutty Hajee v. Pylotu Joseph, AIR 1952
T.C. 89 where the Judge held that the point of time that has to be regarded in considering the question of excitability is not the time at which the
decree was passed but the time when it is sought to be executed because notwithstanding the existence of any obstacle to execution at the time the
decree was passed if that obstacle is removed by the time the execution of the decree is sought that obstacle cannot operate as it is only its
continued existence that can stand in the way of execution. In Dominion of India Vs. Hiralal Bothra, , the decree that was sought to be executed by
the Small Cause Court, Calcutta, had been passed by Jamalpur Court on 15-5-1947 when that Court was with in the territory of India. At the time
when the execution petition was filed, Jamalpur had become part of Pakistan. In these circumstances the Calcutta High Court held that after 15-8-
1947 Jamalpur which was part of British India before that date became a foreign Court and its decree cannot be executed unless there was
reciprocity and since Pakistan .was not a reciprocating territory at that time the application for execution cannot be maintained. A somewhat
contrary view is sought to be inferred from the judgment of the same Judges, Mookerjee and Chunder JJ. in Naresh Chandra Bose Vs. Sachindra
Nath Deb and Others, but we do not think that such an inference is possible.
The decision in Dominion of India Vs. Hiralal Bothra, was accepted as good law by Raghava Rao J. in Golden Knitting Co. Vs. Mural Traders
(India), . In Dalel Singh Vs. Sm. Dhan Devi and Others, the learned Judges followed the view taken by the Bombay High Court in Bhagwan
Shankar Vs. Rajaram Bapu Vithal, and in Chunnilal Kasturchand Vs. Dundappa Damappa, for holding that a decree passed by a former High
Court of Nabha 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 Dominion of India
Vs. Hiralal Bothra, has found favour in Surendranath v. Milan Mia, AIR 1955 Assam 12 (Z).
A contrary view sesms 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 Jearned 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 excitability. We
need hardly add that this view is opposed to the conclusion arrived at in the cases referred to above. The Travancore-Cochin High Court in
Vareed v. Gopalbai, AIR 1954 TC. 358 came to the conclusion that the introduction of common citizenship after the inauguration of the
Constitution ''on 26-1-1950 did not give jurisdiction to Travancore-Cochin Courts to execute a decree that was passed on 24-10-1949 by a -
Court in the Madras Presidency on the basis of nationality because even if nationality was an acceptable basis of jurisdiction it was necessary that
the defendant was a subject of the country in which the decree was passed at the time of the decree and not subsequent thereto. Here again the
concept is that executability depends upon the state of circumstances when the decree is passed and not at the time of its'' execution.
In our opinion the more acceptable and better view seems to be that in Dominion of India Vs. Hiralal Bothra, and Bhagwan Shankar Vs. Rajaram
Bapu Vithal, .
The question of executability of a decree passed by the Subordinate Judge of Devakottah before Section 44-A was introduced into the CPC
came up for consideration in the Rangoon High Court before Baguley and Mosely JJ. in Muthukaruppan v Sellaml Achi, AIR 1938 Rang 385 The
facts of the case show that a decree passed by the Subordinate Judge, Devakottah in 1936 was transferred for execution to the Additional District
Judge, Henzada, Burma on 17-10-1936. An application for execution of the decree was made on 19-5-1937 that is after the separation of Burma
and the date of the receipt was 29-10-1936. The application for execution was made on 19-5-1937, that is, after the separation of Burma which
took place on 1-4-1937 and under those circumstances, the learned Judges took the-view that the application for execution having been made
after the separation of Burma, the decree-of the Devakottah Court became a foreign decree and as such the Courts in Burma had no jurisdiction to
execute it. They also held that Section 10 of the Government of Burma Adaptation of Laws Order of 1937 did not apply as it referred to
substantive rights acquired and not to mere matters of procedure.
To sum up, the right of excitability in a particular manner is a procedural right and not a substantive one like the right to collect the money,
under, the decree. We do not see any reason why. Courts in our country should take a different view especially since the view taken by the
Rangoon High Court fs 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 and Another Vs. Firm Sawai Modi Basdeo
Prasad and Another, . 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.
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
those tests it is not possible to say that E. P. No. 134 of1 1950 is a continuation of E. P. No. 173 Of 1944, In addition to this, there is the fact as
noted by the-learned Subordinate Judge in para 22 of his judgment, that it was conceded before him that E. P. No. 134 of 1950 which had been
struck off for statistical purposes after continuing the attachment without any final order being passed thereon was not a contention. We are not
inclined to agree-that E. P. No. 134 of 1950 is a continuation of E. P: No. 173 of 1944 on account of the concession made-but it does not matter
even if E. P. No. 134 of 1950 is a continuation of E. P. No. 173 of 1944'' for the ''reason that at the time of execution reciprocal arrangements
had ceased to exist between Burma and India.
We have, therefore, come to the conclusion that no execution is possible of any decree of a Burmese Court after 4-1-1948 when Burma
became a Republic even if any decree of a Burmese Court had been pending in any Indian Court in1 execution,
Respondent''s counsel eventually Bought to argue that at the time the decree in C. R. No. 112 of 1932 of the Rangoon High Court was passed
it was that of an Indian Court and not a foreign Court and hence it does not cease to be that of an Indian Court even after Burma became
separate. We are unable'' to accept this contention. We ere also not inclined to accede to the arguments of the learned counselor the respondents
that the appellant consented and acquiesced in the jurisdiction of the Devakottah Sub Court to execute the decree of the Rangoon High Court.
Even if there had been any such acquiescence It has been held by the Privy Council in Legdard v. Bull, ILR 6 All 191 that that would not give any
jurisdiction if the Court does not, otherwise, have jurisdiction.
In the result, it has to be held that E. P. No, 134 of 1950 is not maintainable and therefore reversing the decision of the lower Court We
dismiss the same with costs throughout.
C. M. A. No. 352 of 1951: The learned Subordinate Judge has dismissed E. P. No. 136 of 1950 on the ground that the same is barred by
limitation. We, have not been shown any reasons that would make us dissent from the view taken by the lower Court. This civil miscellaneous
appeal is, therefore, dismissed with costs.
App. Nos. 908 and 909 of 1952:-- We have held that the Devakottah Sub Court has no jurisdiction to execute the decree because the suits out of
which these appeals arise were for setting aside the claim orders passed of execution of that decree. The lower Court has upheld the'' claim and
dismissed those suits. If, as we have held, that the decree of the Rangoon High Court itself is not executable the claim has to be sustained. Hence
these appeals are dismissed but in the circumstances with half costs.
For the reasons given in our judgment in C. M. A. No. 85 of 1951, C. M. A. No. 177 of 1952 has to be allowed but without costs.