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Judgment
Menon, J.—The question involved in this appeal relates to the execution of a decree obtained against the Appellant in the Court of the Subordinate Judge of Coimbatore. The decree was based on a promissory note and was passed on 24-10-1949. The Appellant was not resident or present in the Province of Madras at the time the action was commenced and it is agreed that there has been no submission by him to the jurisdiction of the Court which passed the decree. It is also agreed that the decree, though ''expert'', was a decree on the merits.
It is conceded that the Coimbatore Court was a "proper Court", that is, a Court which is authorised by the law of the country to which it belongs, or under whose authority it acts, to adjudicate upon the matter involved in the suit. But that is not the same thing as being a Court of competent jurisdiction for the purposes of private international law.
In actions ''in personam'' a foreign Court can be considered as a Court of competent jurisdiction only under certain specified circumstances. The three cases in which it will be so considered are summarised by Dicey (Conflict of Laws, 6th Edn., p. 351) as follows:
First Case:- Where at the time of the commencement of the action the Defendant was resident or present in such country; so as to have the benefit, and be under the protection, of the laws thereof.
Second Case: - (Semble) Where the Defendant is, at the time of the judgment in the action, a subject or citizen of such country.
Third Case:- Where the party objecting to the jurisdiction of the Courts of such country has, by his own conduct, submitted to such jurisdiction, i.e., has precluded himself from objecting thereto:
(a) by appearing as Plaintiff in the action or counter-claiming; or
(b) by voluntarily appearing as Defendant in such action; or
(c) by having expressly or impliedly contracted to submit to the jurisdiction of such Courts.
It is clear from what has been stated in paragraph (1) above, and it is conceded by the Respondent (subject to the argument dealt with in paragraph 8 below) that the decree on the date it was passed was not a decree of a competent Court and that at that time it was incapable of execution outside what was then British Indian territory.
The contention that we have to deal with in this case and which has found favour with the Court below is that even though it was not possible to execute the decree in this State at the time it was passed it has since become capable of such execution by virtue of events that have transpired subsequent to the passing of the decree. The argument in essence is that consequent on the inauguration of the Indian Constitution on the 26-1-1950 there has been a change of status in respect of the Appellant and the Courts concerned and as a result the decree can now be executed within this State.
According to the decree-holder-Respondent the Constitution of India introduced a common citizenship throughout the country and the Appellant as a citizen of India cannot now contend that the decree of a Court in the Province of Madras is a nullity on the ground that he was an absent foreigner who had not submitted to the jurisdiction of the Court that passed the decree.
Nationality as a basis of jurisdiction in these matters is a subject of controversy. Judicial dicta is in favour of recognising the jurisdiction of foreign Courts over the nationals of their country even though the Defendant was not present in that country at the time the proceedings were instituted.
III__''Schibsby v. Westenholz'' (1871) 40 LJ QB 73 (A), Blackburn, J., said:
If the Defendants had been at the time of the judgment subjects of the country whose judgment is sought to be enforced against them, we think that its laws would have bound them;
and in - ''Gavin Gibson and Co. v. Gibson'' (1913) 82 LJ KB 1315 (B), Lord Atkin after dealing with the dicta in favour of nationality forming a basis of jurisdiction in the case mentioned above, in - ''Sirdar Gurdyal Singh v. Rajah of Faridkote'' (1894) ACC 670 (C); - ''Rousillon v. Rousillon'' (1880) 49 LJ Chh. 338 (D) and - ''Emanuel v. Symon'' (1908) 77 LJ KB 180 (E), said:
It will be apparent that in none of the above cases was the Defendant in fact a subject of the country where the judgment sued on was pronounced nor was it claimed that he was, and the judicial expressions, above referred to are therefore in the nature of ''obiter dicta''. They are, however, of so great weight that I should probably feel compelled to follow them.
The text books axe also not agreed on the subject. As stated by Graveson the proposition is accepted by Westlake, Dicey, Foote and Schmitthoff, but rejected by Cheshire. He himself is content to leave the question by saying that nationality as a basis of jurisdiction remains uncertain.
Cheshire deals with the question as follows:
It remains...to ascertain whether the fact that the Defendant is a national of the foreign country where the judgment has been obtained is sufficient to render him amenable to the jurisdiction of the local Courts. There is no English authority which contains an actual decision to this effect, but the truth of the proposition has been affirmed ''obiter'' in several cases. It is also adopted by text book writers. Nevertheless it is submitted with some confidence that nationality ''per se'' is not a reason which, on any principle recognised by private international law, can justify the exercise of jurisdiction.
The argument usually advanced in its favour, namely that ''a subject is bound to obey the commands of his sovereign, and, therefore, the judgments of his sovereign Courts,'' is surely out of touch with the known facts of modern life, but, even if it is admitted, it does ''not follow that it is the duty of Anr. sovereign to see those commands obeyed.'' Allegiance is all-important in public international law, but in itself has not been a contributing element to the formation of private international law.
and points out that
to make allegiance the basis of jurisdiction is scarcely practicable in the case of the British Commonwealth.
Prof. C.H. Alexander of the Madras University apparently agrees with this view for in dealing with- Chunnilal Kasturchand Vs. Dundappa Damappa, and - Dominion of India Vs. Hiralal Bothra, in his article on "International Law in India" in the International and Comparative Law Quarterly Vol. I, p. 289 (299) he says:
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 an important element in public international law. It seems probable that there is rather a confusion of ideas than a deviation.
The decree in this case was passed on 24-10-1949, that is, prior to the Constitution, and so it is unnecessary for us to consider whether nationality by itself will afford a sufficient basis for jurisdiction. Dicey''s formulation makes it clear that even if nationality is an acceptable basis the Defendant must have been a subject of the country in which the decree was passed at the time of the decree and not subsequent thereto.
In - ''Ramalinga Iyer v. Swaminatha Ayya'' AIR 1941 Mad 688 (H) the Court had to deal with a case in which a subject of the Cochin State contended that a decree of the District Court of Trichur given in his absence and without submission was not executable against him in the Province of Madras on the ground that he had renounced his Cochin nationality subsequent to the date of the decree. The Madras High Court negatived the contention and following the principle of -''Vecht v. Taylor'' (1917) 33 T. L. R. 317 (I)'' said:
If the Respondent was a Cochin State, subject at the date of the passing of the decree any declaration renouncing his Cochin nationality after the passing of the decree would leave the position unchanged,
Mr. Ramanan, learned Counsel for the Respondent, attempted to get over the difficulty by insisting that the common allegiance should be deemed to have commenced not on 26-1-1950 with the inauguration of the Constitution but from 14-7-1949, the date of the Instrument of Accession executed by His Highness the Rajpramukh of Travancore-Cochin. We feel it unnecessary to consider this argument and the scope and effect of the Instrument of Accession in the light of the principles we have discussed and dealt with in the paragraphs that follow.
The question that remains to be considered is whether as a result of the Constitution there has been a change in the status of the Madras and Cochin Courts by which foreignness has disappeared and the decree has now become executable in this State. Article 261(3) of the Constitution provides that:
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.
There can be no doubt that this provision has no retrospective effect and that it will apply only to judgments and orders delivered or passed subsequent to the 26-1-1950. It is clear from the provision, however, that the makers of the Constitution realised that but for such a provision the judgment of one of the States of India will be regarded as a foreign judgment in every other State in the country in spite of the evolution of a common Indian federation. There was no such full faith and credit clause in the Instrument of Accession of the 14-7-1949.
In a federation for all national purposes embraced by the federal, Constitution the State is of course one, united under the same sovereign and authority and governed by the same laws. But in other respects the States are necessarily foreign to and independent of each other and a foreign judgment for purposes of private international law need not necessarily be of a State owing a different allegiance. It is enough if it is the judgment of Anr. independent or unconnected jurisdiction and as to whether it is of an independent or unconnected jurisdiction will have to be decided according to the law in force in the State where execution is sought.
Scotland and Ireland, for example, having been treated as foreign countries from the point of view of private international law and before the judgments Extension Act, 1868, as pointed out by Cheshire (Private International Law, 4th Edn., p. 590):
a Plaintiff who had obtained judgment in either of these countries and who desired to enforce it against the Defendant in England was in no better position than if he had obtained his judgment in some country which did not form part of the United Kingdom.
The CPC in force in Cochin until 1-4-1951 was Act 29 of 1111. Section 2(5) of that Act defined the expression "foreign Court" as meaning "a Court having no authority in Cochin" and Section 2(6) defined the expression "foreign judgment" as meaning "the judgment of a foreign Court." The definition of the terms in the Travancore Code of Civil Procedure, Act VIII of 1100, was also to the same effect. Section 2(5) of that Code defined �foreign Court� as meaning �a Court having no authority in Travancore� and Section 2(6) defined �foreign judgment� as meaning �the judgment of a foreign Court.� As a result of the CPC (Amendment Act, 1951) (Central Act 2 of 1951) the Code of Civil Procedure, 1908, came into force in the State with effect from the 1-4-1351 and from that date the definition of the expression "foreign Court" was changed to:
a Court situate outside India and not established or continued by the authority of the Central Government.
There can be no doubt that the Coimbatore Court has from 1-4-1961 ceased to be a foreign Court under the CPC in force in this State and the only question is, what, if any, is the effect of the change introduced by Act 2 of 1951.
Section 20 of the Act provides:
(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 stand repealed.
Provided that, the repeal shall not affect-
(a) the previous operation of any law so repealed or anything duly done or suffered there under, or
(b) any right privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or
(c) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed.
(2) Subject to the provisions contained in Sub-section (1), notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under any enactment hereby repealed shall, so far as they are consistent with the said Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under the said Code and by the authority empowered thereby in such behalf.
(3) In every law or notification passed or issued before the commencement of this Act in which reference is made to or to any Chapter or section of any law hereby repealed, such reference shall, so far as may be practicable, be taken to be made to the said Code or its corresponding Part, Order, section or rule.
and the question really resolves into the further question as to whether a claim to resist execution on the ground that the decree sought to be executed is a nullity under the rules of private, international law "is a right or privilege acquired or accrued" under the Cochin CPC by virtue of the definitions of the expression "foreign Court" and "foreign judgment" embodied therein and 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".
As stated by Salmond (Jurisprudence, 10th Edn., p. 245) there are four classes of rights conferred by the law:
Right in the strict sense, when the law limits, the liberty of Ors. in my behalf, liberty, when, the law allows to my will a sphere of unrestrained activity; power, when the law actively assists me in making my will effective; immunity, when the law denies to Ors. a particular power over me.
A right in the narrow sense is that which, other persons ''ought'' to do on my behalf; a. liberty is that which I may do innocently; a. power is that which I can do effectively; an immunity is that which other persons ''cannot'' do effectively in respect of me. I enjoy my rights through the control exercised by the law over the acts of Ors. on my behalf; I use my liberties with the acquiescence of the law; I use my powers with its active assistance in making itself the instrument of my will; I use my immunities through its refusal to accord this active assistance to Ors. .
Immunity according to him is "exemption from the power of Anr. " and 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.
Bhagwan Shankar Vs. Rajaram Bapu Vithal, ; - Chunnilal Kasturchand Vs. Dundappa Damappa, ; - ''Dwarkadas Jethabhai v. Gokaldas Naranji'' AIR 1952 Guj 90 (FB) (L); - ''Moosakutty Hajee v. Pylotu Joseph'' AIR 1952 KER 89 (M); - Radheyshiam and Another Vs. Firm Sawai Modi Basdeo Prasad and Another, ; - ''Ramdayal v. Shankarlal'' AIR 1952 AP 80 (FB) (O); - ''D.C. Machine Co. v. Syed Jahangir'' AIR 1953 AP 19 (P); - Dominion of India Vs. Hiralal Bothra, '', - ''Golden Knitting Co. v. Mural Traders (India) in Sind Market, Karachi'' AIR 1950 Mad 293 (Q); and - ''Said-ul-Hamid v. Federal Indian Assurance Co., Ltd., New Delhi'' AIR 1951 P&H 255 (R), were cited before us in support of the contention that the decree is executable and - H.M. Subbaraya Setty and Sons Vs. S.K. Palani Chetty and Sons, ; - ''Firm Lanaji Narayan v. Purshottam Charan'' AIR 1953 MP 225 (T); - Shah Premchand Vs. Shah Danmal, and - The Owners and Partners of the firm named Shah Kantilal Vs. Dominion of India owing East Indian Railway, in support of the converse position. The divergence of opinion is essentially based on the nature and scope of the political changes that have taken place in this country and their effect on citizenship and the Courts of the various States. To the extent these decisions depart from what we have stated above we must respectfully decline to follow them.
In the light of what is stated above the appeal has to be allowed and we do so with costs here and in the Court below.