Full Judgment Text
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PETITIONER:
LALJI RAJA & SONS.
Vs.
RESPONDENT:
FIRM HANSRAJ NATHURAM
DATE OF JUDGMENT23/02/1971
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
BHARGAVA, VISHISHTHA
SIKRI, S.M. (CJ)
MITTER, G.K.
REDDY, P. JAGANMOHAN
CITATION:
1971 AIR 974 1971 SCR (3) 815
1971 SCC (1) 721
CITATOR INFO :
F 1977 SC 164 (9)
R 1980 SC 101 (3)
RF 1989 SC1614 (14)
R 1991 SC2156 (10)
ACT:
Code of Civil Procedure, 1908, ss. 2(5), 2(12), 20, 38, 39,
40 48-Code of Civil Procedure (Amendment) Act, 1950 (Act 2
of 1951), s. 20(1) (b)-Decree passed under Code can be
transferred to any court governed by Code-Court in Madhya
Bharat not governed by Code prior to passing of Act 2 of
1951-Transfer of decree from West Bengal Court to Madhya
Bharat Court while invalid before passing of Act 2 of 1951
could be validly made thereafter-Foreign Court, ’Foreign
Decree’, meaning of-Foreign Decree when a nullity-
Privileges’ and ’rights’ when protected under s. 20(1) (b)
of Act 2 of 1951-Limitation for Execution Section 48 whether
provides a bar or period of limitation.
HEADNOTE:
The appellants obtained a decree against the respondent in
the court of Sub-Judge, Bankura (West Bengal) on December 3,
1949. On March 28, 1950 they applied to the court which
passed the decree to transfer the decree with a certificate
of non-satisfaction of the court at Morgan in the then State
of Madhya Bharat. It was ordered accordingly. The Judgment
debtors resisted the execute on the ground that the court
had no jurisdiction to execute the same as the decree was
that of a foreign court and that the same had been passed
ex-parte. The court accepted that contention and dismissed
the execution petition on December 29, 1950. On April ,
1951 the Code of Civil Procedure (Amendment) Act 2 of 1951
came into force. By this Act the Code was extended to the
former State of Madhya Bharat as well as various other
places. Meanwhile the appellants appealed against the order
of the Additional District Judge Morena dismissing the
execution petition to the High Court of Madhya pradesh. The
appeal was allowed. In further appeal this Court ’restored
the order of the Addl. District Judge, Morena. Thereafter
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on February 15, 1963 the appellants filed another execution
case before the Bankura Court praying for the transfer of
the decree to the Molrena Court for execution. The Bankura
Court again ordered the transfer of the decree of the Morena
Court. The judgment debtors resisted execute on the
flowing grounds : (1) that it was barred by yes judicature
in view of the aforesaid decision of this Court; (2) that it
was barred by s. 48 of the Code of Civil Procedure; (3) that
it was barred by limitation and (4) that it was not
executable because it was the decree of a foreign court.
The Addl. District Judge rejected the objections. The High
Court in appeal agreed with the executing court that the
execution petition was neiber barred by resjudicata nor was
there any bar of limitation but it disagreed with that court
and held that the decree was not executable as the court
which passed the decree was a foreign court. The decree
holders filed the present appeal by special leave. The
questions which fell for consideration were : (i) whether
the decree under execution was not executable by courts
situate in the area comprised in the former State of Madhya
Bharat;
(ii) whether the decree was barred by s. 48 of the Code.
HELD:Per Sikri C.J., Mitter, Hyde and Bhargava JJ. (1) (a)
On the date when the decree under execution was passed
foreign court’ was
8-1 100 SupCII71
816
defined in s. 2(5) of the Code as a court situate beyond the
limits of British India which had no authority in British
India and was not established or continued by the Central
Government. After the amendment of the Code of Civil
Procedure in 1951. ’foreign court’ under the Code means a
court situate outside India and not established or continued
by the authority of the Central Government. Whether we take
the earlier definition or the present definition the Bankura
Court could not be considered as a foreign court within the
meaning of that expression in the Code. ’Foreign judgment’
is defined as the ’judgment of a foreign court’. Hence the
decree under execution could not be considered as a foreign
decree for the purpose of the Code. [820 D-G]
Accordingly the judgment-debtors could not take advantage of
the provision in s. 13(b) of the Code under which the ex-
parte decree of a foreign court is not conclusive. Nor
could they take advantage of s. 13(d). They were served
with notice of suit but did not choose to appear before the
court. Hence, there was Po basis for the contention that
any principle of natural justice has been contravened.
Further s. 13(d) was not applicable because the judgment in
question was not a foreign judgment. [821 D]
(b) Under Private International Law a decree passed by a
foreign court to whose juri diction a judgment-debtor had
not submitted is an absolute nullity only if the local
legislature had not conferred jurisdiction on the domestic
courts over the foreigners either generally or in specified
circumstances. Clause (c) of s. 20 of the Code provides
that subject to the limitations mentioned in the earlier
sections of the Code a suit can be instituted in a court
within the local limits of whose jurisdiction the cause of
action wholly or in part, arises. This provision confers
jurisdiction on a court in India over foreigners when the
cause of action arises within its jurisdiction. There was
not dispute in the present case that the cause of action for
the suit which led up to the decree under execution arose
within the jurisdict on of the Bankura Court. Hence, it
must be held that the suit in question was properly
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instituted. Accordingly the decree in question was a valid
decree though it might not have been executable at one stage
in courts in the former Indian States [822 B-F]
Sardar Gurdyal Singh v. The Rajah of Faridkot, 21 I.A. 171,
referred to.
(c) A combined reading of ss. 2(12), 38, 39 and 40 of the
Code shows that a decree can be transferred for execution
only to a court to which the Code apple . This is what was
ruled by this Court in Hansraj Nathu Ram’s case. But by the
date the transfer in the present case was made, the Code had
been extended to the whole of India. It followed that the
transfer of the decree in question which was not a foreign
decree, to the Morena Court, was in accordance with the
provisions of the Code. [823 B-D]
Hansraj Nathu Ram v. Lalii Raja & Sons of Bankura, [1963] 2
S.C.R. 619, applied.
Narsingh Rao Shitole v. Shri Shankar Saran & Ors., [1963] 2
S.C.R. 577, distinguished.
(d) Section 20(1)(b) of the Code of Civil Procedure
Amendment Act, 1951 by which the Code was extended to Madhya
Bharat and other areas undoubtedly protects the right
acquired and privileges accrued under the law repealed by
the amending Act. But even by straining the language of the
provision it cannot be said that the non-executabilitv of
the decree within a particular territory can be considered a
privilege [824 E-F]
817
Nor is it a ’right accrued’ within the meaning of s. 20(1)
(b) of the Code of Civil Procedure (Amendment) Act, 1950.
In the first peace in order to get the benefit of this
provision the non-executability of the decree must be a
right, and secondly it must be a right that had accrued from
the provisions of the repealed law. It Was difficult to
consider the non-executability of the decree in Madhya
Bharat as a vested right of the judgment debtors. The non-
executability in question pertained to the jurisdiction of
certain courts and not to the "rights of the judgment
debtors. Further the relevant provision of the Code of
Civil Proedue in force in Madhya Bharat did not confer the,
right claimed by the judgment debtors. All that had
happened in view of the extension of +he Code to the whole
of India in 1951 was that the decrees which could have been
executed only by courts in British India were made’
executable in the whole of India. The change made was one
relating to procedure and jury diction. By the extension of
the Code to Madhya Bharat, want of jurisdiction on the part
of the Morena Court was remedied and that court was now
competent to execute the decree [825 A-E]
Hamilton Gell v. White [1922] 2 K.B 422, Abbot v. Minister
for Lands, [1895] A.C. 425 and G. Ogden Industries Pvt.
Ltd. v. Lucas, [1969] 1 All E.R. 121, applied.
(ii)The execution was also not barred, by s. 48 of the
Cod-.. For considering the true impact of cl. (b) of sub-s.
2 of s. 48 of the Code provisions of Arts. 181 and 182 of
the Limitation Act, 1908 have also to be taken into
consideration. These provisions clearly go to indicate that
the period prescribed under s. 48(1) of the Code is a period
of limitation. This interpretation is strengthened by the
subsequent history of the legislation. By the Limitation
Act, 1963 s. 48 of the Code is deleted. It-, place has not
been taken by Art. 136 of the Limtation Act of 1963 The High
Courts also are now unanimous that s. 48 of tile (ode is
controlled by the provisions of the Limitation Act, 1908.
[828 A-C]
Kandaswami Pillai v. Kamappa Chetty, A-I-R, 1952 Mad. 186
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(F.B.), Durg v. Poncham, I.L.R. [1939] All. 647, Sitaram v.
Chunnilalsa, I.L.R. [1944] Nag. 250, Amarendra v. Manindra,
A.I.R.’1955 Cal. 269, Krishna Chandra v Parovatamma, A.I.R.
1953 Orissa 13 and Ramgopal v. Sidram, A.I.R. 1943 Bom. 164
referred to.
Per Jaganmohan Reddy, J.-(Concurring) No question of ’a
vested right or privilege arose to entitle the respondent
to challenge execution proceedings in Morena Court. The
decree granted by the Bankura Court was executable by the
Courts governed by the same Code, by talk Court which passed
it or by the Court to which it was transferred. One the
Code was made applicable to the whole of India by Amendment
Act 11 of 1951 the decree was no longer a foreign decree qua
the Morena Court which was a court under the Code to which
the Bankura Court could transfer the decree for execution.
No doubt in’ Shitole’s case it was observed that s. 13 of
the Code creates substantive rights and not merely
procedural and therefore defenses that were open to the
resno-dents were not taken away by any constitutional
changes, but the ratio of the decision was that the Gwalior
Court not being a court that passed the decree after the
coming into force of Act 11 of 1951 the Allahabad Court
could not execute it. The impediment did not exist now in
that the Bankura Court bad transferred the decree to a court
under the Code. the plea that s. 48 Civil Procedure Code
presents a bar of limitation was also not tenable. [831 F-H]
818
Kishendas v. Indo-Carnatic Bank Ltd. A.I.R. 1958 A.P. 407
Sardar Gurdayal Singh V. Raja of Firidkote, 21 I.A. 171, Rai
Rajendra Sardar Maloji Narsingh Rao Shirole v. Shri Shankar
Saran, [1963] 2 S.C.R. 577 and Hansaj Nathuram Y. Lalji Raja
JUDGMENT:
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2427
of1966.
Appeal by special leave from the judgment and order dated
August 27, 1964 of the Madhya Pradesh High Court in Misc.
Appeal No. 20 of 1964.
S. C. Majumdar and R. K. fain, for the appellant.
W. S. Barlingay, Ramesh Mali and Ganpat Rai, for the
respondent.
The Judgment of S, M. SIKRI, C.J., G. K. MITTER, K. S. HEGDE
and V. BHARGAVA, JJ. was delivered by HEGDE, J. P. JAGAMOHAN
REDDY, J. gave a separate Opinion:
Hegde, J. This is an execution appeal. The decree-holders
are the appellants herein. This case has a long and
chequered history. The decree-holders obtained a decree
against the respondents in the court of Sub-Judge, Bankura
(West Bengal) for a sum of over Rs. 12,000/-, on December 3,
1949. On March 28, 1950 they applied to the court which
passed the decree to transfer the decree together with a
certificate of non-satisfaction to the court at Morena in
the then Madhya Bharat State for execution. It was ordered
accordingly.. The execution proceedings commenced in the
court of Additional District Judge at Morena on September
21, 1950 (Money Execution Case No. 8 of 1950). The
judgment-debtors resisted the execution on the ground that
the court had no jurisdiction to execute the same as the
decree was that of a foreign court and that the same had
been passed exparte. The court accepted that contention and
dismissed the execution petition on December 29, 1950. On
April 1, 1951 the Code of Civil Procedure (Amendment) Act,
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(Act 11 of 1951) came into force. As a result of that the
Code of Civil Procedure (in short the ’Code’) was extended
to the former State of Madhya Bharat as well as to various
other places. Meanwhile the decree-holders appealed against
the order of the learned Additional District Judge, Morena
dismissing the execution petition, to the High Court of
Madhya Pradesh. The Madhya Pradesh High Court allowed their
appeal. As against that the judgment debtors appealed to
this Court. This Court allowed the appeal of the judgment-
debtors and restored the order of the learned Additional
District Judge,, ’Morena. The decision of this Court is
reported in Hansraj Nathu Ram v. Lalji Raj and sons of
Bankura(1). Therein this Court ruled that the transfer
ordered by
(1) [1963] 2 S.C.R. 619.
819
the Bankura court was without jurisdiction as on that date
’the Code’ did not apply to the Morena court.. This Court
held that Morena court not being a court to which the,
Code’ apple, the decree could not have been transport to it
It further bed that ss. 38 and 39 of ’the Code’ did not
afford jurisdiction for such a transfer. It may be noted
that at the time the Bankura Court ordered the transfer of
the decree, the Morena court was governed by the Indian Code
of Civil Procedure as adapted by the Madhya Bharat
Adaptation Order, 1948. In other words it was governed ’by
a law passed by the then Madhya Bharat State. In the course
of its judgment this Court observed that under ’the Code’ "
a decree can be executed by a court which passed the decree
or to which it was transport for executing and the decree
which could be transferred has to be a decree ’passed under
the Code and the court to which it could be transferred has
to be a court which was governed by the Indian Code of Civil
Procedure". The first stage of the execution proceedings
came to an end by the decision of this Court rendered on
April 30, 1962.
On February 15, 1963, the decree holders filed another exe-
cution case before the Bankura court. Therein they prayed
for the transfer of the decree again to the Morena court for
execution. As noticed earlier, by that time ’the Code’ had
been extended to the Madhya Bharat State which had become a
part of the State of Madhya Pradesh. The Bankura court
again ordered the mans fer of the decree to the Morena
court. The execution proceedings were started afresh in the
Morena court on August 31, 1963 (Execution Case No. 1 of
1963). The judgment-debt- resisted the execution on various
grounds viz. (a) that it is barred by res-judicata in view
of the decision of this Court referred to earlier-, (b) that
it is barred by s. 48. of ’the. Code’; (c) that it is
barred by limitation; and (d) that the decree is not
executable as it is a decree of a foreign court.
The learned Additional District Judge rejected the
objections raised by the judgment-debtors. The judgment-
debtors appealed against that order to the High Court of
Madhva Pradesh. The High Court agreed with the executing
court that the execution petition is neither barred by res-
judicata nor by s. 48 of "the Code’, nor is there any bar of
limitation.but it disagreed with that court and held that
the decree was not evecutable as the court which passed the
decree was a foreign court. In arriving at that conclusion
it purported to rely on the decision of this Court in Rai
Rajendra Sardar Maloji Narsingh Rao Shitole v. v. Sri
Shankar- Saran and Ors..(1). Aggrieved by that decision the
decree-holders have brought this appeal by special leave.
From the contentions advanced before us, two questions arise
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1. [1963]2 S.C.R. 577.
820
for decision. They are (1) whether the decree under
execution is not executable by courts situate in the area
comprised in the former State of Madhya Bharat and (2)
whether the decree is barred by S. 48 of ’the Code’.
The contention of the Judgment-debtors is that the decree
under execution being a decree of a foreign court is a
nullity qua the courts in the former State, of Madhya Bharat
and therefore the same is not executable in the Morena
court. According to the decree-holders the decree in
question is not a decree of a foreign court as contemplated
by ’the Code’ and the court -to which the decree
is transferred for execution namely the Morena court is a
’court’ ascontemplated by ss. 38 and 39 of ’the Code’
and therefore therecan be no valid objection to its
execution in the Morena court. Before referring to the
decided cases on the point it is necessary to read the
relevant provisions of ’the Code’ as the execution is sought
in accordance with the provisions therein.
’Foreign Court is defined in s. 2(5) of ’the Code’. That
definition as it stood on the date the decree under
execution was passed read thus
"foreign -court" -means a Court situate beyond the limits of
British;: India which has no authority in British India and,
is: -not established or continued by the Central
Government.",
A new definition of foreign court" was substituted by the
Code of Civil Prcedure (Amendment) Act 11 of 1951. That
definition reads
"foreign court" means a court situate outside India and not
established or continued by the authority of the Central
Government".
Whether we take the earlier definition or the present
definition into consideration the Bankura court, cannot be
considered as a "foreign court" within ’the meaning of that
expression in ’the Code’. Foreign judgment is defined in
’the Code’ as the judgment of ’a foreign court’. (S. 2(6) of
’the Code’). Hence the decree under execution cannot be
considered as a foreign decree for the purpose of the Code.
Section 13 of ’the Code’ provides that "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
(b) where it hasnot, been given on the merits of the
case."
821
The judgment with which we are concerned in this case was an
ex-parse judgment. The Bankura court had no jurisdiction
over the judgment-debtors. The Judgment-debtors did not
submit themselves to the jurisdiction of that court though
they were served with a notice of the suit. Hence if the
Bankura court can be considered as a foreign court then s,
13(b) would have come to the rescue of the Judgment-debtors
and it would have enabled them to pread that the judgment in
question was not conclusive and consequenty the decree is
not binding against them. But as the judgment in question
cannot be considered as a judgment of a foreign court, they
can take no assistance from s. 13(b). But assistance was
sought to be taken from s. 13(d) which says that the foreign
judgments are not conclusive "where the proceedings in which
the judgment was obtained are opposed to natural justice".
It was urged on behalf of the judgmentdebtors that as the
decree under execution was an ex-parte decree, we must hold
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that the proceedings in which the judgment was obtained were
opposed to natural justice. We are unable to accede to this
contention. As mentioned earlier, the judgment-debtors were
served with the notice of the suit. They did not choose to
appear before the court, Hence there is no basis for the
contention that any principle of natural justice had been
contravened. Further as held earlier the judgment in
question is not a foreign judgment.
Reliance was placed on Private International Law in support
of the contention that in a personal action, a decree pro-
nounced in absentee by a foreign court, to the jurisdiction
of which the defendant had not in any way submitted himself
is an absolute nudity. It was urged that the Bankura court
had no jurisdiction over the judgment-debtors and therefore
the decree passed being one pronounced in absentem is a
nullity. In support of this contention reliance was placed
on the decision of the Judicial Committee in Sirdar Gurdval
Singh v. The Rajah of Faridkote(1). Therein the Judicial
Committee observed
"In a personal action, to which none of these
causes of jurisdiction apply, a decree
pronounced in absentem 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."
But the Board qualified those observations by
the following words :
"He is under no obligation of any kind to obey
it; and it must be regarded as a mere nullity
by the Courts
(1). 21 I.A. 171.
822
of every nation except (when authorised by
special local legislation) in the country of
the forum by which it was pronounced."
The above remarks of the Board indicate that even a decree
which is pronounced in absentem by a foreign court is valid
and executable in the country of the forum by which it was
pronounced when authorised by special local legislation. A
decree passed by’ a foreign court to whose jurisdiction a
judgment-debtor had not submitted is an absolute nullity
only if the local legislature had not conferred upon
jurisdiction on the domestic courts over the foreigners
either generally or under specified circumstances. Section
20(c) of ’the Code’ confers jurisdiction on a court in India
over the foreigners if the cause of action arises within the
jurisdiction of that court. Hence the observation of the
Board quoted in some of the decisions of the courts in India
including the decision of this Court in Shitole’s case(1)
that such a decree is an absolute nullity’ may not be
apposite. It may be more appropriate to say that the decree
in question is not executable in courts outside this
country. The board itself had noticed that this rule of
Private International law is subject to special local
legislation. Clause (c) of s. 20 of ’the Code’ provided at
the relevant time and still provides that subject to the
limitations mentioned in the earlier sections of ’the Code’,
a suit can be instituted in a court within the local limits
of whose jurisdiction the cause of action. wholly or in
part, arises. There is no dispute in this case that the
cause of action for the suit which led up to the decree
under execution arose within the jurisdiction of Bankura
court. Hence it must be held that the suit in question was
a properly instituted suit. From that it follows that the
decree in question is a valid decree though it might not
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have been executable at one stage in courts in the former
Indian States.
This takes us to ss. 38 and 39 of ’the Code’. Section 38
provides that a decree may be executed either by the court
which passed it, or by the court to which it is sent for
execution. Section 39(1) to the extent it is material for
our present purpose prescribes
"The Court which passed a decree may, on the
application of the decree-holder, send it for
execution to another Court-
(a) if the person against whom the decree is
passed actually and voluntarily resides or
carries on business, or personally works for
gain within the local limits of the
jurisdiction of such other Court........
(1) [1963] 2 S.C.R. 577.
823
Section 40 prescribes
"Where a decree is sent for execution in another State, it
shall be sent to such Court and executed in such manner as
may be prescribed by rules in force in that State."
Rules are defined in s. 2(12) as meaning Rules and Forms
contained in the 1st Schedule or made under s. 122 or s. 125
of ’the Code’. On a combined reading of ss. 2(12), 33, 39
and 40, it follows that a decree can be transferred for
execution only to a court to which ’the Code’ applies. This
is what was ruled by this Court in Hansraj Nathu Ram v.
Lalji Raja and sonw cf Bankura(1). But by the date the
impugned transfer was made, ’the Code’ had been extended to
the whole of India. In fact the court to which the decree
was transferred is now an entirely new court in the eye of
the Iaw-see the decision of this Court in Shitole’s case(2).
From the foregoing discussion., it follows that the decree
under execution is not a foreign decree and its transfer to
the Morena court is in accordance with the provisions of the
Code’. That being so, the decree under execution satisfies
the dictum of this Court in Hansraj Nathu Ram v. Lalji Raja
and sons(1) that "a decree can be executed by a court which
passed the decree or to which it was transferred for
execution and the decree which could be transferred has to
be a decree Passed under the Code and the Court to which it
could be transferred has to be a Court which was governed by
the Indian Code of Civil Procedure."
It was next urged on behalf of the judgment-debtor that in
view of the decision of this Court in Shitole’s cave (supra)
we must hold that the decree is a nullity and that it cannot
be executed at all in the courts situate in the former State
of Madhya Bharat. In Shitole’s case (sunra) this Court was
called upon to consider a converse case. Therein the decree
under execution was one passed by a court in Gwalior State
in a suit instituted in May 1947. The defendants were the
residents of U.P. They did not appeal before the Gwalior
court though served with the notice. An ex-parte decree was
passed against them in November, 1948. On September, 1951,
the Gwalior court transferred the decree for execution to
Allahabad and on October 16. 1951, the decree-holder filed
an application for execution of the decree before the
Allahabad Court. The judgmentdebtors contended that the
decree being a decree of foreign court to whose jurisdiction
they had not submitted, was a mullity and the execution
application in respect thereof was not majntanable. That
contention was accented by this Court. It may be noted that
the Gwalior Court was not a court constituted under the
(1) [1963]2 S.C.R. 619.
(2) [1963]2 S.C.R. 577.
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824
provisions of ’the Code’. It was admittedly a foreign court
for the purpose of any proceedings under the Code’. The
ratio of that decision is wholly inapplicable to the present
case. The question whether a decree is a foreign decree or
whether it can be transferred to another court for execution
has to be judged by the provisions of ’the, Code’.
It was’ next contended that in view of S. 20 cl. (b) of ’the
Code’ of Civil Procedure (Amendment) Act, 1951 by which the
Code is extneded to Madhya Bharat and other areas, the judg-
ment-debtors’ right to resist the execution of the decree is
protected. Section 20(1) of the Act deals with Repeals and
Savings. That section to the extent relevant for our
present purpose reads :
"If, immediately before the date on which the
said Code comes into force in any part B State
corresponding to the said Code, that law shall
on that date stand repealed.
Provided that the repeal shall not affiec
(b) any right, privilege, obligation or
liability acquired, accrued or incurred under
any law so repealed...................
;................ as if this Act had not been
passed.
This provisions undoubtedly protects the rights acquired and
privileges accrued under the law repealed by the amending
Act. Therefore the question for decision is whether the
non-executability of the decree in the Morena court under
the law in force in Madhya Bharat before the extension of
’the Code’ can be said to be a right accrued under the
repealed law. We do not think that even by straining the
language of the provision it can be said that the non-
executabity of a decree within a particular territory can be
considered as a privilege. Therefore the only question that
we have to consider is whether it can be considered as a
’right accrued’ within the meaning of s. 20(1) (b) of the
Code of Civil Procedure (Amendment) Act, 1950. In the first
place, in order to get the ’benefit of that provision, the
noli-executability of the decree must be a right and
secondly it must be a right that had accrued from the
provisions of the repealed law. It is contended on behalf
of the judjment-debtors that when the decree was passed,
they had a right to resist the execution of the decree in
Madhya Bharat in view of the provisions of the Indian Code
of Civil Procedure (as adapted) which was in force in the
Madhya Bharat at that time and the same is a vested right.
It was further urged on their behalf that right was
preserved by S. 20 (1 ) (b) of the Code of Civil
Procedure Amendment Act,
825
1950. It is difficult to’ consider the non-executability of
the decree in Madhya Bharat as a vested right of the
judgmentdebtors. The non-executability in question pertains
to the jurisdiction of certain courts and not to the rights
of the judgmentdebtors. Further the relevant provisions of
the Civil Procedure Code in force in Madhya Bharat did not
confer the right claimed by the judgment-debtors. All that
has happened in view of the extension of ’the Code’ to the
whole of lndia in 1951 is that the decree which could have
been executed only by courts in British India are pow made
executable in the whole of India. The change made is one
relating to procedure and Jurisdiction. Even before ’the
Code’ was extended to Madhay Bharat the dccree in question
could have been executed either against, the person of the
judgment-debtors if they hid happened to come to British
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India or against any of their properties situate in British
India. The execution of the decree within the State of
Madhya Bharat was not Permissible because the arm of ’the
Code’ did not reach Madhya Bharat. It was the invalidity of
the order transferring the decree to the Morena court that
stood in the way of the decree-holders in executing their
decree in that court on the earlier occasion and not because
of any vested rights of the judgment-debtors. Even if the
judgment-debtors had not objected to the execution of the
decree, the same could not have been executed by the court
at Morena on the previous occasion as that court was not
promly seized of the execution , proceedings. By the
extension of ’the Code’ to Madhya Bharat, want of
jurisdiction on the part of the Morena court was remedied
and that court is now made competent to execute the decree.’
That a provision to preserve the right accrued under a
repealed Act "was not intended to preserve the abstract
rights conferred by the repealed Act .... It only applies to
specific rights given to an individual upon happening of one
or the other of the events specified in statute case Lord
Atkins’ observations in Hamilton Gell v. White(1). The mere
right. existing at the date of repealing statute; to take
advantage of provisions of the statute repealed is not a
"right accrued" within the meaning of the usual saving
clause-see Abbot v. Minister for lands (2 ) and G. Ogden
Industries Pty. Ltd. v. Lucas(3).
From what has been said above, it follows that the view
taken by the High Court that the decree in question is a
nullity qua the Morena court cannot be accented as correct.
The decree in question is neither a ’foreign decree’ as
contemplated by ’the Code’ nor its transfer to the Morena
court impermissible under ’the Code’. By the provisions of
’the Code’ the Morena court is re-
(1) [1922] 2 K.B. 422. (2) [1895] A.C. 425.
(3) [1969] 1 All E. Report 121.
826
quired to proceed with the execution unless there is any
valid objection.
We now come to the question whether the execution is barred
by S. 48 of ’the Code. (That section was repeated in 1963).
Both the executing court as well as the High Court have
taken the view that on the facts of this case, the
limitation prescribed in s. 48 of ’the Co&’ is extended
under S. 14(2) of the Limitation Act, 1908. Both those
courts have concurrently come to the conclusion that the
previous execution proceedings had been prosecuted by the
decree-holders with due diligence and with good faith and
the same, became infructuous in view of the fact that the
Morena court had no jurisdiction to proceed with the execu-
tion. The finding that the previous execution proceedings
were carried on with due diligence and good faith and that
the same became infructuous for want of jurisdiction on the
part of the Morena court was not challenged before us. But
it was urged on behalf of the judgment-debtors that S. 48
prescribed a bar and not a period of limitation and
consequently the decree-holders cannot take the benefit of
S. 14(2) of the Limitation Act. It is necessary to examine
the correctness of this contention.
Section 48 read thus
"(1) Where an application to execute a decree
not being a decree grantincg an injunction has
been made, no order for the execution of the
same decree shall be made upon any fresh
application presented after the expiration of
12 years from-
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(a) the date of the decree sought to be
executed or
(b) where the decree or any subsequent order
directs any payment of money or the delivery
of any property to be made at a certain date
or at recurring periods, the date of the
default in making the payment or delivery in
respect of which the applicant seeks to
execute the decree.
(2) Nothing in this section shall be deemed-
(a) to preclude the Court from ordering the
execution of a decree upon an application
presented after the expiration of the said
term of twelve years, where the judgment-
debtor has, by fraud or force, prevented the
execution of the decree at some time within
twelve years immediately before the date of
the application; or
(b) to limit or otherwise affect the
operation of article 183 of the First Schedule
to the Indian Limitation Act, 1908".
827
Art. 18 3 of the Indian Limitation Act, 1908 read thus
------------------------------------------------------------
"Description of application. Period of Time from which
period
Limitationbegins to run.
-------------------------------------------------------------
To enforce a judgment, decree Tweleve years When a present
right to enor order of any Court established force the
judgment, decree or by Royal Charter in the exercise order
accrues to some person of its ordinary origiial
civilcapable of releasing,the right. jurisdiction or an
order of the
Provided ’that when the Supreme Court.judgment, decree or
order has been revived, or some part of the principle money
secured thereby or some interest on such money has been
paid, or some acknowledgment of the right thereto has been
given in writing signed by the person liable to pay such
principal or interest or his agent, to the person entitled
thereto or his agent, the twelve years shall be computed
from the date of such revivor, payment or acknowledgment or
the latest of such revivors payments or acknowledgments, as
the case may be.
At this stage it is also necessary to read Art. 181 of the
Limitation Act of 1908. That Art prescribed that an
application for which no period of limitation is provided
elsewhere in the Sch. to the Limitation Act, 1908 or by s.
48 of the Code, the period of Limitation is three years and
that period begins to run when the right to apply accrues.
Art. 182 of that Act provided that for the execution of a
decree or order of any Civil Court not provided for by
article 183 or by s. 48 of ’the Code’, the period of limi-
tation is three years or where a certified copy of the
decree or order has been registered-six years. The time
from which the period was to run is set out in the 3rd
column of the Sch.
The argument advanced on behalf of the judgment-debtors is
that s. 48 is a self-containecr Code and the period
prescribed therein is a bar and not a period of limitation
and hence the decree-holders cannot take the benefit of s.
14(2). In support of this argument reliance is placed on
sub-s. 2 (a) of s. 48 of ’the Code’. That sub-section
undoubtedly lends some support to the contention of the
judgment-debtors. It indicates as to when the period
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prescribed under s. 48(1) can be extended. By implication
it can be urged that the period prescribed under s. 48(1) of
the Code can only be extended under the circumstances
mentioned in that clause and not otherwise. But in
assessing the correct-
828
ness of that contention we have to take into consideration
cl. (b) of sub-s. (2) of s. 48 of the Code’ as well as Arts.
181 and 182 of the Limitation Act, 1908. These provisions
clearly go to indicate that the period prescribed under S.
48(1) of ’the Code’ is a period of limitation. This
conclusion of ours is strengthened by the subsequent history
of the legislation. By the Limitation Act 1963, s. 48 of
’the Code’ is deleted. Its place has now been taken by Art.
136 of the Limitation Act of 1963.
At one stage, there was considerable conflict of judicial
opinion as to whether S. 48 is controlled by the provisions
of the Limitation Act 1908. But the High Courts which had
earlier taken the view that s. 48 prescribes a bar and not
limitation have now revised their opinion. The opinion
amongst the High Courts is now unanimous that s. 48 of ’the
Code’ is controlled by the provisions of the Limitation Act,
1908-see Kandaswami Pillai v. Kamappa Chetty(1); Durg v.
Panchanti(2) Sitaram v. Chunnilalsa(3); Amarendra v.
Manindra ( 4) Krishna Chandra v. Paravatamma(5); and
Ramgopal v. Sidratm(6).
We are of the opinion that the ratio of the above decisions
correctly lays down the law. That apart, it would not be
appropriate to unsettle the settled position in law.
For the reasons mentioned above this appeal is allowed and
the order of the High Court is set aside and that of the
trial court restored. The executing court is directed to
proceed with the execution. The respondents shall pay the
costs of the appellants both in this Court as well as in the
High Court.
P.Jaganmohan Reddy, J. I agree with my learned brother
Hedge J., that the Appeal should be allowed. In the case of
Kishendas v. Indo Carnatic Bank Ltd.(7) I bad while
delivering the Judgment of the Bench expressed certain views
which may appear to conflict with the view now taken. In
that case the executability of a decree passed by the Madras
High Court in 1940 by the City Civil Court Hyderabad on the
ground of its be a foreign decree was called in question.
The Respondent went into liquidation and a liquidator was
appointed by the original side of Madras High Court. The
liquidator filed an application under Sec. 191 of the Indian
Companies Act for the recovery of a sum of Rs. 1375 from the
APPellant who was a subject of H.E.H the Nizam and a
resident of Hyderabad on account
(1) A,I.R. 1952 Mad. 186 (F.D.).
(3) I.L.R. [1944] Nag.250.
(5) A.I.R. 1953 Orissa 13.
(2) I.L.R. [1010] All. 647.
(4) A.I.R. 1955 Cal. 269.
(6) A.I.R. 1943 Bom. 164.
(7) A.I.R. 1958 A.P. 407.
829
of unpaid calls and the Court passed on ex-parte decree on
15-8-1940 against the appellant. The liquidator field an
execution petition in that Court praying for a transfer of
the decree to the City Civil Court Hyderabad which was
ordered on 15-3-1951 when. the Hyderabad Civil Procedure
Code was in force in the Hyderabad Stat under which the
decree of the Madras High Court would be a foreign decree
and the only way in which the liquidator could recover the
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decreetal amount was by filing a suit on that decree. No
doubt the Madras High Court could not on that date i.e.
15-3-1951 pass an order directing the transfer of the decree
as it was to a Court which was not governed by the Indian
Civil Procedure Code (hereinafter called the Code) nor on
that date were there any reciprocal arrangements for ex---
cuting those decrees in the Hyderbad State. Madras High
Court could not therefore transfer a decree passed by it for
execution to a Court which did not satisfy the provisions of
Sectons 43 to 45 on that date. It did not also appear from
the facts of that case whether any notice was served on the
appellant but following the decision of the majority of the
High Courts in this country and also relying on the
observations of their Lordships of the Privy Council in
Sardar Gurdayal Singh v. Raja of Faridkot (1) that a decree
pronounced in absentum by a foreign Court the Jurisdiction
to which the defendant has not in any way submitted himself
is by international law a nullity, I also took the view that
the non-executability of the decree is to be determired as
on the date on which it was passed and that no distinction
can conceivably be made between the. decree passed by
British Indian Courts before the merger or before the
Independence when it was a foreign decree and a decree
passed by the Courts of a native State before the
Independence or merger in both cases the character of the
Judgment would be that of a foreign Judgment and if it
suffers from any want of jurisdiction or otherwise it will
continue to be subject to that defect. This Court had also
expressed a similar view in Raj Rajendra Sardar Malaji
Marsingh Rao Shitole v. Sri Shankar Saran & OrS.(2) when it
held that an ex-parte decree passed in 1948 by the Gwalior,
Court against residents of U.P. who did not appear was not
executable in Allahabad even though the Gwalior Court had
transferred the decree in October 1957 after the Civil
Procedure Amendment Act IT of 1951 come info force after
which the Gwalior Court was a Court under the Cade. It was
held by a majority that the decree passed by the- Gwalior
Court did not change it,, nationality in spite of subsequent
constitional changes or amendments in the Code of Civil
Procedure. that if a decree was unenforceable in a
particular Court at the time it was passed it would not
become enforceable and valid simply because of the political
changes that
(1) 21 I.A. 171.
(2) [1963]2 S.C.R. 577.
830
took place unless there is a specific provision to the
contrary and that the decree being a nullity outside the
Courts of the United States (Madhya Bharat) in the absence
of any specific Provision it could not be enforced in the
United States (Madhya Bharat) Kapur J., speaking for
himself, Ralagopala Ayyangar and MUDholker JJ., observed at
pages 594-595 thus :-
"It will not be correct to say that the decree
which was a nullity before the Constitution
came into force suffered only from the defect
of enforcibility by execution. Sec. 13
creates substantive rights and is not merely
procedural and therefore defenses which were
open to the Respondents were not taken away by
any Constitutional changes in the absence of a
specific provision to the contrary. It is
erroneous to say therefore that the decree of
the Gwalior Court was unenforceable when
passed because of some impediment which the
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subsequent Constitutional changes had removed;
but that decree suffered from a more
fundamental defect of being a nullity and the
rights and liabilities created under it
remained unaffected. by subsequent changes".
The contention that the decree of the Gwalior Court could be
executed after its transfer on September 14, 1951 when the
Civil Procedure Code came into force throughout India by
virtue of Act 11 of 1951 and that therefore the Gwalior
Court had the power to transfer the decree which the
Allahabad Court had under the law authority to execute was
also negatived for the reason that the "Court which made the
order of transfer in September 1951 was then not the Court
which passed the decree within the meaning of Sec. 39". Das
Gupta J., with whom Sarkar J., as he then was, concurred,
did not find it necessary to deal with the question of
foreign decree which as he said the Allahabad Court rightly
considered a nullity. On the second and third question he
held that Allahabad had no power to execute the decree under
Sec. 38 of the Civil Procedure Code as there was no valid
transfer to it from the Court which passed the decree nor
did Section 43 of the Civil Procedure Code as it stood
applied to the execution of that decree.
Even though the observations in Kishendas’s case find
support in the above Judgment the ratio of the decision in
that case being that the Madras Court on the date of the
order could not transfer the decree to the Hyderabad Court,
the facts of the case however do not warrant an application
of the principles of international law or of the decree
being a nullity. The earlier-execution proceedings ended
unsuccessfully with the decision in Hansraj Nathu Ram v. Lalji
Raja & Sons of Bankura(1). It was decided in that case,
(1) [1963]2 S.C.R. 619.
831
that Morena Court not being a Court to Which the Code
applied the decree could not have been transferred and that
Section 38 and 39 of the Code did not afford jurisdiction
for such transfer as the Morena Court at the time of
transfer was governed by the Madhya Bharat Civil Procedur
Code and not by the Code. What is relevant in the present
case is that when the decree holder again applied to the
Bankura Court for execution of his decree by the Morena
Court after the decision of this Court in Hansraj’s case,
both the Court that passed the decree and the Court to which
it is transferred for execution were Courts under the Code,
as such no question of the Bankura decree being a foreign
decree or it being a nullity could arise. The Morena Court
on the date when the order of transfer of the decree was
passed by the Bankura Court is not a Court governed by the
Gwalior law or Madhya Bharat law as such the impediment to
executability of the Bankura decree no longer exists nor
could it be considered in the light of Section 20(c) of the
Amendment Act 11 of 1951 as having saved any right or
privileges under the repealed procedure code of Gwalior or
Madhya Bharat. Whatever may be the views expressed in the
several decisions a view which I was also inclined to take
in the decision referred to, though on the facts of that
case it may not have been necessary, on a further a fuller
Qonsideration I agree with great respect with the views of
my learned brother Hegde, J., that no question of a vested
right or a privilaeae arises to entitle the Respondent to
challenge the execution proceedings in Morena Court. The
decree granted by Bankura Court was executable by the Courts
governed by the same Code by the Court which passed it or by
the Court to which it transferred. Once the Code is’ made
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applicable to the whole of India by the Amendment Act II of
1951 the decree is no longer a foreign decree qua the Morena
Court which is a Court under the Code to which the Bankura
Court could transfer the decree for execution. No doubt in
Shitole case it was observed that Section 13 of the Code
creates substantive rights and not merely procedural and
therefore defence that were open to the Respondents were not
taken away by any Constitutional changes but the ratio of
the decision was that the Gwalior Court not being a Court
that passed the decree after the coming into force of Act IT
of 1951 the Allahabad Court could not execute it. That im.
pediment does not exist now in that the Bankura Court has
transferred the decree to a Court under I the Code. ’Me
plea that Section 48 Civil Procedure Code presents a bar of
limitation is also not tenable. In the result-I agree that
the appeal should beallowd as directed by my learned
brother.
G.C. Appeal allowed.
L 1100 Sup Cl/71
832