Bhagwan Shankar Surd... v. Rajaram Bapu Vithal ..., Bombay High Court, Judgment, Law, casemine.com

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Case Number

Second Appeal No. 271 of 1949

Advocates

M.G Chitale, for the appellant.
B.N Gokhale, for the respondent.
M.G Chitale. The decree under execution is not absolute nullity. It is a good decree so far as the Court which pronounced it is concerned. The competency of the Sholapur Court has to be determined according to the municipal law which is contained in s. 20 of the Code of Civil Procedure, 1908. That Court had jurisdiction to pass the decree as the cause of action arose within its limits, See Gurdyal Singh v. Raja of Faridkot.
See also Girdhar Damodar v. Kassigar Hiragar, Rambhat v. Shankar Baswant, and Gaekwar Baroda State Railway v. Habib Ullah.(3)
The Sholapur Court having jurisdiction qua itself to pass the decree, the next question is can the Akalkot Court say that the decree is a nullity qua itself after it has ceased to be a foreign Court? My submission is that it cannot do so because there is nothing inherently wrong with the decree. The decree was validly passed but merely there was an impediment in the way of its execution in foreign territory. As soon as the territory ceases to be a foreign territory as a result of the merger, the impediment is removed and the decree becomes executable.
[Dixit, J. The decree was not executable when the darkhast was filed in the Akalkot Court. Why should the judgment-debtor lose his right of opposing the execution because of the subsequent merger?]
Once it is agreed that the decree was not an absolute nullity but that there was only an impediment in the way of its execution, the liability of the judgment-debtor arises as soon as that impediment disappears. If the judgment-debtor had come to Sholapur even before the merger, he could have been arrested in execution of the decree. So also if he had any property there, that could have been proceeded against. The judgment-debtor was immune only in a foreign territory and that immunity goes as soon as the territory ceases to be foreign.
B.N Gokhale. My submission is that the decree was absolute nullity at its inception. Internationally speaking it had no existence and the Akalkot Court was justified in not giving effect to it. Subsequent events could not change the nature of the decree and it remained unenforceable at all times by all the foreign Courts. The Akalkot Court refused to execute it not because of any impediment to its execution but because it was a nullity. The fact of merger would not change the character of the decree.
[Gajendragadkar, J. The judgment-debtor had only a procedural right to oppose execution of the decree in a foreign territory. That right was taken away by the merger.]
I submit that the judgment-debtor had a vested right of disobeying the decree and the merger cannot take away that right. It does not merely bring about a change in the status of the judgment-debtor, as is suggested in Chunilal Kasturchand v. Dundappa Damappa.(4)
[Chagla, C.J Can the Akalkot Court refuse to recognise the decree even after it has ceased to be a foreign Court?]
Qua that Court the decree was a nullity at the start and it continues to be so for all the time to come. As it had no international validity, the Akalkot Court could refuse to take its cognisance even after the merger.
The next point is that the municipal law of a State cannot make exception to the private international law. See Cheshire on Private International Law (3rd ed.) at p. 143. If that argument were accepted even the Sholapur Court would have no jurisdiction to pass the decree.
[Chagla, C.J It is too late to advance that argument.]
M.G Chitale, was not called upon in reply.

Judges

Mr. M.C Chagla, C.J
Mr. Gajendragadkar
Mr. Dixit, JJ.

Acts

Section 20(c)

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Smart Summary

Factual and Procedural Background

This opinion addresses a reference to a full bench regarding the enforceability of a decree passed by a foreign Court against a person who has not submitted to its jurisdiction. The decree in question was passed by the Sholapur Court against a defendant who was a non-resident foreigner relative to that Court. The procedural context involves determining whether the decree, though valid and binding in the Sholapur Court, could be enforced in the Akalkot Court, where the defendant resided and which was considered a foreign Court prior to a change in status.

Legal Issues Presented

Whether a decree passed by a foreign Court against a person who has not submitted to its jurisdiction can ever become enforceable by reason of any subsequent event.
Whether the decision in Chunilal Kasturchand v. Dundappa, to the extent that it addresses this point, was rightly decided.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chunilal Kasturchand v. Dundappa	Validity and enforceability of decrees passed by foreign Courts against non-resident defendants.	The Court affirmed that the precedent was rightly decided, holding that such decrees are valid but their enforcement depends on the defendant's submission to jurisdiction or subsequent changes in status.
Gurdyal Singh v. Raja of Faridkot	The status of decrees passed in absentia by foreign Courts where the defendant has not submitted to jurisdiction.	The Court analyzed the Privy Council’s language, clarifying that such decrees are not absolute nullities but unenforceable outside the forum unless local legislation authorizes enforcement, supporting the view that the decree is valid but limited in enforcement.

Court's Reasoning and Analysis

The Court began by assuming the decree passed by the Sholapur Court was valid and that the Court had jurisdiction under Section 20(c) of the Civil Procedure Code to entertain suits against non-resident foreigners if the cause of action accrued within its jurisdiction. It recognized that, ordinarily, Courts exercise jurisdiction only over persons within reach of their processes, but special statutory provisions allow exceptions.

The Court distinguished between the validity of the decree and its enforceability. While the Sholapur Court’s decree was not a nullity, its enforcement in the Akalkot Court was barred because the defendant had not submitted to the Sholapur Court’s jurisdiction, and the Akalkot Court was a foreign Court at that time under private international law principles embodied in Section 13(a) of the Code.

The Court further reasoned that if the status of the Akalkot Court changed—such as through merger or alteration of territorial jurisdiction—so that it was no longer foreign relative to the Sholapur Court, then the decree could become enforceable there without violating private international law. This change effectively removes the impediment to enforcement, as the decree is then executed under municipal law by a competent Court.

Addressing the Privy Council’s decision in Gurdyal Singh v. Raja of Faridkot, the Court clarified that the term "absolute nullity" was qualified by the Privy Council itself, which allowed enforcement in the forum where the decree was passed if authorized by local legislation. Thus, the decree is valid but limited in enforceability outside the original forum.

Regarding the defendant’s claimed vested rights under Section 13(a) and the Merger Order, the Court held that the repeal of Akalkot’s Civil Procedure Code did not remove these rights because the new law contained identical provisions. Instead, any prejudice arose from the change in the political and legal status of Akalkot and its Courts, which altered the defendant’s status from foreigner to citizen.

Holding and Implications

The Court answered the reference question in the affirmative.

The holding confirms that a decree passed by a foreign Court against a non-submitting defendant is valid but unenforceable outside that Court’s jurisdiction until a subsequent event—such as a change in territorial or political status—renders enforcement permissible under municipal law. This decision upholds the correctness of the precedent in Chunilal Kasturchand v. Dundappa and clarifies the limited nature of foreign decrees’ enforceability without submission to jurisdiction. No new precedent beyond this clarification was set. The direct effect is that enforcement may proceed in the Akalkot Court following the change in its status and the defendant's citizenship.

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Bhagwan Shankar Surdi (Original Decree-Holder), v. Rajaram Bapu Vithal Nanajkar (Original Judgment Debtor), .

Chagla, C.J:—

The question referred to this full bench is whether a decree passed by a foreign Court against a person who has not submitted to its jurisdiction can ever become enforceable by reason of any subsequent event, and whether Chunilal Kasturchand v. Dundappa, to the extent that it decides this point, was rightly decided. The facts material for the decision of that question are set out in the referring judgment and it is not necessary to repeat them. We have heard well considered arguments advanced both by Mr. Chitale and by Mr. Gokhale and after carefully considering them we are of the opinion that Chunilal Kasturchand v. Dundappa was rightly decided, and we will briefly indicate why we have come to that conclusion.

The decree which was passed in this case was passed by the Sholapur Court and it was exercising jurisdiction upon a non-resident foreigner. But the Sholapur Court had the right to exercise jurisdiction upon a non-resident foreigner because s. 20 of the Civil Procedure Code confers such jurisdiction. Section 20(c) clearly contemplates that a Court in British India may entertain a suit against a non-resident foreigner if the cause of action has accrued within jurisdiction wholly or in part, and for the purpose of this full bench we are assuming that the suit filed by the plaintiff was properly filed, that the Sholapur Court had jurisdiction to entertain it, and that the decree passed by the Sholapur Court was a decree passed by a competent Court and, the decree was a valid and binding decree. It is perfectly true that ordinarily Courts all over the world exercise jurisdiction only against persons who are within their jurisdiction and whom they can reach with the arm of the law. It would be futile for a Court to assume jurisdiction when it cannot issue process against the party against whom it is seeking jurisdiction. But special laws make exceptions and one of the exceptions is to be found in s. 20(c) where, as we said before, the Legislature has conferred upon the Courts in India the right to proceed against non-resident foreigners although they are not within reach of the processes of that Court. Therefore, we have clearly this position that the decree passed by the Sholapur Court was not a nullity. It is equally true that if the defendant, who was a citizen of Akalkot and, therefore, a foreigner qua the Sholapur Court, did not submit to the jurisdiction of the Sholapur Court and did not acquiesce in the jurisdiction, then the decree passed by the Sholapur Court could not be enforced when it was transferred for execution to the Akalkot Court. The true view of the matter is not that the decree was a nullity, but its enforcement or executability was limited to the Sholapur Court, and it could not be executed or enforced in a foreign territory because the defendant had not submitted to the jurisdiction of the Sholapur Court. The principle of private international law which is embodied in s. 13(a) is that a Court will not enforce the judgment of a foreign Court if that judgment is of a Court which is not a competent Court, and for the purpose of the competency in private international law a Court is never competent when it passes a judgment against a non-resident foreigner who has not submitted to its jurisdiction. Therefore, as far as this particular decree was concerned, as the defendant, we are assuming, did not submit to the jurisdiction of the Sholapur Court, qua the Akalkot Court, the judgment of the Sholapur Court was a foreign judgment passed by a Court not of competent jurisdiction and, therefore, the decree could not be executed in the Akalkot Court so long as the Sholapur Court continued to be a foreign Court. But once it is conceded that the decree was not a nullity and it was valid and binding as far as the Sholapur Court was concerned, then there is no difficulty, with respect, in understanding and appreciating the judgment which we have to consider in this full bench, because if the character of the Akalkot Court changes and if the status of the defendant alters because of that fact, then the impediment which was initially there in the decree being enforced in the Akalkot Court disappears and the decree which was unenforceable till that change came about becomes enforceable and executable in the Akalkot Court. This is not in any way violating private international law. Private international law remains the same. But under the circumstances of the case the Sholapur Court no longer being a foreign Court qua the Akalkot Court, the question of private international law does not arise at all. The decree is then being executed under the municipal law and clearly under the municipal law the decree is executable as it has been passed by a Court of competent jurisdiction.

Some difficulty has been caused by reason, with great respect, of the language used by the Privy Council in Gurdyal Singh v. Raja of Faridkot. But when one analyses the particular passage on which reliance has been placed, the position is made clear. Their Lordships of the Privy Council stated (p. 238.):

“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.”

Emphasis is placed upon the expression used by the Privy Council, viz., that the decree is an absolute nullity. But the Privy Council goes on in the next sentence to qualify what it has said before and this is what their Lordships say (p. 238)

“He is under no obligation of any kind to obey it, and it must be regarded as a mere nullity by the Courts of every nation, except (when authorised by special local legislation) in the country of the forum by which it was pronounced.”

Therefore, the decree is not an absolute nullity. Something which is an absolute nullity can never be enforced in any part of the world under any circumstances. But the Privy Council itself contemplates that such a decree can be enforced in the forum by which it was passed provided special local legislation authorises that forum, and, therefore, in one sense the decree, is a nullity in a limited sense. The other way of putting the same idea is that the decree is a valid decree, but it is not enforceable in Courts other than Courts where it was passed by reason of private international law. Therefore, once the position is made clear that the decree is not an absolute nullity, or, with respect to their Lordships, not even a nullity, but merely there is an impediment in the way of its being executed, then no difficulty arises in coming to the conclusion to which, ??? with respect very rightly, Mr. Justice Rajadhyaksha and Mr. Justice Shah came.

Then there is one other point with which also the judgment has dealt and that is that a vested right was created in the defendant by reason of s. 13(a) of the Code; a similar provision existed in Akalkot before merger and that vested right has been taken away and reliance is placed on s. 5 of the Merger Order. That clause, as rightly pointed out by both the Judges, only refers to vested rights which have been affected by repeal of any legislation which was in operation in the merged States. In this case, although the Civil Procedure Code of Akalkot has been repealed, s. 13(a) has taken its place in identical terms and, therefore, whatever prejudice has been caused to the defendant has not been caused by the repeal of any legislation. The prejudice has been caused by an Act of State which altered the status of Akalkot and also altered the status of the defendant and made Akalkot Court a municipal Court and made the defendant a citizen, whereas Akalkot Court before was a foreign Court and the defendant was a foreigner.

The result, therefore, is that we answer the question in the affirmative.

Answer accordingly.

M.W.P

Bhagwan Shankar Surd... v. Rajaram Bapu Vithal ...