Mookerjee, J.:— On the 30th May, 1947, the plaintiffs petitioners filed a suit in the Court of the Subordinate Judge at Jessore, then a part of undivided Bengal. In pursuance of an order passed by the Subordinate Judge certain properties, be-longing to the defendant, situate within the district of 24-Parganas, were on the 28th June, 1947, attached before judgment through the District Judge at Alipore. When the suit was so pending in the Jessore Court, under the Indian Independence Act, 1947 (10 and 11 Geo. VIC. 30) two new Dominions came into existence with effect from the 15th August, 1947; and among others the then Province of Bengal was partitioned between the two said Dominions, India and Pakistan.
2. The suit which was pending in the Jessore Court was decreed ex parte on the 9th December, 1948. On the 3rd August, 1949, the plaintiffs decree-holders applied before the Subordinate Judge at Jessore, then situate within the Dominion of Pakistan, for a certificate of non-satisfaction under Order XXI, rule 6 of the Code of Civil Procedure. The certificate of non-satisfaction was accordingly issued on the 18th August, 1949, and was received by the District Judge at Alipore, within the district of 24-Parganas, West Bengal, situate within the Dominion of India. On the 22nd May, 1950, the District Judge at Alipore directed the return of the certificate of non-satisfaction to the Court of the Subordinate Judge at Jessore inasmuch as the decree passed by the Jessore Court was not capable of execution by the Alipore Court in another Dominion. It is against this order that the plaintiffs have obtained the present rule. In spite of service of notice being effected on the Judgment-debtor opposite party on two occasions, no appearance has been entered in this Court on behalf of the opposite party. Notice having been issued on the Advocate-General of West Bengal under Rule 1 of Order XXVIIA of the Code of Civil Procedure, we have had the advantage of hearing the Government Pleaders.
3. Although the learned District Judge has referred to Dominion of India v. Hiralal Bathra (1) (53 C.W.N 817), and Sm. Sushama Roy Chaudhuri… v. A.S.M Osman….* (2) (54 C.W.N 491), it need only be pointed out that in both those cases the decrees in question had been passed before the 15th August, 1947. In the present case, on the other hand, the suit was pending on the 15th August, 1947, and we are required to consider the effect of the provisions contained in the Legal Proceedings Order, 1947, issued by the Governor-General under section 9 of the Indian Independence Act, 1947, under clause 4 of the Legal Proceedings Order—
“Notwithstanding the creation of certain new provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947—
(1) all proceedings pending immediately before the appointed day in any civil or criminal Court (other than a High Court) in the Province of Bengal, Punjab or Assam shall be continued in that Court as if the said Act had not been passed and that Court shall continue to have for the purpose of the said proceedings all the jurisdiction and power which it had immediately before the appointed day;
……………………………………………………..; and
(3) effect shall be given within the territories of either of the two Dominions to any judgment, decree, order or sentence of any such Court in the said proceedings as if. it had been passed by a Court of competent jurisdiction within that Dominion.”
4. Applying these relevant provisions to the facts of the present case it must be held that the Jessore Court continued even after the appointed day to have, for the purpose of the proceedings which were pending before that Court immediately before that day, “all the jurisdiction and powers which it had immediately before the appointed day.” Before the said appointed day, the Jessore Court had jurisdiction to forward a certificate of non-satisfaction to any other Court within the then Province of Bengal. In respect of the suit which was pending on the appointed day in the Jessore Court, the latter Would be treated as if there had been no partition of Bengal and the district of Jessore had not become a part of a separate independent Dominion..
5. Apart from the effect of sub-clause (1) of clause 4 of the Legal Proceedings Order referred to above, sub-clause (3) of the same clause makes a further provision the effect of which may also be considered. In respect of a suit or proceeding which was pending immediately before the appointed day in a particular Court, the decree that may be passed by that Court in respect of that suit or proceeding will be given effect to within the territories of either of the two Dominions on the footling that such a decree had been passed by a court of competent jurisdiction within that Dominion. Under the provisions contained in sub-clause (3) of clause 4 of the Legal Proceedings Order, therefore, the decree passed by the Jessore Court after the appointed day, in a suit or proceeding which had been pending immediately before the said appointed day, will be treated to be one by a Court of competent jurisdiction within the Indian Dominion, although Jessore was not after the said appointed day a part of the Indian Dominion. If the Jessore Court is to be deemed to be a court within the Indian Dominion, as it must be in respect of a suit pending immediately, before the appointed day, there is no handicap on the Jessore Court transmitting a certificate of non-satisfaction to the Court of the District Judge at Alipore, For the purposes of this suit, the two Courts at Jessore and at Alipore have to be treated as being within the same Dominion.
6. Further, the Alipore Court within the Indian Dominion is to give effect to the decree passed by the Jessore Court, though outside the said Dominion, in a suit which was pending in the latter Court immediately before the appointed day, in the same manner as in the case of a decree passed by another Court within the Indian Dominion.
7. In this view, it must be held that the transmission of the certificate of non-satisfaction by the Jessore Court to the Court of the District Judge at Alipore was legal and valid.
8. We have nest to consider the effect of the promulgation of the Indian Constitution. Under Article 395 of the Constitution, the Indian independence Act was repealed. If the Indian Independence Act be not now in force, it is contended that the orders passed by the Governor-General under section 9 of the said Act would also become inoperative.
9. Even if under the Legal Proceedings Order, 1947, referred to above, the transmission of the certificate of non-satisfaction by the Jessore Court to the District Judge at Alipore were valid, can the Alipore Court, on the basis of such a certificate, when the Constitution of India is now in force, put the same into execution? The effect of the repeal, contained in Article 395 of the Constitution, is not to affect the rights and liabilities already accrued under the Indian Independence Act, and the orders passed by the Governor-General thereunder. Section 6 of the Indian General Clauses Act (X of 1897) which is attracted under Article 367 of the Constitution provides that the repeal of the Act will not affect the rights and liabilities which had accrued already. See in this connection Madan Gopal v. Province of West Bengal (3) (54 C.W.N 807). The right which the decree-holders had got under the Governor-General's Order has not been affected by the subsequent repeal of the Indian Independence Act.
10. The result, therefore, is that this Rule is made absolute. The order passed by the District Judge of 24-Parganas directing the return of the certificate of non-satisfaction to the Jessore Court is set aside, and further proceedings in execution will proceed according to law.
11. As there has been no appearance on behalf of the opposite party, there will be no order for costs in this Court,
Guha, J.:— I Agree.
A.K.D.G