1. This is a plaintiff's first appeal against a judgment and decree of the Civil Judge, Sirohi, dated 26-8-1950. The plaintiff Premchand brought, a suit against the defendant Danmal in the Court of the District Judge Sirohi on the allegation that the plaintiff and the defendant carried on a partnership business in cloth and yarn and also of commission agents in Kurnool in the Madras Presidency under the name and style of Deoraj Danmal in which the plaintiff had a five annas share, the defendant a nine annas share, and half an anna share was allotted to charity. It was stipulated between the parties that accounts would be made up on Deepawali every year, and the plaintiff alleged that accounts had accordingly been settled up to the Deepawali of 1946. As the plain-toff wished to go to his native village Manora in the former State of Sirohi, the parties are stated to have further gone into accounts upto Falgun Sudi 8, Smt. 2003 corresponding to 1-3-47, and a sum of Rs. 4444/10/9 was found due to the plaintiff and credited to his account. The plaintiff further alleges to have gone to Kurnool for a brief period some time in December, 1947, when relations between the plaintiff and the defendant became considerably strained. The defendant gave a notice to the plaintiff which he received at Kurnool on 16-12-47 and further notices appear to have been exchanged between the parties and finally the plaintiff stales to have given a notice to tile defendant from his native place on 26-1-1948, to the effect that the plaintiff wanted to dissolve the partnership and to have the accounts gone into and the respective liabilities of the partners settled. Eventually, the plaintiff filed the present suit on 22-4-48 for dissolution of the partnership and rendition of accounts and valued his suit at a sum of Rs. 5100/- and offered to pay additional court-fee if and when so required by the Court. It may be stated here that the plaintiff alleged that he and the defendant were residents of villages Manora and Jawal respectively in the former State of Sirohi.

2. The defendant admitted the partnership business and the shares therein as alleged by the plaintiff, but pleaded that as the defendant mostly lived in his own village viz., Jawal in the former State of Sirohi, the plaintiff mismanaged the partnership business, misappropriated considerable sums of money and, therefore, the defendant had filed a suit against the plaintiff in the District Munsiif's Court at Kurnool for dissolution of partnership and rendition of accounts on 3-3-48, about a month and a half before the plaintiff filed his present suit. The defendant contended that the plaintiff had filed his suit on having come to know of the defendant's suit at Kurnool. The defendant further stated that the plaintiff had left for his native place Manora in March 1947 and had removed some account books and important papers there. The defendant valued his suit in the Kurnool Court at a sum of Rs. 100/- only. The defendant further pleaded that the Sirohi Court had no jurisdiction to entertain the suit filed by the plaintiff, because the subject-matter of the suit was a partnership business situate not in Sirohi but in Kurnool, and also because the entire business of partnership was conducted in the latter place.

3. The plaintiff in his replication denied the allegations of misconduct and mismanagement levelled against him by the defendant and reiterated the position taken by him in the plaint. The plaintiff further denied having any knowledge of the defendant's suit in Kurnool and stated that he had received no summons in that suit up to the date of the filing of his replication, that is up to 27-5-43.

4. On the above pleadings, the trial Court framed certain issues on 30-7-48, with which we are not concerned in this appeal, and raised a further issue on 29-6-49 in view of the circumstance that the defendant's suit filed in the Kurnool Court had meanwhile resulted in a final decree on 27-11-48. That issue reads as follows:

"In view of the Kurnool suit having been decided in a final decree passed on 27-11-48, is the present suit barred by 'res judicata' under Section 11, Civil P. C.?"

It must be stated here that on 27-11-48, the District Munsiff of Kurnool passed an 'ex parte' decree in favour of the plaintiff against the defendant for a sum of Rs. 7033/10/- with interest 'pendente lite' at the rate of 6 per cent per annum and a sum of Rs. 475/14/- as costs, and further interest on the total sum decreed at 6 per cent per annum from the date of the decree till realisation.

The learned District Munsiff further directed that the plaintiff

"shall give credit to the defendant the amounts which the plaintiff would realise according to the 5 annas share of the defendant in items 5 and 10 of the balance-sheet for the year 1947-48"

.

5. Before proceeding further, we may also point out that the defendant Danmal filed an application in the trial Court on 7-11-48 praying that the plaintiff's suit be stayed until the disposal of the Kurnool suit, but that application was rejected on 4-2-49 mainly on the ground that the Kurnool Court was a foreign Court and the pendency of the suit in such a Court did not and could not preclude the Sirohi Court from trying a suit founded on the same cause of action,

6. Eventually, the Civil Judge, Sirohi, to whose court the case had meanwhile been transferred, held that the present suit was barred by the rule of 'res judicata'. The learned Civil Judge, therefore, dismissed the plaintiff's suit With costs. From the above judgment and decree, the plaintiff Premchand has filed this first appeal.

7. The first question for determination before us is whether the learned Civil Judge was right in dismissing the plaintiff's suit as barred by the rule of 'res judicata'. The relevant portion of Section 11 of the Code of Civil Procedure reads as follows:

"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."

It has been contended before us by the learned counsel for the appellant that the suit filed by his client in the Sirohi court did not and could not fall within the mischief of S. 11, Civil P. C. because the Court of the District Munsiff at Kurnool was not competent to try the subsequent suit which was of a higher valuation than the pecuniary jurisdiction of the District Munsiff Kurnool. There appears to us to be no doubt that the District Munsiff at Kurnool was not empowered to try suits of a valuation of Rs. 5000/- or over. It is therefore, unquestionable that he was not competent to try the subsequent suit filed by the plaintiff appellant in Sirohi. That being so, we are of opinion that although the parties in the two suits are the same and the matters directly and substantially in issue are identical, the conditions of Section 11, Civil P. C. are not fully satisfied, because the Court which tried the former suit was not competent to try the subsequent suit, and, therefore, the bar of 'res judicata' could not be raised to the latter suit under Section 11, Civil P. C. It was vehemently argued by learned counsel for the respondent that Section 11, Civil P. C. was not exhaustive, and that the doctrine of 'res judicata' was of wider import than that contained in Section 11 and consequently although the condition as to the competency of the Kurnool Court to try the subsequent suit filed by the plaintiff in the Sirohi Court was not fulfilled, the latter suit was nevertheless barred by the principle of 'res judicata'. We have given this important matter our careful consideration and have considered a large number of authorities which were cited at the bar. It is not necessary to refer to all of them but we shall content ourselves by referring to a few important ones.

8. We may first of all refer to the well-known case of -- 'Mt. Edun v. Mt. Bechun', 8 Suth. WR 175 (A) which is the leading case on the subject.

This was a case under Section 2 of the Act of 1859. In that case Peacock C. J. held that

"in order to make the decision of one Court final and conclusive in another Court, it must be a decision of a Court which have had jurisdiction over the matter in the subsequent suit in which the first decision is given in evidence as conclusive."

9. The above case was approved by their Lordships of the Privy Council in -- 'Misir Raghobardayal v. Raja Sheobaksh Singh', 9 Ind App 197 (PC) (B), a case under S. 13 of the Act of 1877. This was a case where a suit for interest amounting to Rs. 1600/- on a bond for Rs. 12000/- was brought in the Court of an Assistant Commissioner whose jurisdiction was limited to Rs. 5000/-, and the Assistant Commissioner held that the real consideration for the bond was Rs. 4790/- only, and he dismissed the suit. A subsequent suit brought for the recovery of the principal amount, it was held, was not 'res judicata'. Their Lordships observed that there were a number of Courts in India of various grades and with different limits of pecuniary jurisdiction, and that by the Civil Procedure Code a suit was required to be instituted in the Court of lowest grade competent to try it. it was pointed out that the qualifications of a Munsiff and the authority of his judgment could not be the same as those of a district or of a subordinate Judge, who had civil jurisdiction without any limit of amount. Their Lordships, therefore, held that it would not be proper that the decision of the Munsiff upon the validity of a will or of an adoption in a suit for a small portion of the property affected by it should be conclusive in a suit before a District Judge or in the High Court, that the correct interpretation of the expression "Court of competent jurisdiction" occurring in s. 13 of act 10 of 1877 was a Court of concurrent jurisdiction or, in other words, a Court which must possess the pecuniary jurisdiction to try the subsequent suit in which the decision of the first Court is sought to be used as conclusive.

10. The next case which went up to their Lordships of the Privy Council is -- 'Rajah Run Bahadur Singh v. Mt. Lachoo Koer', 12 Ind App 23 (PC) (C). In this case the High Court of Calcutta took, a contrary view to that taken by Peacock C. J. in -- 'Mt. Edun's case (A)', referred to above. This was a suit by a brother against his deceased brother's widow to recover the estate of the deceased on the ground of survivorship, and the question was whether the two brothers were joint in estate or had separated. This issue was raised and decided in favour of the widow against the surviving brother in a previous rent suit filed by the widow against a tenant in a Munsiff's Court wherein the plaintiff joined as an intervener. The Munsiff found that the two brothers had separated. Their Lordships of the Privy Council held in disagreement with the High Court that the Munsiff's decision was not 'res judicata' in the subsequent suit filed in the Court of the subordinate Judge as the Munsiff's Court was one with a limited jurisdiction and not concurrent with that of the subordinate Judge. Their Lordships observed in this case that if this construction of the law were not adopted, the lowest Court might determine finally the title to the greatest estate in the Indian Empire. It is important to notice here that the Legislature meanwhile amended the law and enacted in Section 13 of the Code of 1882 (which replaced Section 13 of the Code of 1877) that the Court trying the former suit must be competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

11. The last Privy Council case which we would like to cite is -- 'Gokul Mandar v. Pudmanund', 29 Ind App 196 (PC) (D). The question for decision there was whether Gokul Mandar was a ryot or a tenure-holder. Their Lordships agreed with the High Court that he was a tenure-holder. Upon the question whether an earlier decision of a revenue officer could be pleaded as 'res judicata' in the subsequent suit, their Lordships held that a decree in a previous suit would not be 'res judicata1 in a subsequent suit unless the Judge by whom it was made had jurisdiction to try and decide, not only the particular matter in issue, but also the subsequent suit itself in which the issue is subsequently raised. Their Lordships further observed that

"the essence of a Code was to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction."

12. The decisions cited above clearly establish the principle that although Section 11 does not exhaust the scope and extent of the doctrine of 'res judicata', it does contain the whole law with respect to cases which fall within the purview of that section, and in such cases we must look to Section 11 and that section alone and not travel outside it to see whether the bar of res judicata applies in a particular case or not. In the words of their Lordships of the Privy Council,

the Code of Civil Procedure is exhaustive on the matters in respect of which it declares the law and it is not the province of the Judge to disregard it.

13. We shall now briefly deal with a few cases to which learned counsel for the respondent referred us in support of his contention. He has relied on -- 'Mohan Lal v. Beuoy Krishna', AIR 1953 SC 65 (E). In that case their Lordships of the Supreme Court held that the principle of constructive 'res judicata' was applicable to execution proceedings. It is obvious that Section 11, Civil P. C. was not in terms applicable to the case before their Lordships. We may at once state that the principle is well established that the doctrine of 'res judicata' is of wider extent than that contained in Section 11, Civil P. C., and can be resorted to upon the general principles of law in circumstances which do not fall within the terms of Section 11, Civil P. C. Reference may also be made in this connection to -- 'G. H. Hook v. Administrator General of Bengal', AIR 1921 PC 11 (F) and -- 'Kalipada De v. Dwijapada Dass', AIR 1930 PC 22 (G). In -- 'Hook v. Administrator General of Bengal (F)'. a retrial of issues which had been finally decided before in the same suit was held to be barred by the principle of 'res judicata'. In -- 'Kalipada De v. Dwijapada Dass (G)', the question of relationship between the parties had been decided in a previous probate proceeding, and it was held that the subsequent suit between the same parties involving the same question was barred. We do not think it necessary to multiply cases of this type because it is obvious that these are all cases to which Section 11 in terms did not apply, and therefore, the general principle underlying that section was invoked.

14. Learned counsel for the respondent next referred us to some other cases where it has been held that a plaintiff cannot get rid of an estoppel or escape the effect of the previous suit by an arbitrary valuation of the second suit or by enhancement of the claim or by over-valuation or by adding a claim for mesne profits. We have been referred in this connection to -- 'Tamiz-un-Nissa v. Syd. Md. Hussain', AIR 1928 All 127 (H);

-- 'Sarupa v. Khemlal', AIR 1928 Lah 929 (I) and

-- 'Ishwar Dutt v. General Assurance Society Ltd.', AIR 1937 Lah 346 (J). A careful examination of this type of cases shows that in some of them, both suits were brought by the same paintiff who put a certain valuation upon his first suit and having failed to substantiate his claim, sought to get rid of his failure by fixing a higher valuation in a subsequent suit by some kind of subterfuge. To allow the plaintiff in such cases to urge that his second suit was not barred because the Court which decided the first suit was not competent to entertain the second one, would be clearly permitting him to take advantage of his own fraud and to indulge in an abuse of the process of the Court. Tims in -- 'Ishwar Dutt v. General Assurance Society Ltd. (J)', the plaintiff who was an agent, of an insurance company brought a suit for an account claiming commission due to him for a certain period. He had previously instituted a suit for a smaller amount in the Court of Small Causes wherein he claimed commission beginning from the same point of time, but for a shorter period. Both suits were based on the same agreement. The previous suit was dismissed by the Court of Small Causes on the finding that the plaintiff had committed a breach of the agreement and forfeited his right to the commission. It was held that the subsequent suit was barred. A contention was raised that the Small Cause Court which tried the first suit was incompetent to try the subsequent suit. This contention was, however, repelled, and in our opinion, quite correctly. It is worthy of notice that the plaintiff in the two cases was the same person, who in the first instance, having moulded his claim for a shorter period and lost, wanted to evade that decision by raising a larger claim based on practically the same cause of action in the subsequent suit. Another illustration is furnished by the case of a landlord who brings a suit against an alleged tenant for a certain amount of rent for a certain period and having failed to prove the relationship of landlord and tenant may institute a second suit for a larger amount and for a longer period. We are of opinion that in such cases although Section 11 does not apply in terms, the subsequent suit must be held to be barred on general principles of law because any other course would tantamount to allowing a fraud to be perpetrated on the Court.

15. There is yet another class of cases where the first suit has been brought by the defendant and the second suit by the plaintiff or vice versa, but in such cases the party pleading the bar of 'res judicata' had an opportunity to raise a particular contention in the earlier suit but did not do so. It has been held in such cases that the party which did not raise the contention in the earlier suit will be debarred from raising it in the second suit. See -- 'Bisheshar Dayal v. Mt. Jafri Begam', AIR 1937 All 251 (K).

16. We may refer to one more class of cases in this connection. These arise where a former Court happens to be one of exclusive jurisdiction. The decision of such a Court will be conclusive in a subsequent suit on the general principle of 'res judicata' notwithstanding the fact that the former Court was not competent to decide the subsequent suit. Thus the decision of a Debt Relief Court that a certain document is a sale with a condition of repurchase and' not a mortgage by conditional sale was held to operate as 'res judicata' in a subsequent suit. 'Yadao Ramasa Teli v. Kesarbai', AIR 1949 Nag 304 (L).

17. The result of the above discussion, in our opinion, is, first, that Section 11 is not exhaustive of the circumstances in which the principles of 'res judicata' may be applied and that it is perfectly legal to apply the principle apart from the section to cases which do not fall within the four corners of that section, and, secondly, that where a case does fall within the purview of Section 11, then all the requirements of that section must be complied with before the rule of 'res judicata' can be held to be applicable. As it is, the essence of the Code to be exhaustive on all matters with which it deals, any other interpretation of Section 11 will render that section nugatory and indeed meaningless.

18. Applying the above test to the present case, we are of opinion that the present suit filed by the plaintiff in the Court of the District Judge, Sirohi, is not barred by the rule of 'res judicata' because the District Munsiff, Kurnool, was not competent to entertain and decide the present suit which was of a higher valuation than his pecuniary jurisdiction. The Kurnool suit was filed by the defendant and the present suit has been filed by the plaintiff. There is no proof that the plaintiff had been aware of the first suit filed by the defendant at Kurnool before the plaintiff filed his present suit. Nor can it be said that the plaintiff has in any way over-valued his present suit to get rid of the decision in the Kurnool Court because the decree obtained by the defendant in that suit for over Rs. 7000 is an obvious indication that the valuation put by the plaintiff is a bona fide one. The case under consideration does not fall within any of the categories of exceptional cases referred to by us above. On the other hand it clearly falls within the four corners of Section 11, Civil P. C. We are not prepared in these circumstances to apply the general principle of 'res judicata' to the present case so as to override the clear and specific provisions of Section 11 of the Code. We, therefore, hold that the present suit is not barred by the principle of res judicata. See also -- 'Anantamoni Dasi v. Bhola Nath', AIR 1941 Cal 104 (M) and -- 'Bachint Kaur v. Karam Chand', AIR 1948 Lah 195 (N).

19. It was next urged by learned counsel for the respondent that the Kurnool suit had culminated in a final decree in favour of the defendant and against the plaintiff, that such a decree is executable by virtue of the provisions of Section 43, Rajasthan Code of Civil Procedure Adaptation Ordinance (Amendment) Act, 1950, and that so long as an executable decree subsists against the plaintiff in the same matter, his present suit should be held to be barred. The plea in effect was, though not stated in so many words, that the plaintiff's suit should be held to be barred by the principle of 'res judicata'. It was urged in reply by learned counsel for the plaintiff that the Court of District Munsiff at Kurnool which was situated in the Madras Presidency was a foreign Court so far as the Sirohi State was concerned, that both parties in this case were residents and subjects of what was then the Sirohi State, that the plaintiff in particular had left Kurnool before the defendant had filed his suit there, that the plaintiff had gone back to Kurnool just for a little while in December, 1947, but had returned and he was not served with any summons in the defendant's suit at Kurnool, or at all that the plaintiff had never submitted to the jurisdiction of that Court, and, therefore, the decree of the Kurnool Court was a nullity and unexecutable.

20. Before dealing with this branch of the arguments of the learned counsel we may state that it does not find a place in the pleadings of the parties in the trial Court but as it appears that this contention was raised before the Court below at the time of arguments and inasmuch as the point was argued at the bar of this Court at considerable length we have thought it proper and desirable to deal with and decide this aspect of the case also. The point also appears to us to be mainly one of law.

Now it seems to us quite obvious that the Kurnool Court, at the time the defendant obtained his decree against the plaintiff on 27-11-48, was a Court situate in the Dominion of India whereas Sirohi was a native State which had its independent judicial administration and set of Courts which were neither situated in the Dominion of India nor had any authority there and which were not established or continued by the authority of the Central Government.

21. Sirohi qua what was formerly British India or later the Dominion of India was a native State ruled by Maliaraja designated the Maharao of Sirohi. With the lapse of paramountcy and the passage of the Indian Independence Act, 1947, Sirohi became independent and got its release from all its obligations to the British Crown. The Sirohi State like most others, however, acceded to the Indian Union on 15-8-1947, by which the Maharao of Sirohi accepted that in certain specified matters, that is, defence, foreign relations and communications, the Dominion Legislature could make laws for the Sirohi State also. Thereafter by an agreement dated 8-11-1948, the Government of Bombay took over on behalf of the Government of India, the administration of the State of Sirohi with effect from 5-1-1949. This position was altered subsequently and the territory of the Sirohi State with the exception of a portion with which we are not concerned was integrated in the Rajasthan State by a Notification dated 24-1-1950, issued un der Section 3 of the Extra Provincial Jurisdiction Act No. 47 of 1947. It will, therefore, be clear from the brief historical review given above that the former State of Sirohi was a foreign State qua the Courts situate in the Dominion of India and vice versa until 4-1-1949. The judgment with which we are concerned in the present case was passed by the Kurnool Court on 27-11-1948, and was, therefore, clearly a judgment of a foreign Court at the date it came to be passed. According to Section 14, Civil P. C., a presumption arises on the production of a certified copy of a foreign judgment that it was pronounced by a Court of competent jurisdiction, such presumption being of course rebuttable.

Section 13, Civil P. C. provides that a foreign judgment is conclusive as to matters directly adjudicated upon between the same parties except in the six cases specified in the section. A foreign judgment receives operation in one of two ways; either the decree-holder may bring a suit on its basis in the Courts of the State where the defendant permanently resides or the former may take steps for the execution of the decree in the State where such decree has been notified to be executable.

22. In the case before us it is strenuously urged by the learned counsel for the plaintiff that the Kurnool Court was not a Court of competent jurisdiction and therefore the decree passed by it was a nullity. The argument is that the plaintiff was a non-resident foreigner qua the Kurnool Court and that that Court according to private international law could have jurisdiction over him only if any one of certain well established conditions was fulfilled. In -- 'Emanual v. Symon', (1908) 1 K B 302 (O), Buckley L. J. stated that a foreign Court has jurisdiction (1) where the defendant is a subject of the foreign country in which the judgment has been obtained; (2) where he was resident in the foreign country when the action began; (3) where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued; (4) where he has voluntarily appeared; and (5) where he has contracted to submit himself to the forum in which the judgment was obtained. The leading case on the subject is -- 'Gurdyal Singh v. Raja of Faridkof, 22 Cal 222 (PC) (P). In that case their Lordships of the Privy Council held that a decree pronounced in absentum in a personal action by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted, was by International law an absolute nullity. Their Lordships proceeded to observe that the defendant

"was 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 fay special local legislation) in the country of the forum by which it was pronounced."

Similarly, in an action in personam the fact that the defendant was carrying on business in a foreign country through a manager or agent at the time when the obligation was incurred will not confer jurisdiction on the foreign Court. See --'Vithalbhai v. Lalbhai', AIR 1942 Bom 199 (Q). A cause of action by itself is not recognised in International Law as a ground for giving jurisdiction to a foreign, Court. 'Firm Chormal Balchand v. Kasturi Chand', AIR 1938 Cal 511 (R). Judging in the light of the principles set out above we find that the defendant admitted in this case that he and the plaintiff were both permanent residents of villages in the State of Sirohi as it then was to which State they owed their allegiance, that the plaintiff was not in Kurnool at the time the defendant's suit was commenced on 8-3-1948, and the plaintiff was never served with any process there or at all and that he never submitted to the jurisdiction of that Court. On these facts we have no hesitation in coming to the conclusion that on the view that the Kurnool Court was a foreign Court, ib was not a Court of competent jurisdiction within the meaning of Section 13, Civil P. C. and, therefore, its judgment was a nullity and was not enforceable anywhere except in the Courts of the State where in the judgment was passed.

23. Learned counsel for the respondent has, however, relied on -- 'Bhagwan v. Rajaram', AIR 1951 Bom 125 (FB) (S) and urged with great force that that case is an authority for the proposition that a decree passed by a foreign Court against a person who has not submitted to its jurisdiction can become enforceable by reason of subsequent changes brought about in the character of the foreign Court and in the status of the defendant. We have given our most anxious consideration to this pronouncement which is entitled to very great respect but we regret that we find ourselves unable to subscribe to the position enunciated there. It has been held in the Bombay case that the decree passed by the Sholapur Court against the defendant, a non-resident foreigner, who was a permanent resident of a village in the Akalkot Sbate which was later merged in the Bombay Sbate was not a nullity, & that the true view was that the enforcement or executability of the decree was limited to the Sholapur Court, although the judgment of the Sholapur Court was according to the principles of private international law 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. It was held further that as the character of the Court in Akalkot was altered by merger on account of subsequent political changes, the initial impediment in the way of the enforcement of the decree of the Sholapur Court in Akalkot was removed, and the decree which was unexecutable in Akalkot before such change became thereafter enforceable and executable at that place. Now we find considerable difficulty in subscribing to the reasoning that if the Sholapur Court was of incompetent jurisdiction at the time it gave its judgment, it thereafter became a Court of competent jurisdiction by reason of certain political changes which came into being later. Again, we are unable to understand how a decree of a Court which was admittedly a foreign Court when it passed the decree could change its character in respect of that very decree and be converted into a decree of a municipal Court. This position becomes hard to understand once we clearly appreciate that whereas the same decree being of a foreign Court and impeachable as having been passed by a Court of incompetent jurisdiction at the time it was passed and the defendant could flatly disregard it becomes unimpeachable because of certain political events that took place subsequently and therefore becomes valid, binding and conclusive as the decree of a municipal Court. Further, the view taken in the Bombay case that the foreign decree was not even a nullity and that there was merely an impediment in the way of its being executed is, again with very great respect, a view which runs counter to all accepted principles of private international law. (See Dicey, Chap. 12 Rule 68 and also Halsbury's Laws of England, Edn. 2 Vol. VI, pages 327 to 333, paras 382 to 388).

24. We are therefore of the opinion that a decree which was a nullity for want of jurisdiction in the international sense at the time it was passed could not acquire a higher status thereafter because the foreign Court whose decree it was has subsequently ceased to be so. The view taken in -- Subbaraya Setty and Sons v. Palani Chetty and Sons', AIR 1952 Mys 69 (T), on this point appears to us to be more in accord with the principles of private international law and with respect we hold accordingly.

25. Learned counsel for the respondent also relied on Article 261 of the Constitution. This Article reads as follows:

"Final judgments or orders delivered or passed 'by civil Courts in any part of the territory of India' shall be capable of execution any here within that territory according to law."

The question, however, is whether this Article applies to judgments or orders of civil Courts passed before the Constitution came into force. In our opinion, the Article has no retrospective operation. The judgments and orders referred to in this Article are of Courts in the territory of India and it can hardly be said that the framers of the Constitution intended that judgments of Courts which were foreign before the Constitution came into force should be made retrospectively executable by virtue of this provision. In -- 'Janardhan Reddy v. State of Hyderabad', AIR 1951 SC 217 (U), their Lordships of the Supreme Court while considering the expression "appeal from any judgment etc. made by any Court or tribunal in the territory of India" in Article 136 of the Constitution, held that the provisions of the article were not intended to operate retrospectively, that some thing which was legally good on 25-1-1950 could not be held to have become bad on 26-1-1950 and that a new law or a change in the old law did not entitle their Lordships to reopen a transaction which had become closed and final. Similarly in -- 'Keshavan v. State of Bombay', AIR 1951 SC 128 (V), their Lordships in interpreting Article 13 of the Constitution ruled that every statute was 'prima facie' prospective unless it is expressly or by necessary implication made to have retrospective operation and that the same rule of interpretation should be applied in interpreting our Constitution. There is nothing in the wording of Article 261 to show that by its express intention or by necessary implication the article must be held to apply retrospectively. We, therefore, hold that this Article has no application to orders or decrees of Courts passed prior to 25-1-50.

26. We now turn to the argument of the learned counsel for the respondent based on Section 43, Rajasthan Code of Civil Procedure Adaptation Ordinance (Amendment) Act of 1950. This section provides that any decree passed by a civil Court in any part of India other than Rajasthan or by a Court established or continued by the authority of the central or any State Government may be executed according to law within the jurisdiction of any Court in Rajasthan. The argument of the learned counsel is that by this provision the executability and enforcibility of the decree of the Kurnool Court or for that matter of a decree passed by any other civil Court in the rest of India has been accepted by the State of Rajasthan and that such decrees admit of no further questioning and, therefore, the plaintiff's present suit must be held to be barred. This argument in our opinion is without any substance. Under Section 44, Indian Civil P. C., of which Section 43 of the Rajasthan Act is in effect a reproduction, it has been, time and again, held that the remedy provided under that section is merely an alternative procedure for enforcing foreign decrees which could otherwise be enforced only by bringing a separate suit founded on the basis of the foreign judgment, and further that it is open to the judgment-debtors when such decrees are transferred for execution to the other Court to raise the defence that the foreign Court passing the decree was not a Court of competent jurisdiction and indeed to raise any other defence under Section 13, Civil P. C., which may stand in the way of such a decree being final and conclusive. See -- 'Veeraraghava v. Muga Sait', AIR 1915 Mad 486 (FB) (W); -- 'Rama Aiyar v. Krishna Patter', AIR 1917 Mad 780 (FB) (X); -- 'Sheo Tahal Ram v. Binaek Shukul', AIR 1931 All 689 (Y); -- 'Sukh Dial v. Mohanlal', AIR 1935 Lah 551 (Z); -- 'Nilratan v. Cooch Behar Loan Office Ltd.', AIR 1941 Cal 64 (Zl) and -- 'AIR 1938 Cal 511 (R)'. In this view of the law it is perfectly open to the Courts in Rajasthan to go behind a decree of a foreign Court and to see whether the Court passing the decree was a Court of competent jurisdiction and to refusg to execute such a decree if the objection as to jurisdiction is well founded. We have already held above that the Kurnool Court was not a Court of competent jurisdiction as regards the present plaintiff in the sense that its decree being against a non-resident foreigner was a nullity qua the Courts in the former State of Sirohi and was therefore unexecutable there.

27. In view of the facts and circumstances mentioned above, we are of opinion that the contention of the learned counsel for the respondent that the judgment of the Kurnool Court operates as a bar to the suit under appeal on the general principle of 'res judicata' is without force.

28. The result is that we hereby allow this appeal, set aside the judgment and decree of the Court below, and send the case back for trial on the merits. The costs of this appeal and the Court below shall be costs in the cause.