Gopal Rao Tuljapurkar, for Appellant in S.A. No.410/2 of 1952; K.B. Krishna Murthy and M.S.R. Subrahmanyam, for Respondent in S.A. No.410/2 of 1952, Gopalrao Tuljapurkar, for M. Shankeram, for Appellant in A.A.A.O. No.87 of 1957; K. Ramachandra Rao, for Respondent in A.A.A.O. No.87 of 1957.
Judgement
CHANDRA REDDI, C. J.: -
The question referred to the Full Bench is whether an ex parte decree passed by the erstwhile British Indian Courts against a resident of the then Hyderabad State who had not submitted to the jurisdiction of those Courts can be executed by the Courts of the Hyderabad State after 26-1-1950.
2. Both the cases raise the same point. We will deal with this controversy with reference to S.A. No.410/2 of 1952.
3. The respondent obtained on 27-9-1946 an ex parte decree against the appellant for a sum of Rs.1500/- in the Court of the District Munsif, Kakinada. He applied for transfer of the decree under Sec.39 of the Civil Procedure Code to the Subordinate Judges Court, Warangal. An application for execution was filed in that Sub Court in February 1950. An objection was raised by the judgment-debtor that this being an ex parte decree of a foreign Court, it could not be executed but there should be a regular suit filed on the basis of that judgment under the provisions of Section 13 of the Civil Procedure Code. This plea of the judgment-debtor was negatived by the trial Court as well as by the lower appellate Court. The judgment-debtor has come up in second appeal. It was first heard by Srinivasachari, J. who thought that this involved an important question of law in regard to which there was a strong cleavage of judicial opinion and should be decided by a Bench of this Court. Manoher Pershad and Kumarayya, JJ. before whom the appeal was posted thereafter, referred the matter to the Full Bench for the same reasons. The point for determination in this appeal is whether the ex parte judgment given by a Court situate in the then British India against the appellant, a resident of Hyderabad State who was not amenable to the jurisdiction of the adjudicating Court and who had not in fact submitted to that Court, could be executed after the inauguration of the Constitution.
4. That the judgment in question is a foreign judgment cannot admit of doubt. A foreign Court was defined by Section 2(5) of the Civil Procedure Code as a Court situated beyond the limits of British India, which had no authority in British India and was not established or continued by the Governor-General in Council. This section was substituted by Act II of 1951, by the following :
"Foreign Court means a Court situate outside India and not established or continued by the authority of the Central Government."
However, we are here concerned with the definition of a foreign Court as it obtained prior to this amendment. A foreign judgment under Section 2(6), C.P.C. is a judgment of a foreign Court. There was a similar definition of foreign Court in Hyderabad contained in Section 2(vauv) of the Hyderabad Civil Procedure Code as a Court established or continued by a foreign Government.
5. The circumstances under which a foreign judgment is effective are set out in the following passage in Cheshire on Private International Law (Fifth Edition):
"The first and over-riding essential for the effectiveness of a foreign judgment in England is that the adjudicating Court should have had jurisdiction in the international sense over the defendant. A foreign Court may give a judgment which, according to the system of law under which it sits is conclusively binding upon the defendant but unless the circumstances are such as in the eyes of the English Law justify the Court in having assumed such jurisdiction, the judgment does not create a cause of action that is actionable in England.
xx xx xx xx
Since a foreign judgment is actionable only because it imposes an obligation upon the defendant, it follows that any fact which negatives the existence of that obligation is a bar to the action. One of the negativing facts must necessarily be that the defendant owes no duty to obey the command of the tribunal which has purported to create the obligation. There must be a correlation between the legal obligation of the defendant and the right of the tribunal to issue its command.......personal jurisdiction in this country depends upon the right of a Court to summon the defendant."
6. It is thus clear, that, in order to invest a foreign Judgment with validity, the foreign Court should be a Court of competent jurisdiction in the international sense i.e., that the Court should be entitled to summon the defendant and subject him to judgment. International law negatives a duty on a non-resident foreigner to attend that Court and it will be a valid defence to a suit if an action is based upon a foreign judgment.
7. In actions in personam a foreign Court can be considered as a court of competent jurisdiction only under certain specified conditions viz., when the defendant happens to be within the foreign country at the time of the commencement of the action in obedience to the laws and to the jurisdiction of the Court or when he submits to the jurisdiction of the Court or when the defendant at the time of the judgment in the action is a subject or citizen of such country. Jurisdiction is based on territorial dominion, if none of these circumstances is present, a foreign Court quae such a defendant cannot be regarded as a Court of competent jurisdiction.
8. We may now turn to Section 13 which embodies the principle of private international law, which runs as follows
"A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties upon whom they or any of them claim litigating under the same title except
(a) Where it has not been pronounced by a Court of competent jurisdiction;
(b) where it was not given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable:
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India."
9. Section 14 of the Civil Procedure enacts a presumption as to foreign judgment.
10. A provision similar to section 13 existed in the Hyderabad Civil Procedure Code in the shape of clause (1) of Section 8. Clause (2) of that Section is in the following terms:
"Notwithstanding any provision in sub-section (1) when a suit has been filed on a foreign judgment in His Exalted Highness the Nizams dominions, the Court in which the suit has been filed is not precluded from enquiring into the merits of the case, but when the defendant objects the Court shall make such enquiry."
11. Now, what is the efficacy of a judgment falling within the purview of these provisions? The answer to this depends upon the nature and the character of such a decree.
12. We may usefully refer to the pronouncement of the Privy Council in Sirdar Gurdyal Singh v. Rajah of Faridkote, 4 Mad LJ 267 (PC). In that case, the Rajah of Faridkote obtained two ex parte judgments in two actions brought by him against the appellant for sums amounting to over Rs.76,474-11-3 in the local Court which had independent jurisdiction. The appellant, who was the treasurer to the Rajah, left Faridkote some years before the commencement of the suit and did not come back there. An action based upon the judgments was later brought against the appellant in the Court at Lahore, where he was then resident. It was held by the Privy Council that the suits instituted at Lahore must fail for the Faridkote Court had no jurisdiction on any recognised principle of international law against a person who had left the territory and who was the domiciled subject of another State. The position was stated by their Lordships in these words:
"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. 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"
.
13. If that is the postulate of a judgment rendered in absentem by a foreign Court, could it acquire any validity in certain changed circumstances?
14. A Full Bench of the Bombay High Court in Bhagwan Shankar v. Rajaram Bapu, AIR 1951 Bom 125 (FB) answered that question in the affirmative. The facts of that case were that the appellant obtained a money decree in the Joint Second Class Subordinate Judges Court at Sholapur. This was transferred to the Court of Nyayadhish, Akalkot. An application for the execution of the decree was presented on 9-5-45 and it was dismissed by the District Judge, Akalkot who accepted the objection that the judgment-debtor being a foreigner quae the Court at Sholapur and not having submitted to the jurisdiction of the Court, the Sholapur Court was not 3 competent Court as far as Akalkot was concerned, and consequently the latter Court could not execute the foreign judgment within the meaning of S.13, C.P.C. An appeal was preferred against this order of the District Judge and when it came up for hearing before a Division Bench consisting of Chagla, C.J. and Gajendragadkar, J. they referred it to a Full Bench.
15. Chagla C.J. who spoke for the Full Bench, opined that such a decree was not an absolute nullity for
"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 foundation for this conclusion is the latter part of the passage of their Lordships, which has been extracted above.
16. We feel that the remarks called in aid by the learned Judges cannot have the effect that is attributed to them. In our judgment, they only contain the doctrine that a judgment given in absentem by a foreign Court is an absolute nullity as a foreign judgment, in other words, it is not a valid foreign judgment the execution of which could be levied in Courts situated in a foreign territory. Judged by Municipal Law, the adjudicating Court has no doubt jurisdiction to entertain proceedings when certain requirements are fulfilled. But that does not invest judgments rendered by such courts with validity, if they could not be regarded as Courts of competent jurisdiction. It cannot be open to much doubt that a decree of a Court without jurisdiction is null and void. We are not persuaded that the interpretation placed by the Full Bench of the Bombay High Court on the passage in question is warranted by the language thereof. It is true, as remarked by the learned Judges, that S.20 C.P.C. vests in courts in British India a power to entertain suits in all cases where the cause of action has arisen within the territorial limits of that Court. To that extent, the jurisdiction to take cognizance of suits by that forum is authorised by special local legislation. This section enables Courts in British India to pass decrees which are capable of execution as domestic judgments. It deals only with matters of domestic concern and prescribes rules for the assumption of territorial jurisdiction by British Indian Courts in causes within their cognizance. The operation of the decrees passed by these Municipal Courts is confined to the limits of their jurisdiction as conferred on them by the relevant provisions of the Civil Procedure Code. As foreign judgments, they have no validity and they are, as it were non est so far as the area outside the jurisdiction of the adjudicating courts is concerned, if they do not conform to the principles of Private International Law. Such a judgment is an absolute nullity in the international sense.
17. The same line of thought as in AIR 1951 Bom 125 (FB) was pursued in Brajmohan Bose Benimadhav v. Kishorilal Kishanlal, (S) AIR 1955 Madh B 1 (FB). The facts of that case were quite similar to those of AIR 1951 Bom 125 (FB). By a majority of four to one, the Full Bench decided that an ex parte judgment obtained in a British Indian Court against a resident of a native State, though a nullity at the commencement of the proceedings according to the principles of International law was yet good and effective and could be enforced in any part of the country after the advent of the Constitution. We are unable to find support for this opinion in that case.
18. The primary question that posed itself in Ashbury v. Ellis, 1893 AC 339 was whether the legislature of New Zealand could empower a Court of that country to entertain suits against absentee foreigners. The provision, which was the subject matter of discussion, was in the following words:
"In actions founded on any contract made or entered into or wholly or in part to be performed within the colony, on proof that any defendant is absent from the colony, at the time of the issuing of the writ and that is likely to continue absent, and that he has no attorney or agent in the colony known to the plaintiff who will accept service, the Court may give leave to the plaintiff to issue a writ and proceed thereon without service"
.
Their Lordships ruled that legislation authorising local courts in any case of contracts made or to be performed in the colony to decide whether they will or not proceed in the absence of the defendant is intra vires and reasonable. It is pertinent to note what their Lordships remarked in this context:
"But it was said that a judgment so obtained could not be enforced beyond the limits of New Zealand; and several cases of suits founded on foreign judgments were cited. Their Lordships only refer to this argument to say that it is not relevant to the present issue. When a judgment of any tribunal comes to be enforced in another country, its effect will be judged of by the Courts of that country with regard to all the circumstances of the case."
There is nothing in this passage, which detracts from the principle enunciated by the Privy Council in 4 Mad LJ 267(PC).
19. In this context, we may advert to a judgment of the Privy Council in Setrucharlu Ramabhadra Raju v. Maharaja of Jeypore, ILR 42 Mad 813. There, a suit was instituted under the Code of Civil Procedure, 1908, to enforce a mortgage of property, which was situate partly in a district to which that Code applied and partly in a scheduled district under Act XXIV of 1939 and therefore subject to the special jurisdiction of the agency Courts. The trial Court granted a decree for the sale of the whole of the mortgaged property which was affirmed by the High Court. On further appeal, the Privy Council held that so far as the decree was for sale of the mortgaged property in the scheduled district, the Courts had no jurisdiction to make it, S.21 of the Civil Procedure Code not being applicable to such a case and it could be set aside notwithstanding that no objection to the jurisdiction had been taken in the Subordinate Judges Court and that the word courts in S.17 of the Civil Procedure Code, 1908 means courts to which that Code applied and not Courts one of which was subject to the Civil Procedure Code and the other to agency jurisdiction. This ruling throws some light on the nature of an adjudication by a Tribunal without jurisdiction. We are, therefore unable to share the view expressed in AIR 1951 Bom 125 (FB) and (S) AIR 1955 Madh-B.1 (FB).
20. When once it is established that a foreign judgment of that description is a nullity, would it undergo any change by the supervening political events that transpired subsequently. On 26th January 1950, the Indian Constitution came into force and on that day all States which were only acceding States became part and parcel of India.
21. Article 1 of the Constitution defined the territory of India as comprising the territories of the States, the Union territories specified in the First schedule and such other territories as may be acquired. The consequence of this was that the subjects of the former Indian States became citizens of India along with those who were at one time subjects of British India. The resultant position was that the character of the Courts in erstwhile British India and the Indian States in relation to each other has altered and the status of the residents in various parts of the country has also changed.
22. Now, would these political events bring about any change in the nature of foreign judgments i.e., would a judgment, which was a nullity before remain so or would it cease to be a nullity and acquire full force the moment all the states became part and parcel of India. Here again, AIR 1951 Bom 125(FB) and the judgments of the other High Courts which followed it viz. Ramdayal v. Sankarlal, AIR 1952 Hyd 80 (FB), Dyna Craft Machine Co. v. Syed Jehangir Ali, AIR 1953 Hyd 19 and Meherunnisa Begum v. Venkat Murli Mandhar Rao, (S) AIR 1955 Hyd 184 expressed the opinion that following upon the amalgamation of all the States into one federation, the impediment in the way of execution of foreign judgments was removed and hence they could be enforced in all the areas which originally formed native States. As remarked above, this opinion proceeded on the footing that foreign judgments of the type indicated above, were a nullity in a limited sense i.e., they were valid decrees but unenforceable in Courts other than Courts which passed them by reason of private international law. We have earlier expressed our dissent from this doctrine and stated that such judgments, as foreign judgments, were invalid, though they were valid as domestic judgments. If that were the position, they continue to be a nullity and do not cease to be so by reason of the subsequent changes in the territorial set up of the country. So far as extra-territorial operation of such judgments is concerned, they were non est. Therefore, they cannot acquire any force at a later date. If such judgments are regarded as not having been born, they could not become living decree after the advent of the Constitution. The territorial re-alignment of the country cannot alter the character of the judgments. If they are judgments with no validity or legality, there is no question of removing the impediment to the executability of the decree.
23. In this connection, we have to bear in mind that the material date with reference to which the validity of the judgment is to be tested is the date of making the judgment and not the date when execution is sought. The status of the party to be taken into consideration for adjudicating upon the effectiveness of the decree is as at the time of making of the decree and not the date of its execution. That this is so is apparent from the judgment of the Supreme Court in Kishori Lal v. Shanti Devi, AIR 1953 SC 441. There, an order was passed under Section 488 of the Criminal Procedure Code for maintenance in favour of a wife by a Court at Lahore before the partition in 1947. Later, after the partition, the wife applied for execution of the order in the Magistrates Court at Delhi and the question arose whether the order could be executed in Delhi. The Supreme Court held that it could be executed in Delhi as both the parties were in India, with the following observations:
"Confining our remarks to applications under Section 490 with which alone we are concerned, we see no reason why an order which was competent and valid at the time it was made and which could have been enforced in Delhi should cease to be competent simply by reason of the partition."
They further observed:
"They do not affect the general law that an order which was competent and enforceable in a. particular Court before partition does not cease to be so simply because of the partition."
What follows from the above dicta is that an order validly made does not lose its effect because of the subsequent changes. If the reasoning adopted in AIR 1951 Bom 125 (FB) were to be accepted, the partition of India should be regarded as creating an obstacle. This judgment of their Lordships indicates that the validity of a proceeding should be tested with reference to the date when an order is made and not when it is sought to be enforced. The opinion expressed in (S) AIR 1955 Madh-B.1 (FB) that the validity of a decree has to be determined by a reference to the law in existence on the date when it is sought to be executed and not by a reference to the position of the Courts on the date on which the decree was made is opposed to the doctrine of AIR 1953 SC 441 and cannot be held to be sound. If that criteria is applied, the decree is ineffective and execution of it cannot be sought even after the 25th of January, 1950.
24. Does Art.261 of the Constitution render any assistance to the decree-holder in giving force to this decree and enable him to execute it? Article 261 reads as follows:
(1) "Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State.
(2) The manner in which and the conditions under which the acts, records and proceedings referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament.
(3) Final judgments or orders delivered or passed by Civil Courts in any part of the territory of India shall be capable of execution anywhere within the territory according to law."
25. We are here only concerned with clause (3), which relates to the execution of the decrees. In construing this Article, we must bear in mind the principle that the Constitution is prospective and not retrospective. This is established by Keshavan v. State of Bombay, 1951 SCJ 182 : (AIR 1951 SC 128). It was laid down by their Lordships that the Constitution was not retrospective and that it could not be held applicable even to pending cases. If that were so, clause (3) would not govern foreign judgments which were incapable of execution in courts outside the territorial domain of the adjudicating courts before the Constitution came into force. Therefore, foreign judgments, which were void prior to the Constitution do not acquire validity as a result of this article. The position that prevailed before is maintained despite the inclusion of the Native States in the territory of India.
26. Further, it cannot be overlooked that Article 372 of the Constitution has preserved all the existing laws in the various States and they continued in force in the territories of India immediately before the commencement of the Constitution unless altered or repealed or amended by a competent legislature. We have already remarked that the laws prevailing in the State of Hyderabad precluded the enforceability of judgments of foreign courts obtained ex parte as such. Under Section 8 of the Hyderabad Civil Procedure Code, to which reference has already been made, the judgment-debtor had a right to challenge it, inter alia, on the ground of its being passed without jurisdiction or it was not given on merits. It was only on the 1st of April 1951 that the Civil Procedure Code of 1908 was extended to the whole of India including Part B States.
27. Section 20 of the Code of Civil Procedure Amendment Act (II of 1951), not only did not take away that right but has saved it. The relevant provisions of section 20 are as follows:
"(1) If immediately before the date on which the said Code comes into force in any Part B State, there is in force in that State any law corresponding to the said Code, that law shall on that date stand repealed. Provided that the repeal shall not affect
(a) the previous operation of any law so repealed or anything duly done or suffered thereunder or
(b) any right, privilege, obligation or inability, acquired, accrued or incurred under any law so repealed or......"
28. It is manifest from this section that the rights which the parties had were preserved by this section. We have already said that a judgment-debtor can impeach a foreign judgment upon defences such as that it was rendered by a Court which was not of competent jurisdiction and was as such incapable of execution. Could the right of defendant to resist execution of a decree be characterised as a right coming within the purview of the proviso to Section 20 of Act II of 1951?
29. Salmond in his Jurisprudence (10th edition, page 245) states that there are four classes of rights conferred by law, viz.,
"Right in the strict sense, when the law limits liberty of others in my behalf, liberty when the law allows to my will a sphere of unrestrained activity; power when the law actively assists me in making my will effective: immunity when the law denies to others a particular power me.
A right in the narrow sense is that which other persons ought to do on my behalf, a liberty is that which may do innocently, a power is that which I can do effectively; an immunity is that which other persons cannot do effectively in respect of me. I enjoy my rights through the control exercised by the law over the acts of others on my behalf; I use my liberties with the acquiescence of the law; I use my powers with its active assistance in making itself the instrument of my will; I use my immunities through its refusal to accord this active assistance to others."
30. According to the author, immunity is an exemption from the power of another. The right of a defendant in such cases as the present is immunity from execution on the ground that the decree is nullity so far as the Hyderabad Courts were concerned. Viewed from this aspect, the right to resist execution of a foreign judgment is a substantive right and it is specially saved by Section 20 of Act II of 1951. It could not be contended that the litigants were deprived of the vested rights by reason of the political events that transpired subsequently. If the ratio decidendi of AIR 1951 Bom 125 (FB) were to be accepted as correct, the right given to a person to ignore the process of a foreign Court would be entirely illusory if after exercising that option and refusing to submit to the foreign Court, he finds himself bound by a decree passed by that Court by reason of political changes in the country or in the country in which the foreign Court was situated. This argument though noticed in the referring order of Chief Justice Chagla in AIR 1951 Bom 125 (FB) was not dealt with ultimately when answering the reference.
31. By virtue of private international law, a non-resident foreigner was not bound to obey the summons of a foreign Court or to submit himself to the jurisdiction of that Court and there was nothing which imposes a duty on him to obey the judgment.
32. What follows on this discussion is that a foreign judgment which was a nullity and was incapable of execution at the time it was made could not obtain full force and become executable after the coming into force of the Constitution, the character of the judgment remaining the same in spite of the change in the nature of the courts as a result of re-alignment of territories in the country.
33. As already noticed, a contarry view was taken by the High Court of Bombay in AIR 1951 Bom 125 (FB). This was followed by the High Courts of Hyderabad and Madhya Bharat, to which reference has already been made.
34. A single Judge of the Madras High Court in Golden Knitting Co. v. Mural Traders (India), 1949-2 Mad LJ 822 : (AIR 1950 Mad 293) followed and applied that case.
35. The reasoning underlying, AIR 1951 Bom 125 (FB) did not find favour with several of the High Courts and they dissented from the view of the Bombay and Hyderabad High Courts.
36. In Subbaraya Setty and Sons v. S.K. Palani Chetty and Sons, AIR 1952 Mys 69, a Division Bench of the Mysore High Court ruled that an ex parte decree passed by a Court in the State of Madras against a resident of the State of Mysore and who had not submitted to the jurisdiction of that Court and prior to the accession of Mysore State to the Indian Union could not be executed in Mysore even after the accession, such a decree being by international law a nullity in Mysore State. It was laid down there that decrees which were inexecutable as those of a foreign state according to the law then in force upto the date of the Constitution did not cease to be so on account of the changes introduced by the Constitution. This view was consistently taken by the Mysore High Court, the latest reported case being Metal Corporation of India, Ltd. v. P. Colombi, AIR 1960 Mys 1.
37. A similar opinion was expressed by a Full Bench of the High Court of Travancore-Cochin in P.C. Vareed v. Gopalbai, AIR 1954 Trav-Co. 358. Judgments of a single Judge of the Allahabad High Court in Maloli Rao Narasingh Rao v. Sankar Saran, (S) AIR 1955 All 490 and of the Nagpur High Court in Ramkisan Jankilal v. Seth Harmukhrai Lachminarayan, (S) AIR 1955 Nag 103 are in consonance with this principle.
38. In Firm Shah Kantilal v. Dominion of India, MR 1954 Cal 67, Mukherji, J. disagreed with the rationale of AIR 1951 Bom 125 (FB) and accepted as correct the test propounded in cases which struck a note different from that of the Bombay case. After examining the several arguments advanced upon the Instrument of Accession, States Merger Order 1949, the Extra-Provincial Jurisdiction Act, the Code of Civil Procedure and the Constitution of India, the learned Judge said:
"The question is not to be determined by applying the test whether at the time of execution any of the
sections of the Civil Procedure Code applies, but must be determined in my judgment by the test whether such decrees by their nature of being foreign Court judgments are at all executable and this goes to the very root of their validity and enforceability. The principle that the executing court does not go behind the decree has always been understood subject to the overriding question of whether the decree is a nullity or not. It is settled law that an executing Court can always refuse to execute a decree which is a nullity. A foreign judgment is not conclusive if it is in breach of any international law. In this case the Okhamandla Court in Baroda State when it passed the decree had no jurisdiction against what was then a foreign State of Dominion of India. As such, therefore, it is a nullity. I cannot therefore execute the decree."
39. A Full Bench of five Judges of the Rajasthan High ourt in Laxmichand v. Mst. Tipuri, (S) AIR 1956 Raj 61 (FB), which reviewed the cases bearing on this subject and which affirmed some of the earlier rulings of that Court laid down the same principle, which we have enunciated above. It was held there that a decree in personam made by a Court against a foreigner, who had not submitted to the jurisdiction of that Court was by international law an absolute nullity and if it could not be executed in the area beyond the limits of the Court which passed the decree at the time when it was passed, it could not become enforceable by reason of the political changes that take place unless recognition was given to such decrees by legislation of the States in which it was sought to be enforced.
40. This is also the view of this Court as expressed in Kishendas v. Indo-Carnatic Bank, 1958-2 Andh WR 35 : (AIR 1958 Andh Pra 407). A Division Bench of this Court, to which one of us was a party (Jaganmohan Reddy, J.) dealt with this controversy elaborately and reviewed the case law on the subject exhaustively.
41. We may lastly refer to a Full Bench decision of the Punjab High Court in Firm Radhe Sham Roshan Lal v. Kundan Lal Mohan Lal, (S) AIR 1956 Punj 193 (FB). The majority of the learned Judges held that a decree passed by the Indore Court on 17th February 1948, was by a foreign Court qua the Court in Punjab on the date of the decree and as such execution could not be levied in the Court of Ludhiana on that date and that the right to execute a decree or to raise an objection to the decree was substantial and could not be taken away by a provision of law which was not retrospective and that lastly on the date when the judgment was entered, the judgment-debtor could have resisted execution on the ground that the decree was a nullity being that of a foreign Court and that any subsequent change in the law could not take away that sight.
42. Khosla, J., who delivered the judgment for the majority however sought to distinguish the judgment in (S) AIR 1955 Madh B 1 (FB) and in AIR 1951 Bom 125 (FB) on the ground that these decrees were passed by British Indian Courts and the principle of those cases was inapplicable to judgments passed by courts in native states. In the opinion of the learned Judge, the feature that distinguished the decrees passed by British Indian Courts from those made by the Courts in the native states was that
"the decree passed by a Court of a native State was sever a good decree as far as India was concerned. It was a nullity where the defendant had not submitted himself to the jurisdiction of the Court. This disability could not be removed because a thing which is non est cannot become a positive, effective and legal entity. The decree of the Court of Indore was of no avail whatsoever in Ludhiana at the time it was passed and by the subsequent extension of the Civil Procedure, Code to Indore this decree could not become executable at Ludhiana. Whereas a decree passed by a Court where the Civil Procedure Code applied could be executed throughout the territory of British India or Provinces defined in
Section 3(45), General Clauses Act (X of 1897), or Part A States as defined in the Constitution. This decree was therefore executable anywhere in India. The territory of India was extended by the merger of the native States and those States became subject to the law which prevailed in India. In course of time, the provisions of the Civil Procedure Code were extended to them and therefore a decree which was a good decree in India became a good decree in the area of native States also whereas the opposite case was quite different."
43. With great respect to the learned Judge, we cannot subscribe to the proposition underlying the passage searing on decrees passed by British Indian Courts. If, as stated by the learned Judge himself, the basis of the non-executability was its character as on the date on which it was passed, such a decree was non est and could not become "a positive, effective and legal entity" at a later Stage, the same logic should apply to judgments of Courts in British India. There can be no essential difference in the nature of both the judgments. Section 3(45) of the General Clauses Act could not alter the situation in this behalf. That only said that a decree passed by a Court to which the Civil Procedure Code applied could be executed throughout the territory of British India or provinces defined in Section 3(45) General Clauses Act or Part A States as defined in the Constitution. That would not take in native States which came to be termed as Part B States after the Constitution. In both the cases, the nature of the judgment was that of a foreign judgment and if they suffered from some defect as want of jurisdiction or other wise, at a particular time they continued to be subject to that defect. Hence, no distinction could conceivably be made between the two sets of foreign judgments.
44. It is seen that the weight of judicial opinion is in favour of the view which we have taken.
45. In fine, our answer to the question that poses itself before us is that a judgment in personam pronounced in absentem by a foreign Court against a person, who has not submitted himself to the jurisdiction of that Court and which is incapable of execution outside the territorial limits of that Court, is a nullity and if, at the time it was passed, it had no validity as a foreign judgment it would not acquire new force but continues to be inexecutable even after the advent of the Constitution.
46. This decision governs C.M.S.A. No.87 of 1957 as an identical point arises there also.
47. In the result, the appeals are allowed and the E.Ps. are dismissed. The parties will bear their own costs throughout.
Appeals allowed.