1. The petitioner before this Court is a, trader doing business within the jurisdiction of the District Munsiff's Court at Tellichery in the province (State) of Madras. The respondent is-also a trader residing and doing business in Trichur, Cochin State. The respondent purchased, certain articles from the petitioner at Tellichery on credit. The petitioner filed Small Cause No. 344 of 1948 in the Court of the District Munsiff of Tellichery for the balance due to him from the respondent. The respondent did not appear at the hearing and the decree passed against him was ex parte. That decree was transferred to the District Munsiff's Court, Trichur for execution. The respondent objected to the execution and the Court passed the following order:
“Heard. This being a decree of foreign Court, I don't think the execution can be allowed. Objections upheld. Dismissed — 12-7-1950.”
2. This is the order which is sought to be revised.
3. At the time that the decree was passed, the respondent was not subject to the jurisdiction of the Court that passed it, having been a non-resident foreigner and not having submitted himself to that Court's jurisdiction.
4. The Court, however, could entertain the suit and pass the decree as the cause of action for the suit arose within its jurisdiction. The decree was therefore good for internal purposes, though not for international purposes, that is to say, it could be executed within the jurisdiction of the Court which passed it as also anywhere within the jurisdiction of the Dominion of India against any property of the judgment-debtor or even against the judgment-debtor personally if such execution be available within the territory of the Dominion of India. It could not, however, have been executed outside the Dominion of India by proceeding against the person or property of the judgment-debtor. There was an agreement between the Government of India and the Cochin State for reciprocal execution of decrees. Had the respondent submitted to the jurisdiction of the Court at Tellichery, that is, had he appeared and contested the suit and had there been a decree after contest, it could have been transferred to the Court at Trichur where the respondent was Tesiding and executed against him personally or against his property. This not having happened and the decree having been one passed ex parte against a non-resident foreigner at the time that it was passed, that is, in the year 1948, the decree could not have been executed, against the respondent personally or against his properties, in the Court of Trichur. The order passed by the Court below would have been right had it been passed in the year 1948.
5. The contention raised on behalf of the decree-holder petitioner is that the change that has been brought about by the Constitution of India enables the execution of the decree against the respondent in the Court at Trichur. It is contended that Travancore and Cochin which were independent States, became a single State on account of their integration and that the integrated State of Travancore-Cochin is one of the States specified in Part B of the First Schedule to the Constitution of India and that the consequence of the Constitution of India is that the States of Madras and Cochin which were formerly independent States, became dependent States. Articles 1 and S. of the Constitution read as follows:
“1. (1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule.
(3) The territory of India shall comprise:
(a) the territories of the States;
(b) the territories specified in Part D of the First Schedule; and
(c) such other territories as may be acquired.
3. At the commencement of this Constitution, every person who has his domicile in the territory of India and
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement,
shall be a citizen of India”.
6. From these articles it is clear that the respondent is a citizen of India as he has his domicile in the State of Travancore-Cochin which is within the territory of India as defined in Article 1. The respondent having become a citizen of India, ceased to be foreigner so far as the Court at Tellichery is concerned as it is situate in the State of Madras within the territory of India. That Court therefore, ceased to be a foreign Court so far as the respondent is concerned. If, therefore, a decree is passed by the Court at Tellichery againt the respondent resident at Trichur, Travancore-Cochin State, after 26-1-1950, that is the date of the Constitution of India, the decree could have been transferred to and executed by the Trichur Munsiff's Court against the respondent personally or against his properties there, even though the decree had been passed ex parte against him.
7. The question is whether the decree in this which was passed before 26-1-1950, which could not have been executed at Trichur before that date, became so executable on account of the operation of the Constitution of India. The reason why the decree could not have been executed at Trichur at the time it was passed was that Trichur was in the Cochin State which was then an independent State whose subjects were not amenable to the jurisdiction of the Court at Tellichery which passed the decree, but the Cochin State ceased to be an independent State and the respondent ceased to be a foreigner so far as the Court at Tellichery is concerned on account of the Constitution of India, with the result that the only obstacle that there was to the execution of the decree in the Cochin State ceased to exist and the decree became executable. A similar question arose for the consideration of the Bombay High Court in ‘Bhagwan Shankar v. Rajaram Bapu’, AIR (38) 1951 Bom 125. That was also a case of a decree passed ex parte by the Court at Sholapur against a resident of the State of Akalkot which was then an independent State, whose subjects were not amenable to the jurisdiction of the Court at Sholapur. Subsequently, the Akalkot State got itself merged in Sholapur. The question was whether the decree passed by the Court at Sholapur which was not executable against the judgment-debtor at the time it was passed, became so executable on account of merger of the Akalkot State in Sholapur. It was held that the decree would be executed. The contention of the judgment-debtor was that he had a vested right in the shape of an immunity from execution of that decree which he should not be deprived of. This contention was answered by saying that the change is one brought about by an act of State about which it is not competent for him to object. I am in respectful agreement with the Full Bench decision of the Bombay High Court in the aforesaid case which applies to the facts of the present case. The circumstance that, whereas in the said decision of the Bombay High Court it was a case of a merger of a State with another, whereas here it is a case of two States which were originally independent becoming dependent, makes no difference for the application of the principle. Chagla, C.J, comments upon the use of the word ‘void’ by the Privy Council in the leading case of ‘Gurdyal Singh v. Raja of Faridkot’, 22 Cal 222 that when a decree is valid for any purpose, it can hardly be said to be “void” if that expression is meant to convey the idea of an absolute nullity which on the very hypothesis, it is not. It may be said to be a defective decree in that it had not then behind it the sanction for its operation beyond the territory of the Court within which it was situate. The decree in question could have been executed, as already stated, anywhere within the territory of the Dominion of India. The consequence of the Constitution of India is to enlarge the territory of India by including within it the territory of the State of Travancore-Cochin. The point of time that has to be regarded in considering the question of executability is not the time at which the decree was passed, but the time when it is sought to be executed because, notwithstanding the existence of any obstacle to execution at the time the decree was passed, if that obstacle is removed by the time the execution of the decree is sought, that obstacle cannot operate as it is only its continued existence that can stand in the way of execution. The order in question having been passed on 12-7-1950 when the only obstacle to the execution had ceased to exist, the order passed by the Court below refusing execution cannot be supported and has to be set aside.
8. This case is a simple one as there is no contention raised on behalf of the respondent that the decree was one that ought not to have been passed for any reason for which the claim or action could be resisted and the respondent would have had to confess the judgment had he appeared in the Tellichery Court in answer to the summons. For instance, there was no contention that the claim is untrue or that it has been discharged, or that the plaintiff is not entitled to sue or that the claim is barred by limitation or for any other available ground. A case where such pleas are or have to be put forward may present a different aspect and difficult questions for consideration. The defendant not subject to the jurisdiction of a Court where he is sued, need not have appeared and contested if he was content not to have the execution outside the territory of the country in which the Court is situated. That may be a justification for him for not having appeared there and contested. When subsequently the obstacle in the way of execution of a decree passed ex parte is removed by an act of State, the question as to whether the defendant should be given an opportunity to raise his contentions in the suit and if so, when, in what manner, and on what conditions, will be matters for consideration. It may be that in certain cases if liberty to defend the action be not granted to the defendant, serious hardship will be caused, about which he might legitimately complain on the ground that he was not at fault in not having entered appearance and defended the action in the forum wherein it was presented.
9. The respondent raised a contention that though the decree is one passed in exercise of the small cause jurisdiction of the Court at Tellichery, the value of the decree being over Rs. 100/- which is the limit of the small cause jurisdiction of the Trichur Munsiff's Court, the order passed by the Court below must be regarded as one passed on the original side and therefore a revision before this Court is not maintainable. It is not clear from the record what jurisdiction the Munsiff actually exercised and no authority has been cited before me to the effect that under the circumstances the only jurisdiction that could have been exercised is one under the original side. I am not inclined to uphold this objection.
10. This Civil Revision Petition should therefore be allowed with costs.
11. Revision allowed.