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Dyna Craft Machine Co. And Others v. Syed Jahangir Ali And Another
Factual and Procedural Background
The appellant obtained an ex-parte decree against the respondent in the Bombay High Court on 8th December 1949 for a sum of approximately fourteen thousand rupees. Subsequently, the appellant filed a suit in the City Civil Court based on the foreign judgment of the Bombay High Court, alternatively relying on the original cause of action. While the suit was pending, the Constitution of India came into force. After this, the appellant filed an execution application to enforce the Bombay High Court decree. The respondent raised two objections: that the execution application was barred by limitation, and that the Bombay High Court decree was not executable as it was not passed by a court established in the State. The lower Court rejected the limitation objection but held that the decree could not be executed as it was not from a court established in the State. The appellant appealed this dismissal under Section 47 of the Code of Civil Procedure (CPC).
Legal Issues Presented
- Whether the decree passed by the Bombay High Court, which was previously considered a foreign court under Section 8 of the Hyderabad CPC, is now executable within the territory of India after the coming into force of the Constitution of India.
- Whether Article 261(3) of the Constitution permits the execution of decrees passed by courts in other States within India, including the Bombay High Court, in the territory of Hyderabad.
- Whether the prior impediment to executing a foreign court's decree in Hyderabad has been removed by the integration of Hyderabad into India and the constitutional provisions.
Arguments of the Parties
Appellant's Arguments
- Relied on Article 261(3) of the Constitution, which states that final judgments or orders delivered by civil courts in any part of India shall be executable anywhere within the territory of India.
- Asserted that the Bombay High Court decree should no longer be considered a nullity or incapable of execution within Hyderabad after the Constitution came into force.
- Contended that the Bombay High Court ceased to be a foreign court after Hyderabad became part of India and the appellant and respondent became Indian citizens.
- Pointed out that the Code of Civil Procedure Amendment Act, 1951, defines a foreign court as one outside India, thus excluding the Bombay High Court from this definition.
Respondent's Arguments
- Raised objection that the execution application was barred by limitation.
- Objected that the Bombay High Court decree could not be executed in Hyderabad as it was not passed by a court established in the State (i.e., considered a foreign court).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gurdayal Singh v. The Raja of Faridkot, 21 Ind App. 171 (P.C.) | Held that an ex-parte decree passed by Bombay High Court against a resident of a native State was not a decree of a court of competent jurisdiction and not executable in a native State. | The court acknowledged this precedent but held that post-Constitution, this impediment no longer applies as Hyderabad became part of India. |
| Bhagwan Shanker v. Rajaram, AIR 1951 Bom 125 (Full Bench) | Held that the impediment to execution of decrees of courts once in British territory in native States was removed by Article 261(3) of the Constitution. | The court relied on this to conclude that the Bombay High Court decree is now executable in Hyderabad. |
| Ramdayal v. Sankarlal, ILR (1952) Hyd 196 (Full Bench) | Supported the view that Article 261(3) removes obstacles to executing decrees of courts from other States within India. | The court followed this precedent to affirm the Bombay High Court's decrees are executable. |
| Priyambada Debee v. Bholanath Basu Opposite Party, AIR 1933 Cal 534 | Established that courts can take notice of subsequent events and grant relief accordingly. | The court used this to justify overruling the objection based on changed status after the Constitution. |
Court's Reasoning and Analysis
The Court analyzed the status of the Bombay High Court decree in light of the constitutional changes brought about by the integration of Hyderabad into India and the coming into force of the Constitution. Previously, under Section 8 of the Hyderabad CPC and the Privy Council decision in Gurdayal Singh, the Bombay High Court was considered a foreign court, and its decrees were not executable in Hyderabad. However, Article 261(3) of the Constitution provides that final judgments or orders from any civil court in any part of India are executable throughout India without restriction.
The Court reasoned that since Hyderabad became part of India under Article 1 of the Constitution and the judgment-debtor became an Indian citizen under Article 5, the Bombay High Court ceased to be a foreign court in relation to Hyderabad. Additionally, the Code of Civil Procedure Amendment Act, 1951, defined foreign courts as those situated outside India, excluding the Bombay High Court. Thus, the earlier impediments to execution no longer apply.
The Court found the lower Court's conclusion that the decree was not executable erroneous and held that the decree must be executed as any other decree passed by a court within the State. The Court also noted that it could take notice of the changed circumstances and grant relief accordingly.
Holding and Implications
The appeal is allowed, the order of the lower Court dismissing the execution petition is set aside, and the case is remanded for disposal according to law.
The direct effect of this decision is that decrees passed by the Bombay High Court, previously considered foreign and not executable in Hyderabad, are now executable within Hyderabad following the constitutional integration of Hyderabad into India. No new precedent beyond this case's specific context is established, but it clarifies the applicability of Article 261(3) and the amended CPC provisions concerning execution of decrees across Indian States.
A. Srinivasachari, J.:— This is an appeal under Section 47 of the CPC against the order of the City Civil Judge, dismissing the execution petition of the appellant.
2. The brief facts relating to this case are that the appellant obtained a decree against the respondent in the Bombay High Court on the 8th December 1949 for a sum of rupees fourteen thousand and odd. This decree was an ex-parte decree. Later, the appellant filed a suit in the City Civil Court based on the foreign judgment of the Bombay High Court. He based his suit alternatively on the original cause of action as well. While the suit was pending in the lower Court, the Constitution came into force and after the coming into force of the Constitution, the appellant filed an execution application seeking to execute the decree that he obtained in the Bombay High Court. Two objections were raised by the respondent: firstly, that the application was barred by limitation, and secondly, that the decree of the Bombay High Court could not be executed. So far as the first objection was concerned, the lower Court negatived the contention and held that the application was within time. As regards the second objection, the Court gave the order that the decree of the Bombay High Court could not be executed for the reason that it was not a decree passed by a Court established in the State. We heard the learned Advocate for the appellant and the respondent appeared in person.
3. Reliance is placed by the learned Advocate for the appellant on Article 261, clause (3) of the Constitution of India, which is to the following effect:
“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 that territory accoring to law”.
4. As the words show, Article 261(3) clearly allows the execution of a decree passed by any Court in any State within the territory of India in any other State in India. There are no words restricting the operation of the decree in any State within the territory of India. We are one with the learned Judges of the Bombay High Court in that we are of the opinion that a decree passed by, the Bombay High Court can no longer be regared as a nullity and therefore incapable of execution. The idea of an ‘ex-parte’ decree as against a non-resident foreigner having no operative force according to international law cannot, in our opinion, apply to the facts of this case.
5. The Bombay High Court was a foreign Court within the meaning of Section 8 of the Hyderabad CPC. No doubt, according to the decision of the Privy Council in the leading case of — ‘Gurdayal Singh v. The Raja of Faridkot’, 21 Ind App. 171 (P.C) an ‘ex-parte’ decree passed by the Bombay High Court against a resident of a native State could not be regarded as a decree passed by a court of competent jurisdiction, capable of being executed by a Court situated in a native State. The question arises whether, by reason of Hyderabad having become part of the territory of India after the Constitution, the impediment, that was subsisting to a decree of a Court situated in erstwhile British India being executed in Hyderabad as a decree of its own Court has ceased to exist. As was held in the Full Bench case of — ‘Bhagwan Shanker v. Rajaram’, AIR 1951 Bom 125, the impediment, if any, that was in the execution of a decree of a Court that was once in British territory in a native State, had been removed by the provisions of Article 261(3) of the Constitution and once the impediment had been removed, there was nothing to prevent the execution of the decree of one State in another State within the territory of India. The same view has been held in the Full. Bench case of — ‘Ramdayal v. Sankarlal’, reported in ILR (1952) Hyd 196 (F.B), which followed an unreported case of a Division Bench.—‘J.H Subbiah v. Revachand’, No. 6 of 1351 F., D/- 24-7-51 (Hyd). The Bombay High Court has ceased to be a foreign Court; if it has ceased to be a foreign Court its decrees are capable of execution as any other decree passed by any Court in this State.
6. It may be that prior to the Constitution the judgment-debtor as a citizen of Hyderabad, a native State under the rule of the Nizam, was entitled to resist the execution of a decree that was passed by a court of territory to which he did not owe allegiance. But after the advent of the Constitution Hyderabad became a part of the territory of India, vide Article 1 of the Constitution & the judgment-debtor automatically became a citizen of India under Article 5 of the Constitution of India. When he became a citizen of India and his status changed, it would no longer be open to him to regard the Bombay High Court as a foreign Court. Further by virtue of the provisions of the Code of Civil Procedure Amendment Act, No. II of 1951, Bombay High Court cannot be regarded as a foreign Court for in Section 4(I) of the above Act, ‘foreign court’ has been defined as “a court situate outside India and not established or continued by the authority of the Central Government”. It is well accepted that a Court can take notice of subsequent events and grant proper relief, vide — ‘Priyambada Debee v. Bholanath Basu Opposite Party.’, AIR 1933 Cal 534, & on the day when we are called upon to adjudicate, certain events have happened, which disentitle the judgment-debtor from resisting execution on the ground of the decree of the foreign Court, we can over-rule the objection and order execution.
7. We, therefore, hold that the decision of the lower Court that the decree is not executable, is erroneous. We allow the appeal, set aside the order and remand the case for disposal according to law.
8. In view of this order of ours in the appeal, the learned Advocate for the appellant states that he does not press the revision petition that he has filed against an interlocutory order in the suit itself. The revision petition is, therefore, dismissed. This judgment will govern the revision petition as well.
Shripat Rao Palnitkar, C.J:— I agree. The question to be decided is whether the Bombay High Court is a foreign Court as defined in Section 2(5) of the CPC, as amended by Act No. II of 1951, after the establishment of the Republic of India and integration of Hyderabad State and the commencement of the Constitution. In this connection, the provisions of Article 261, clause (3) of the Constitution must also be considered. It is clear that as a question of international law, the Bombay High Court's decree cannot be considered to be a decree of a foreign Court, vis-a-vis the Hyderabad State courts, as this State and the State of Bombay are parts of the same Republic of India. Thus, the rulings, which declare that a, decree passed by a foreign Court is a nullity, can no longer be applicable. I have held in the Full Bench case of — ‘Ramdayal v. Shankerlal’, reported in ILR (1952) Hyd 196 (F.B), that in such cases the provisions of Article 261(3) will be applicable and I have discussed the question in detail in that case, giving reference to various Indian and other rulings. It is not necessary to repeat the reasonings given therein. I, therefore, agree with the order proposed by my learned colleague.
9. Case remanded.
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