Judgment

KAPUR J. : This is an appeal against the judgment and order of the High Court of Allahabad holding that the execution of the decree passed by the Additional District Judge, Gwalior, dated November 18, 1948, in favour of the appellant against the respondents was not executable at Allahabad. The appellant in this court is the decree-holder and the respondents are the judgment-debtors.

2. For the decision of this appeal it is necessary to deal with the various Statutes, Orders and agreements as a result of which the erstwhile Indian state of Gwalior became a part of the territories of the Union of India governed by one Civil Procedural law. It will also be necessary to refer to the various changes in the law of civil procedure applicable at the various stages of the litigation leading to this appeal.

3. We Shall first deal with the integration of the Indian State of Gwalior with the Indian Union. Upto August 15,1947, i.e., before the Independence of India under the Indian Independence Act (10 & 11 Geo. Ch. 30) Gwalior was what was termed under the Government of India Act of 1935 an Indian State and its Courts were foreign courts within S. 2(5) of the Indian Code of Civil Procedure. After independence by S. 7(1) (b) of that Act the suzerainty of the British Crown lapsed and so also all treaties, agreements and obligations which had previously been entered into between the Rulers Indian Sates and the British Crown. The second question can conveniently be dealt with at a later and appropriate stage.

4. By the Instrument of Accession which by August 15, 1947 (p. 36 of white Paper on Indian States), was entered into between the Ruler of the State of Gwalior and the Dominion of India certain subjects mentioned in the schedule to that Instrument were transferred to the Dominion of India but Civil Procedure was not one of them. By a covenant signed in April, 1948 the Rulers of Gwalior, Indore and certain other States in Central India formed the United State of Gwalior, Indore and Malwa which was termed United State (Madhya Bharat). By a fresh instrument of Accession executed on July 19, 1948, the United State acceded to the Dominion of India and when the Constitution came into force it became Madhya Bharat - Part B State-and was governed by the provisions of the Constitution as applicable to such States. This then was the process of transformation of the Indian State of Gwalior into a part of the Republic of India.

5. On May 15, 1947, the appellant instituted a suit in the Court of the District Judge. Gwalior, for recovery of Rs. 6,92,236-15-0 against the respondents, who are the sons and legal representatives of the late Munshi Ishwar Saran. The writs of summons were served on the respondents on September 12, 1947, but they did not appear in the Court of the Additional District Judge who actually tried the suit. On November 18,1947, the trial judge ordered the suit to proceed ex parte and on November 18, 1948, the claim was decreed with costs and interest. On August 9, 1949, the appellant made an application to the Court of the Additional District Judge praying for transfer of the decree for execution to the Court of Civil Judge, Allahabad, where the properties of the father of the respondents were situate. On April 25, 1950, the Court passed the following order :-

"I order transfer of this execution case, A certificate of transfer relating to non-satisfaction of decree be issued to the Civil Judge, 1st Class, Allahabad, for execution proceedings. This execution case be dismissed".

6. On September 14, 1951, another order was made sending the decree for execution to the Court of the Civil Judge, 1st Grade, Allahabad. Along with it a copy of the order dated April 25, 1950, was also sent. The order was as follows :-

"Order dated: l4th September, 1951, for transfer of decree to another court for execution.

Whereas in the above mentioned case the applicant submitted that the Judgment-debtor resided or held property within the local limits