Judgment

KAPUR, J. : This is an appeal against the judgment and order of the High Court of Madhya Bharat at Gwalior on a certificate of that Court under Art. 133 (1) (c) and like Civil Appeal No. 24 of 1961 (1960), (Rajendra Sardar Moloji Nar Singh v. Shankar Saran, AIR 1962 SC 1737) raised the question of the applicability of the Indian Code of Civil Procedure and the question whether the decree sought to be executed was a decree of a foreign Court or not. It is a reverse case in the sense that the decree sought to be executed was passed by a Court in West Bengal - a province of what was British India. In this appeal the appellant is the judgment-debtor and the decree-holder is the respondent.

2. On December 3, 1949, a decree was passed in favour of the respondent by the Sub-ordinate Judge, Bankura, in West Bengal and a certificate of transfer was applied for on July 27, 1950, granted on August 8, 1950, and was transferred for execution on August 28, 1950. On September 25, 1950, the decree-holder took out execution in the Court of the Additional District Judge, Morena, in what was Gwalior State and subsequently became a part of the United State named Madhya Bharat and after the Constitution the Part B State of Madhya Bharat. On the judgment-debtor s objection the application for execution was dismissed on December 29, 1950, but the appeal against that order was allowed by the High Court on November 15, 1954.

3. It is unnecessary to set out the various Sections of the Indian Code of Civil Procedure or to trace the various steps by which Ss. 43 and 44 were amended in that Code; that we have done in C. A. No. 24 of 1960: (AIR 1962 SC 1737) decided today. It was contended before us by the judgment-debtor that the Court had no power to transfer the decree under S. 38 to the Court in Morena. On the date when the decree was transferred the Courts in Madhya Bharat were governed by the Indian Code of Civil Procedure as adopted by the Madhya Bharat Adaptation order of 1948 but the power of transfer by the Court at Bankura was governed by Ss. 38 and 39 of the Indian Code of Civil Procedure. Under that Code, the Court to which the decree could be transferred was one established in what was British India because the Code extended to the territories of what was British India and it was not till the coming into force of Act II of 1951 on April 1, 1951, that the Indian Code was applied to the "Territories of India" which comprised Parts A, B and C States.

4. It was contended by Mr. N. S. Bindra counsel for the respondent that under Ss. 38 and 39 of the Indian Code of Civil Procedure a decree could be sent for execution to any Court, the expression "Court" being understood as a place where justice was administered and for this reliance was placed on Manavala Goundan v. Kumarappa Reddy, ILR 30 Mad 326 where the word "Court" in S. 622 of the old Civil P. C. was defined as a place where justice is judicially administered; but that was in a case where it had to be determined whether a District Registrar was a Court for the purpose of Civil Procedure Code. The definition as given in that case is not of any help in determining the question now before us because what we have to see is whether the Court at Morena even though it administered justice judicially was covered by the word "Court" in S. 38 or not. As we have said above "Court" in the Section means a court to which the Indian Code of Civil Procedure applies and not any Court. Similarly at the relevant time in Ss. 40 and 42 of the Indian Code of Civil Procedure "Court" necessarily meant a Court to which Indian Civil Procedure Code applied i.e., a Court in what was British India. The Court at Morena not being such a Court the decree could not be transferred to it under the Indian Code of Civil Procedure and Ss. 38 and 39 were inapplicable to justify such a transfer.

5. The decree, it was then argued, was executable under S. 43 of the Indian Civil Procedure Code as amended by the Adaptation of Laws