Judgment

FAZL ALI J. :- This is a judgment-debtors appeal on a certificate of fitness granted by the Additional Judicial Commissioner, Goa, Daman and Diu and arises under the following circumstances.

2. The decree-holder/respondent had brought a suit on the original side of the Bombay High Court being Suit No. 203 of 1955 against the appellant/judgment-debtor for recovery of certain amount of money. The Bombay High Court passed a decree for Rs. 65,953.79 on June 29, 1960. In the suit brought by the decree-holder/respondent summons was served on the defendant/judgment debtor who filed his written statement and thereafter absented himself and did not take any part in the proceedings of the Court. On December 20, 1961, Goa became a part of India and was made a Union Territory of India by the Constitution (Twelfth Amendment) Act, 1962 passed on March 27, 1962. Thereafter the decree-holder/respondent applied to the Bombay High Court for transferring the decree to Goa Court for execution. This prayer was allowed by the Bombay High Court and by its order dated August 28, 1963, the decree was transferred to the Goa Court for execution. In pursuance of the order of the Bombay High Court the decree-holder filed an execution suit before the Executing Court of Panjim on January 21, 1964. The Executing Court however by its order dated April 26, 1965, held that the decree transferred to it by the Bombay High Court was not executable and accordingly dismissed the execution. Thereafter the decree-holder filed a memo of appeal before the Additional Judicial Commissioner on June 1, 1965 and the appeal was admitted on June 5, 1965. On February 24, 1967, the judgment-debtor/appellant filed his reply. While the appeal was pending before the Additional Judicial Commissioner the Code of Civil Procedure was extended to Goa on June 15, 1966. Accordingly the Additional Judicial Commissioner by its order dated June 28, 1967 held that the decree was executable and he accordingly remitted the case to the Executing Court for proceeding in accordance with the law. The Additional Judicial Commissioner also held that in view of Article 261 (3) of the Constitution of India the decree passed by the Bombay High Court could not be treated to be a nullity and was, therefore, clearly executable.

3. In support of the appeal Mr. B. N. Lokur submitted three main contentions before us :

(1) that the decree passed by the Bombay High Court qua Goa Court was nullity being a decree of a foreign Court. Even if the decree was not a nullity it could be executed by a Goa Court if the original decree had been approved by the Goa Court under Section 50 of the Portuguese Code.

(2) that the order of the Bombay High Court transferring the decree for execution to the Goa Court under Sections 38 and 39 of the Code of Civil Procedure was without jurisdiction inasmuch as the Code of Civil Procedure had not been applied to Goa when the order of transfer was passed; and

(3) that as the provisions of the Code of Civil Procedure were applied to Goa after the order of the Executing Court was passed and a vested right had accrued to the appellant/judgment-debtor the decree continued to be in executable and could not be validated by Article 261 (3) of the Constitution of India.

4. Mr. D. V. Patel appearing for the respondent/decree-holder submitted that as the judgment-debtor had appeared and had participated in the suit for some time the decree passed by the Bombay High Court could not be said to be a nullity. Secondly it was contended that as the Code of Civil Procedure was made applicable while the appeal was pending before the Additional Judicial Commissioner, Goa, the decree became clearly executable and the order of transfer of the decree by the Bombay High Court stood validated. Thirdly it was argued that in view of the provisions of Article 261 (3) of the Constitution of India there was no bar to the execution of the decree which was passed by a Court which was in the territory of India.

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