JAGANMOHAN REDDY, J. : -

This appeal comes before us on a reference by our brother Qamar Hasan J., as involving an important question of law, viz.; the executability of a decree passed by the Madras High Court in 1940 by the Courts of the then Hyderabad State on the ground of it being a foreign decree. There is no dispute with respect to the facts. The respondent, the Indo-Carnatic Bank Ltd., Madras, went into liquidation and a liquidator was appointed by the original side of the Madras High Court. The liquidator filed an application under Section 191 of the Indian Companies Act for the recovery of a sum of Rs. 1,375/-from the appellant who was a subject of His Exalted Highness the Nizam and resident of Hyderabad, on account of unpaid calls and the Court passed an ex parte order on 15-8-1940 against the appellant to pay this sum to the liquidator. The liquidator presented E, P. 170/1951 praying for transmission of the decree which was ordered ort 16-3-1951.

The liquidator filed an execution petition in the City Civil Court on 7-8-1952 for execution of the decree, but the appellant-judgment-debtor took objection to its executability and urged among other grounds, that the decree of the Madras High Court was a decree of a foreign court passed against a subject of the Hyderabad State and the Madras High Court could not exercise jurisdiction and any subsequent changes in the law cannot validate the order which was otherwise invalid and that the E. P. was barred by limitation.

The Chief City Civil Judge by his order dated 15-1-1953, relying upon a Bench Judgment of the erstwhile Hyderabad High Court in Dyna Craft Machine Co. v. Syed Jahangir Ali, ILR 1952 Hyd 1030 : (AIR 1953 Hyd 19) (A), held that the decree could be executed by the Courts of the erstwhile Indian States which cannot be construed as foreign courts after the promulgation of the Constitution of India. He further held that the execution petition was not barred under Article 183 of the Limitation Act. In this view he directed the issue of a warrant of attachment. The judgment-debtor filed this appeal challenging the executability of the decree on the ground that it is a foreign decree.

2. The determination of the question now before us relating to the executability of the decrees of those courts which were foreign courts before the partition of India or before the coming into force of the Constitution of India, by the Courts which have now become domestic courts, has given rise to conflicting judgments in different High Court. The Bombay High Court in Bhagwan v. Rajaram, AIR 1951 Bom 125 (FB) (B), the Madhya Bharat High Court in Brajmohan v. Kishorilal, (S) AIR 1955 Madh B. 1 (FB) (C) and the Hyderabad Court in ILR 1952 Hyd 1030 : (AIR 1953 Hyd 19) (A) held the view that the decrees passed by the Courts in what were provinces in India were decrees with an impediment, and this impediment having been removed by political changes beginning from the Indian Independence in 1947 and culminating in the transformation of these Courts which were then considered foreign Courts into domestic courts and the foreign creditors into citizens of India by the promulgation of the Constitution, such decrees become executable as decrees of the Indian Courts, and that no question of vested rights would arise as the changes which took place were not changes arising due to the acts of the Legislature, but were due to an act of State.

The Mysore High Court in Subbaraya Setty and Sons v. palani Chetty and Sons, AIR 1952 Mys 69 (FB) (D), the Calcutta High Court in Firm Shah Kantilal v. Dominion of India, AIR 1954 Cal 67 (E); and the Nagpur High Court in Ramkisan v. Harmukhrai, (S) AIR 1955 Nag 103 (F) and Firm Kanhaiyalal Mohanlal Somani v. Paramsukh, AIR 1956 Nag 273 (G); the Allahabad High Court in Maloji Rao v. Sankar Saran, (S) AIR 1955 All 490 (H); the Punjab High Court in Firm Radhe Sham Roshan Lal v. Kundan Lal Mohanlal (S) AIR 1956 Punj 193 (FB) (I), and the Rajasthan High Court in