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HIGH COURT OF CALCUTTA
P. B. Mukharji
OWNERS AND PARTNERS OF THE FIRM NAMED SHAH KANTILAL - Appellant
Versus
DOMINION OF INDIA OWING EAST INDIAN RAILWAY - Respondent
Execution Case 23 Of 1950
Decided On : MARCH 30, 1953
FOREIGN JUDGMENT - EXECUTION - JURISDICTION - FOREIGN COURT - DEFINITION - OKHAMANDAL COURT IN BARODA STATE - DECREE PASSED BY OKHAMANDAL COURT BEFORE MERGER - WHETHER A FOREIGN JUDGMENT - WHETHER EXECUTABLE IN INDIA - PRINCIPLES OF INTERNATIONAL LAW - DOCTRINE OF FULL FAITH AND CREDIT - CONSTITUTION OF INDIA, ARTICLES 261, 261(3).
Fact of the Case:
The plaintiff obtained an ex parte decree against the Dominion of India in a Court in Baroda State before the merger of Baroda with India. The decree was transferred to the Calcutta High Court for execution. The defendant objected that the decree could not be executed because no time was specified within which the State was to pay under the mandatory provisions of Section 82, Civil Procedure Code. The plaintiff then applied to the Okhamandal Court to specify the time within which the State was to pay the amount and obtained an order specifying three months as the time within which to pay the amount. The State did not satisfy the decree by payment within the time so specified. The plaintiff then applied for execution of the decree in the Calcutta High Court.
Finding of the Court:
The Court held that the Okhamandal Court in Baroda State was a foreign court and its judgment was a foreign judgment. The Court further held that the decree could not be executed in India because it was a nullity by international law. The Court also held that the Constitution of India did not have the effect of converting the foreign judgment into a domestic judgment.
Issues: 1. Whether the Okhamandal Court in Baroda State was a foreign court? 2. Whether the decree passed by the Okhamandal Court was a foreign judgment? 3. Whether the foreign judgment was executable in India? 4. Whether the Constitution of India had the effect of converting the foreign judgment into a domestic judgment?
Ratio Decidendi: 1. The Court held that the Okhamandal Court in Baroda State was a foreign court because it was not established or continued by the authority of the Central Government of India. 2. The Court held that the decree passed by the Okhamandal Court was a foreign judgment because it was passed by a foreign court. 3. The Court held that the foreign judgment was not executable in India because it was a nullity by international law. The Court held that a foreign court has no jurisdiction to pass a decree against a foreign state unless the foreign state submits to such jurisdiction. The Court found that the Dominion of India did not submit to the jurisdiction of the Okhamandal Court. 4. The Court held that the Constitution of India did not have the effect of converting the foreign judgment into a domestic judgment. The Court held that Article 261 of the Constitution, which provides for full faith and credit to judicial proceedings of the Union and of every State, does not apply to foreign judgments.
Final Decision: The Court dismissed the application for execution of the foreign decree.
( 1 ) THIS is an application in execution. The owners and partners of the firm Shah Kantilal as plaintiffs obtained an ex parte decree on 21-10-1948 from the Court of the Civil Judge, Okhamandal, in the former State of Baroda in Suit No. 4 of 1948-49 against the defendant Dominion of India as owning the East Indian Railway for the sum of Rs. 5683/12/- with interest at the rate of 6 per cent per annum and also for the sum of Rs. 533/7/4 as costs with interest at the rate as aforesaid. On 21-3-1949, the State of Baroda merged with the then Province of Bombay. The decree-holder thereafter made an application on 24-4-1950, in Okhamandal Court for transfer of the decree to the Calcutta High Court for execution and on the same date there , was an order by the Civil Judge, Okhamandal,' transferring such decree to this High Court for execution. On 2-2-1951 the Tabular Statement in execution by the decree-holder was affirmed in this Court. The total amount for which the execution is asked amounts now to Rs. 7083/12/8. In the Tabular Statement the decree-holder asked for realisation of the decretal dues by attachment of the furniture of the East Indian Railway lying at No 17, Netaji Subhas Road, Calcutta. On 14-2-1951, there was an objection that the decree could not be executed because no time was specified within which the State was to pay under the mandatory provisions of Section 82, Civil P. C. Thereupon the decree-holder made an application on 11-4-1951 to the Okhamandal Court to specify the time within which the State was to pay the amount and on the same date obtained an order from that Court specifying three months as the time within which to pay the amount and directing notice to Issue to the Government. I understand on 12-4-1951 no notice was given to the General Manager, East Indian Railway, by the Okhamandal Court to pay the decretal amount within three months. The State did not satisfy the decree by payment within the time so specified. As no payment was made the requisite report under Section 82, Civil P. C. was made on 20-8-1951 to the Government of West Bengal. On 5-12-1951 upon the plaintiff's application certificate of non-satisfaction was directed to be issued by the Judge at Okhamandal. Such certificate of non-satisfaction was issued by that Court under O. 21, R. 6, Civil P. C. on 10-12-1951. Thereafter on 22-7-1952, notice was issued by this High Court upon the Union of India under o. 21, R. 22 (1) (a), Civil P. C. to show why the decree passed against the Union of India and dated 21-10-1948 in Civil Suit No. 4 of 1948-49 in the Court of the Civil Judge, Okhamandal, should not be executed. The application now comes up before me for disposal.
( 2 ) THE main points of contention on behalf of the Government of India are that the suit in which the decree was obtained was filed in a Court of the Native State of the Baroda not established or continued by the authority of the Central Government and that such decree was obtained ex parte and not on the merits of the case and that the Dominion of India never submitted to the jurisdiction of the said Court and the decree passed against the Dominion of India is a nullity and cannot be executed. It is also said that the decree cannot be executed by reason of limitation. These are the main points advanced on behalf of the Union of India to resist the execution. I will record here that the point of limitation has not been pressed before me.
( 3 ) THE main point for determination is whether the Court at Okhamandal in the former Native State of Baroda is a foreign Court and its judgment is to be regarded as a foreign judgment.
( 4 ) THE position of a native state in 1948 was constitutionally different from what it was prior to the Indian Independence Act 1947. Before 1947 the native states in India under the Princes represented a species of constitutional status which was neither completely sovereign nor completely dependent. The native states were, however,
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