A decree of a Court in East Pakistan cannot be executed in India.

HARRIES, C.J. :- This is a petition for revision of an order of a learned Judge of the Presidency Small Cause Court, Calcutta, disallowing the objection of the Dominion of India to a certain execution.

2. On 12th August 1947, the opposite party instituted a suit in the Small Cause Court at Barisal against the Indian General Navigation Company, River Steamship Navigation Company, Bengal and Assam Railway and the governor General in Council representing Bengal and Assam Railway. The claim was for short delivery of certain chillies which had been booked from the steamer station of Ibrahimpur : in East Bengal for delivery at Forbesganj in Bihar.

3. The first two defendants entered appearance, but it appears that the Bengal and Assam Railway and the Governor General in Council did not enter appearance. However on 6th February 1948, the plaintiff obtained a decree in the Small Cause Court at Barisal against defendants 3 and 4, that is, the Bengal and Assam Railway and the Governor-General as representing that railway.

4. Later application was made to the Barisal Court for a certificate of non-satisfaction of the decree. The Court gave the certificate in June 1948 and it is said that written on the certificate were the words that the decree is executable against the East Indian Railway as it had undertaken to pay the liabilities of the Bengal and Assam Railway and therefore had become liable to pay the decretal amount.

5. The Barisal Court sent the certificate of non satisfaction and the decree at the instance of the plaintiff to the Presidency Small Cause Court at Calcutta for execution.

6. On 28th July 1948, the Presidency Small Cause Court wrote to the East Indian Railway informing them that the plaintiff-decree-holder had prayed for attachment of certain movable properties belonging to the railway. Objection was immediately filed on behalf of the Dominion of India objecting to this execution as it was the execution of a decree of a foreign Court. Eventually the Small Cause Court overruled the objection and allowed execution to proceed. It is for revision of that order that the present petition has been preferred to this Court.

7. It is common ground that the Court of Barisal is now a Court in Eastern Pakistan and is not within the jurisdiction of this Court and is not within the Dominion of India. It is now a Court in a foreign country and it seems to have been suggested earlier in these proceeding that a foreign Court could not possibly transfer a decree to a Court in the Dominion of India for execution. Quite clearly the Code of Civil Procedure does not govern any decrees made by a foreign Court and would not allow that foreign Court to transfer such decrees to a Court in the Dominion of India for execution.

8. On behalf of the opposite party, however, reliance is placed on certain orders which were made in August 1947 when the Dominions of India and Pakistan were created. These orders were intended to deal with the rights and liabilities of the two new Dominions and with pending legal proceedings. 9. As this suit was instituted on 12th August 1947, it was pending in the Court of Barisal when the two Dominions became independent and were partitioned on 15th August 1947. It has been urged on behalf of the opposite party that after partition the Barisal Court has jurisdiction to proceed with this case as if the partition had never occurred. Reliance is placed on the Indian Independence (Legal Proceedings) Order, 1947, Art. 4(1) and (3) That Article provides :

"Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947,

(1) all proceedings pending immediately before the appointed day in any civil or criminal Court (other than a High Court) is the Province of Bengal, the Punjab or Assam shall be continued in that Court as it the said Act had not been phased, and that Court shall continue to have for the