1955 Supreme(Raj) 318

Rajasthan High Court
Wanchoo C.J., Bapna, Dave, Modi & Bhandari, JJ.
Laxmichand - Appellant
Versus
Tipuri - Respondents
F.B. Civil Misc. Execution First Appeal No.27 of 1950
Decided On : October 27, 1955

Headnote:Civil P.C., Sec. 13—Foreign decree—Foreign court no longer foreign due political changes — Effect on execution of decree—Foreign court how (1) part of India.Per Wanchoo C. J. (Bapna & Dave JJ. concurring; Bhandari J. concurring but on slightly different grounds ; Modi J. concurring with first part only),Per Modi J. (concurring with the first part of the decision but dissenting with the second part which refers to executability of decrees of foreign courts now forming part of the Rajasthan due to reasons being not compelling).

       If a decree was a nullity when it was passed, except in the State which passed it, it cannot become a living and executable decree in the areas of other States which happen to be merged with the State which passed the decree on account of political changes alone. Something more, to my mind, is required to be done by the new State in order to make such decrees, which were a nullity with respect to the areas now merged, to become of full force and effect in those areas. Unless, therefore, there is some compelling reason which makes it incumbent on the courts to say that those decrees are executable, and the objections under sec. 13 of the Code of Civil Procedure can no longer be taken. the courts should not say so. (Paras 9 and 3 8)

       The mere amendment in the definition of the term foreign court in the Civil Procedure Code by Act II of 1951 is not such a compelling reason as to lead the courts to the conclusion that the decrees, which were in-executable incertain areas when they were passed, have become executable now, and the judgment-debtors have no right to raise objections under sec. 13 of the Code of Civil Procedure The right course to adopt is to consider whether the decree was executable in a particular area when it was passed, and the crucial date for this purpose is the date on which the decree was passed, and not the date on which it is being sought to be executed. It necessarily follows that the change in the mere definition of the term foreign court by the Amendment Act No. II of 1951 does not warrant the conclusion that the intention of the legislature was that all such decrees would thereafter be executable in areas where they were not so executable when they were passed. (Para 18)

       In principal it must be admitted that there is no difference whether the foreign court was situated out side the boundaries of the State of Rajasthan, or within those boundaries and if the matter stood merely on principle the decrees of courts in covenanting States also would not be executable beyond the areas of the State in which they were passed. But In this connection) one has to see the laws of the State of Rajasthan also in order to determine whether such decrees are now executable in any part of Rajasthan without the judgment-debtors having the right to arise any objection under sec. 13 This will depend upon the laws, if any, passed by the State of Rajasthan after it came into existence. It cannot; be disputed that if the new State of Rajasthan passed a law by which, the decrees of the various covenanting States became executable throughout the new State, the objection under sec. 13 would not be available to judgment-debtors in such cases. (Para 20)

       The position, so far as those foreign courts are concerned, which are now situate within the boundaries of the State of Rajasthan is that by virtue of Rajasthan High Court Ordinance sec. 49(1), Rajasthan Civil Courts Ordinance sec. 5 and Rajasthan Small Cause Courts Ordinance, sec. 2 decrees of these courts, even if they were foreign courts at the time when the decrees were passed and even if the defendants were nonresident foreigners who had not submitted to their jurisdiction, become the decrees of the present courts of Rajasthan, and are therefore executable without the judgment-debtors having the right to raise an objection under sec. 13 C.P.C. (Para 24)

       Having regard to the nature of such decrees and the basic infirmity which attaches to them, we would be justified in coming to such a conclusion only where the legislature has plainly and in unmistakable terms said so. I am not at all convinced that our own laws speak with that certainly or clarity that we may feel justified in holding that the foreign decrees of States which before merger were foreign but which now have become part of this State must receive effectualness throughout the boundaries of the integrated State, no matter that such decrees were nullities everywhere except in the State where they came to be pronounced in accordance with the law of that State. I am willing to concur in the view that sec. 49 of the Rajasthan High Court Ordinance makes the decrees of the pre-existing High Courts to be the decrees of this High Court but the provisions of Rajasthan Civil Courts Ordinance, sec. 5 and Rajasthan Small Cause Courts Ordinance, s. 2 are very general and ambiguous and I am unable to go so far as to hold on the strength of these provisions that the decrees of the subordinate courts of the former State passed against non resident foreigners at the time they were passed can be considered to be good and effectual throughout the united territory, in the absence of a clear, unambiguous and express provision to that effect, and there is no such legislation, in my opinion, which exists up to the present moment which would justify us in investing such decrees with effectualness outside these former bounds. In other words, I am of opinion that decrees of foreign States which now form part and parcel of the United State can properly be executed in the areas of their original effectiveness and no more. (Paras 8, 10 and 11)