Scope and effect of Article 1, 5 and 261.

The second judgment-debtor is the appellant. The respondent brought an action on 6th February, 1950, in the District Court of Bangalore for recovering a sum of money due to him on dealings. The defendants are residents of Ananthapur. None of them appeared in Bangalore Court to contest the suit with the result that an ex parte decree was obtained on 21st July, 1950, for Rs.19,015-7-6 with subsequent interest and costs. The decree-holder got the decree transferred for execution on 8th January, 1951, to the District Court, Ananthapur, within whose jurisdiction the judgment-debtors reside. In the latter Court the execution sought was by way of attachment and sale of immoveable properties of the defendants) Two notices were taken to the judgment-debtors but they did not choose to appear in Court. The Court held that the service was sufficient and ordered attachment on 5th April, 1951. The properties were attached on 22nd April, 1951 and 24th April, 1951 and sale notice was ordered. At this stage, the appellant filed a petition in the lower Court under section 47, Civil Procedure Code, for dismissal of the execution petition on the ground that the ex parte decree passed by the Bangalore Court against a non-resident foreigner who did not submit to its jurisdiction was a nullity and therefore inexecutable outside the Mysore State. This objection did not find favour with the lower Court which thought that the only remedy which the appellant had was to set aside the decree by appropriate proceedings. In that view the application was dismissed and further execution was ordered. It is that order that is under appeal now.

Mr. Venkatarama Sastri appearing in support of the appeal challenges the correctness of the decision of the District Judge. It is argued by him that the judgment rendered by the Bangalore Court was a foreign judgment within the meaning of section 2(5) of the Code of Civil Procedure. That being so it is a nullity by the International Law and consequently could not be executed outside Mysore State. The foundation of this contention is the definition of a foreign Court as obtaining on the date on which the judgment was entered for the respondent that is 21st July, 1950. Section 2(5), Civil Procedure Code, as it stood prior to Adaptation of Indian Laws Order, 1937, defined a foreign Court as a “Court situate beyond the limits of British India which has no authority in British India and is not established or continued by the Governor-General-in-Council”. The Adaptation of Indian Laws Order, 1937, omitted the words “Governor-General-in-Council” and substituted “the Central Government or the Crown Representative”. By the Indian Independence (Adaptation of Central Acts and Ordinance) Order of 1948 dated 23rd March, 1948, the following changes were introduced: The words “or the Crown representative” at the end were omitted and the word “Provinces” was substituted for “British India” in the section. Section 2(5) ran as follows:-“Foreign Court means a Court situate beyond the limits of the Provinces which has no authority in the Provinces and is not established or continued by the Central Government.”

On the date on which the Constitution came into force, that is 26th January, 1950, the Adaptation of Laws Order, 1950, was issued. By section 4(1) of that Order the word “States” was inserted for the word “Provinces”. By the Civil Procedure Amendment Act II of 1951, this section underwent further changes and the section as amended reads thus:

“‘Foreign Court’ means a Court situate outside India and not established or continued by the authority of the Central Government.”

But this amendment was introduced sometime after the judgment in question was given. According to the definition in force on the relevant date, a “foreign ‘Court” means a Court situate beyond the limits of the States which has no authority in the State and is not established or continued by the Central Government. The “State” in this context refers only t