JUDGMENT : - On 15-5-1947 Brigadier-General Raj-Rajendra Sardar Maloji Rao Narsingh Rao Shitole instituted a suit in the Court of the District Judge of Gwalior for the recovery of a sum of Rs.6,92,236-15-0. It was alleged that the late Munshi Iswar Saran of Allahabad had been his agent for a certain purpose and had died without rendering account. His three sons were impleaded as defendants and a decree for the above sum was sought against them. Summonses were served on the defendants on 18-11-1947, but none of them put in appearance in the Gwalior court. An ex parte decree was passed against them on 18-11-1948.

2. On 14-9-1951 the District Judge of Gwalior transferred the decree to the District Judge of Allahabad for execution. On 16-10-1951 an execution application was presented in the court of the Civil Judge at Allahabad for the recovery of a sum of Rs.8,98,257-7-0 by attachment and sale of certain items of immoveable property situate at Allahabad.

3. The defendants filed an objection on 8-2-1952 in the court of the Civil Judge at Allahabad. They contended that the court of the District Judge of Gwalior was a "foreign court" and its Judgment was a "foreign judgment". They pleaded that they had never submitted to the jurisdiction of the District Judge of Gwalior and the said judge was therefore not competent to pass a decree against them and the decree was consequently not executable. Lastly, it was pleaded that the property sought to be attached did not form part of the assets of the late Munshi Iswar Saran.

4. With the consent of the parties, the execution case, including the objection filed by the judgment-debtors, was transferred to this Court under S.24, Civil P.C.

5. The following issues were framed:

1. Whether the court of the District Judge of Gwalior was a foreign court

(a) on the date of the institution of the suit, or

(b) on the date of the decree.

2. If the aforesaid court is held to be a foreign court, did the defendants submit to the jurisdiction of that court? If not, is the decree binding on them?

3. Whether the decree passed by the District Judge of Gwalior on 18-11-1948 is executable in Uttar Pradesh?

4. Whether the properties sought to be attached form part of the assets of the late Munshi Iswar Saran?"

FINDINGS

6. Issue No.1: Section 2(6), Civil P.C. defines "foreign judgment" as the "judgment of a foreign court". This, definition has remained unaltered at all material times but it is noteworthy that the meaning of the term "foreign court" which forms a component part of this definition has undergone changes from time to time. This term, i.e. "foreign court" has had no less than four different definitions from the date of the suit till now. It is, therefore, necessary to examine all these definitions.

It is true that, for the purposes of deciding this issue, the first two definitions only need be considered. But, in order to appreciate the arguments advanced by the learned counsel on either side on other issues, it will be necessary to refer to the third and the fourth definitions also. Consequently, I propose to scrutinise and examine all the four definitions.

7. The definition of the term "foreign court" is contained in S.2(5), Civil P.C. This definition stood, on the date of the suit, as follows.

" foreign court means a court situate beyond the limits of British India which has no authority in British India and is not established or continued by the Central Government or the Crown Representative."

8. In order to fully understand this definition, it is necessary to form an idea as to what British India was at that time. The definition of this term, i.e. "British India" is contained in S.3(5) General Clauses Act (10 of 1897). For different periods the term "British India" meant different territories. For the period commencing from 1-4-1937, and ending with 14-8-1947, the term "British India" meant "All territories for the time being comprised within the Governors Provinces and the Chief Commissioners Provinces."

Sectio

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