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PETITIONER: HANSRAJ NATHU RAM

       Vs.

RESPONDENT: LALJI RAJA & SONS OF BANKURA

DATE OF JUDGMENT: 30/04/1962

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. SARKAR, A.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1963 AIR 1180            1963 SCR  Supl. (2) 619  CITATOR INFO :  R          1971 SC 974  (1,14,15,31)

ACT: Execution of Decree-Transfer to a court where Indian Code of Civil  Procedure not extended-If executable-Foreign  decree- Foreigners’  Act, 1946 (31 of 1946), s. 2(a)  (iii)-Code  of Civil Procedure (Act V of 1908), ss. 38, 39, 43, 44.

HEADNOTE: A decree passed in favour of the respondent by a Subordinate judge of West Bengal was transferred for execution on August 28,  1950 to the Court of the Additional District  judge  of Morena in what was originally Gwalior State and subsequently became  a  part of the United States of  Madhya  Bharat  and after the Constitution State of Madhya Bharat.  On the  date when the decree was transferred, the 620 Courts in Madhya Bharat were governed by the Indian Code  of Civil  Procedure  as  adapted by  the  Madhya  Bharat  Adapt action Order of 1948 but the power of transfer by the  Court of Bankura was governed by ss. 38 and 39 of the Indian  Code of Civil Procedure.  On the judgment debtor’s objection  the application  for  execution  was dismissed  but  the  appeal against  that  order  was allowed by the  High  Court.   The appellant contended that the Court had no power to  transfer the decree under s. 38 to the Court in Morena.  The question was  with regard to the applicability of the Indian Code  of Civil Procedure and whether the decree sought to be executed was a decree of a foreign Court or not. Held,  that the Court at Morena not being a court, to  which Indian Civil Procedure Code applied, the decree could not be transferred to it under the Indian Code of Procedure and ss. 38 and 39 were inapplicable to justify such a transfer. The  Indian Civil Procedure Code was not extended to  Madhya Bharat  till  April  1, 1951, by the Act  2  of  1951.   The decrees  of foreign courts were under the Gwalior  Court  of which  Morena was a part, not executable under s. 233  which required a suit to be brought on the basis of foreign decree under not the Madhya Bharat Court of Civil Procedure.

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Held,  further, that the Foreigners Act is not relevant  for the purpose of finding out whether the decree was a  foreign decree or not because the execution of decree is governed by the  provisions  of the Code of Civil Procedure and  not  by Foreigners Act. A section of an enactment has to be interpreted as it is and a Court cannot read it as if its language was different from what it actually is.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 173 of 1956. Appeal from the judgment and order dated November 15,  1954, of the former Madhya Pradesh High Court at Gwalior in C.  F. A. No. 9 of 1951. Ganpat Rai, for the appellant. N. S. Bindra and D. D. Sharma for the respondent.  621 1962.  April 30.  The Judgment of the Court was delivered by KAPUR,  J.-This is an appeal against the judgment and  order of  the  High  Court  of  Madhya  Bharat  at  Gwalior  on  a certificate  of that Court under Art. 133 (1) (c)  and  like Civil  Appeal  No. 24 of 1961, raised the  question  of  the applicability of the Indian Code of Civil Procedure and  the question whether the decree sought to be executed was a dec- ree of a foreign Court or not.  It is a reverse case in  the sense that the decree sought to be executed was passed by  a Court  in West Bedford province of what was  British  India. In  the appeal the appellant is the judgment-debtor and  the decree-holder is the respondent. On  December 3, 1949, a decree was passed in favour  of  the respondent  by the Subordinate Judge, Bankura, in  the  West Bengal and a certificate of transfer was applied for on July 27, 1950, granted on August 8, 1950, and was transferred for execution  On August 28, 1950.  On September 25,  1950,  the decree-holder  took  out  execution  in  the  Court  of  the Additional-  District  Judge, Morena, in  what  was  Gwalior State  and  subsequently became a part of the  United  State named  Madhya Bharat and after the Constitution the  Part  B State of Madhya Bharat.  On the judgment-debtor’s  objection the application for execution was dismissed on December  29, 1950,  but the appeal against that order was allowed by  the High Court on November 15, 1954. It  is  unnecessary to set out the various sections  of  the Indian Code of Civil Procedure or to trace the various steps by which as. 43 and 44 were amended in that Code ;- that  we have  done  in C. A. No. 24 of 1960 decided today.   It  was contended before us by the judgment-debtor that 622 the Court had no power to transfer the decree under s. 38 to the  Court  in  Morena.  On the date  when  the  decree  was transferred the Courts in Madhya Bharat were governed by the Indian  Code  of Civil Procedure as adapted  by  the  Madhya Bharat Adaptation Order of 1948 but the power of transfer by the  Court at Bankura was governed by ss. 38 and 39  of  the Indian Code of Civil Procedure.  Under the Code, the  Court to which the decree could be transferred was one established in  what was British India because the Code extended to  the territories  of what was British India and it was not  till, the  coming into force of Act 11 of 1951 on April  1,  1951, that  the  Indian Code was applied to  the  "Territories  of India" which comprised Parts A, B and C State. It  was  contended  by  Mr. N. S.  Bindra  counsel  for  the respondent  that under ss. 38 and 39 of the Indian  Code  of

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Civil Procedure a decree could be sent for execution to  any Court,  the expression "Court" being understood as  a  place where  justice  was administered and for this  reliance  was placed on Manawala Goundan v. Kumarappa Reddy (1) where  the word  "Court"  in  s. 622 of the  old  Civil  Procedure  was defined as a place where justice is judicially  administered ;  but  that  was in a case where it had  to  be  determined whether  a District Registrar was Court for the  purpose  of Civil Procedure Code.  The definition as given in that  case is not of any help in determining the question now before us because  what we have to see is whether the Court at  Morena even  though it administered justice judicially was  covered by the word "Court" in s. 38 or not.  As we have said  above "Court"  in  the section means a court to which  the  Indian Code   of  Civil  Procedure  applies  and  not  any   Court. Similarly  at  the  relevant time in es. 40 and  42  of  the Indian Code of Civil Procedure "Court" nece- I.   L. R. 30 mad. 326. 623 ssarily  meant a Court to which Indian Civil Procedure  Code applied i. e., a Court in what was British India.  The Court at  Morena  not being such a Court the decree could  not  be transferred  to it under the Indian Code of Civil  Procedure and  ss.  38  and 39 were inapplicable  to  justify  such  a transfer. The  decree, it was then argued, was executable under s.  43 of  the  Indian  Civil  Procedure Code  as  amended  by  the Adaptation  of  Laws  Order  of  June  5,  1950,  which  had retrospective  effect as from January 26, 1950.   After  the amendment that section reads :-               "S 43 Any decree passed-               (a)   by a Civil Court in Part B State, or               (b).....................               (c).....................               may,  if  it  cannot be  executed  within  the               jurisdiction  of  the Court by  which  it  was               passed, be executed in manner herein  provided               within  the jurisdiction of any Court  in  the               States". The argument was that in the present case the expression "in a Part B State, ’should be read as if the expression was "in a  Part A State".  This again is not permissible for  us.  - Section 43 has to be interpreted as it is and a Court cannot read  it  as  if its language was  different  from  what  it actually  is. It is not permissible for this court to  amend the  law as suggested.  Besides the Indian Civil Procedure Code  was not extended to Madhya Bharat till April 1,  1951, by  Act  11 of 1951.  The decrees of  foreign  courts  were, under  the  Gwalior  Code  of  which  Morena  was  a   part, executable neither under s. 233 which required a suit to  be brought on the basis of foreign decrees nor under the Madhya 624 Bharat Code of Civil Procedure.  The decree therefore  could not  be executed in Morena under s.43 of the Indian Code  of Civil Procedure. It  was  next  argued  that the appellant  firm  was  not  a foreigner  because it did not fall under the foreigners  Act (Act  31 of 1946) and reference was made to s. 2 (a.)  (iii) which  was amended by Act 38 of 1947 on December 15, 1947  ; but this Act is not relevant for the purpose of finding  out whether  the decree was a foreign decree or not because  the execution  of decrees is governed by the provisions  of  the Code  of  Civil  Procedure and not by  the  Foreigners  Act. Under  the former a decree can be executed by a Court  which passed  the  decree  or  to which  it  was  transferred  for

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execution  and the decree which could be transferred has  to be a decree passed under the Code and the Court to which  it could be transferred has to be a Court which was governed by the Indian Code of Civil Procedure.  But in the present case it  was not transferred to a Court which at the time of  the transfer was governed by the Indian Code of Civil ,Procedure and  therefore the transfer was ineffective for the  purpose of execution and as we have said above, s. 43 of the  Indian Code was inapplicable before Act 11 of 1951 to the State  of Madhya  Bharat.   It is not necessary to go into  the  other questions  raised  if the above two  questions  are  decided against the respondent. We  therefore allow this appeal, set aside the judgment  and order  of the High Court and restore that of  the  executing court.  The appellant will have its costs in the court. Appeal allowed. 625