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PETITIONER: LALJI RAJA & SONS.

       Vs.

RESPONDENT: FIRM HANSRAJ NATHURAM

DATE OF JUDGMENT23/02/1971

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. BHARGAVA, VISHISHTHA SIKRI, S.M. (CJ) MITTER, G.K. REDDY, P. JAGANMOHAN

CITATION:  1971 AIR  974            1971 SCR  (3) 815  1971 SCC  (1) 721  CITATOR INFO :  F          1977 SC 164  (9)  R          1980 SC 101  (3)  RF         1989 SC1614  (14)  R          1991 SC2156  (10)

ACT: Code of Civil Procedure, 1908, ss. 2(5), 2(12), 20, 38,  39, 40  48-Code of Civil Procedure (Amendment) Act, 1950 (Act  2 of  1951),  s.  20(1) (b)-Decree passed under  Code  can  be transferred  to any court governed by Code-Court  in  Madhya Bharat  not  governed by Code prior to passing of Act  2  of 1951-Transfer  of  decree from West Bengal Court  to  Madhya Bharat  Court while invalid before passing of Act 2 of  1951 could  be  validly made thereafter-Foreign  Court,  ’Foreign Decree’,   meaning   of-Foreign  Decree  when   a   nullity- Privileges’  and ’rights’ when protected under s. 20(1)  (b) of Act 2 of 1951-Limitation for Execution Section 48 whether provides a bar or period of limitation.

HEADNOTE: The  appellants obtained a decree against the respondent  in the court of Sub-Judge, Bankura (West Bengal) on December 3, 1949.   On  March 28, 1950 they applied to the  court  which passed the decree to transfer the decree with a  certificate of non-satisfaction of the court at Morgan in the then State of Madhya Bharat.  It was ordered accordingly.  The Judgment debtors  resisted the execute on the ground that  the  court had  no jurisdiction to execute the same as the  decree  was that  of a foreign court and that the same had  been  passed ex-parte.  The court accepted that contention and  dismissed the  execution  petition on December 29, 1950.  On  April  , 1951  the Code of Civil Procedure (Amendment) Act 2 of  1951 came  into force.  By this Act the Code was extended to  the former  State  of  Madhya Bharat as well  as  various  other places.  Meanwhile the appellants appealed against the order of  the  Additional  District Judge  Morena  dismissing  the execution petition to the High Court of Madhya pradesh.  The appeal was allowed.  In further appeal this Court  ’restored the order of the Addl.  District Judge, Morena.   Thereafter

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on February 15, 1963 the appellants filed another  execution case  before the Bankura Court praying for the  transfer  of the decree to the Molrena Court for execution.  The  Bankura Court again ordered the transfer of the decree of the Morena Court.   The  judgment  debtors  resisted  execute  on   the flowing  grounds : (1) that it was barred by yes  judicature in view of the aforesaid decision of this Court; (2) that it was barred by s. 48 of the Code of Civil Procedure; (3) that it  was  barred  by  limitation and  (4)  that  it  was  not executable  because  it was the decree of a  foreign  court. The Addl.  District Judge rejected the objections.  The High Court  in  appeal agreed with the executing court  that  the execution petition was neiber barred by resjudicata nor  was there any bar of limitation but it disagreed with that court and  held  that the decree was not executable as  the  court which  passed  the decree was a foreign court.   The  decree holders  filed  the present appeal by  special  leave.   The questions  which fell for consideration were :  (i)  whether the  decree  under execution was not  executable  by  courts situate in the area comprised in the former State of  Madhya Bharat; (ii) whether the decree was barred by s. 48 of the Code. HELD:Per  Sikri C.J., Mitter, Hyde and Bhargava JJ. (1)  (a) On  the  date  when the decree under  execution  was  passed foreign court’ was 8-1 100 SupCII71 816 defined in s. 2(5) of the Code as a court situate beyond the limits  of British India which had no authority  in  British India  and was not established or continued by  the  Central Government.   After  the  amendment of  the  Code  of  Civil Procedure  in 1951.  ’foreign court’ under the Code means  a court situate outside India and not established or continued by the authority of the Central Government.  Whether we take the earlier definition or the present definition the Bankura Court could not be considered as a foreign court within  the meaning of that expression in the Code.  ’Foreign  judgment’ is defined as the ’judgment of a foreign court’.  Hence  the decree under execution could not be considered as a  foreign decree for the purpose of the Code. [820 D-G] Accordingly the judgment-debtors could not take advantage of the  provision in s. 13(b) of the Code under which  the  ex- parte  decree  of a foreign court is  not  conclusive.   Nor could  they  take advantage of s. 13(d).  They  were  served with notice of suit but did not choose to appear before  the court.   Hence, there was Po basis for the  contention  that any  principle  of  natural justice  has  been  contravened. Further s. 13(d) was not applicable because the judgment  in question was not a foreign judgment. [821 D] (b)  Under  Private International Law a decree passed  by  a foreign  court to whose juri diction a  judgment-debtor  had not  submitted  is  an absolute nullity only  if  the  local legislature  had not conferred jurisdiction on the  domestic courts over the foreigners either generally or in  specified circumstances.   Clause  (c) of s. 20 of the  Code  provides that  subject  to the limitations mentioned in  the  earlier sections  of  the Code a suit can be instituted in  a  court within  the local limits of whose jurisdiction the cause  of action  wholly or in part, arises.  This  provision  confers jurisdiction  on a court in India over foreigners  when  the cause  of action arises within its jurisdiction.  There  was not dispute in the present case that the cause of action for the  suit which led up to the decree under  execution  arose within  the  jurisdict on of the Bankura Court.   Hence,  it must  be  held  that  the  suit  in  question  was  properly

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instituted.  Accordingly the decree in question was a  valid decree though it might not have been executable at one stage in courts in the former Indian States [822 B-F] Sardar Gurdyal Singh v. The Rajah of Faridkot, 21 I.A.  171, referred to. (c)  A  combined reading of ss. 2(12), 38, 39 and 40 of  the Code  shows that a decree can be transferred  for  execution only  to a court to which the Code apple . This is what  was ruled by this Court in Hansraj Nathu Ram’s case.  But by the date the transfer in the present case was made, the Code had been  extended to the whole of India.  It followed that  the transfer  of the decree in question which was not a  foreign decree,  to  the Morena Court, was in  accordance  with  the provisions of the Code. [823 B-D] Hansraj Nathu Ram v. Lalii Raja & Sons of Bankura, [1963]  2 S.C.R. 619, applied. Narsingh Rao Shitole v. Shri Shankar Saran & Ors., [1963]  2 S.C.R. 577, distinguished. (d)  Section  20(1)(b)  of  the  Code  of  Civil   Procedure Amendment Act, 1951 by which the Code was extended to Madhya Bharat  and  other  areas  undoubtedly  protects  the  right acquired  and privileges accrued under the law  repealed  by the amending Act.  But even by straining the language of the provision  it cannot be said that the  non-executabilitv  of the decree within a particular territory can be considered a privilege [824 E-F]                             817 Nor  is it a ’right accrued’ within the meaning of s.  20(1) (b)  of the Code of Civil Procedure (Amendment)  Act,  1950. In  the  first  peace in order to get the  benefit  of  this provision  the  non-executability of the decree  must  be  a right, and secondly it must be a right that had accrued from the  provisions  of the repealed law.  It Was  difficult  to consider  the  non-executability  of the  decree  in  Madhya Bharat as a vested right of the judgment debtors.  The  non- executability  in question pertained to the jurisdiction  of certain  courts  and  not to the  "rights  of  the  judgment debtors.   Further  the relevant provision of  the  Code  of Civil Proedue in force in Madhya Bharat did not confer  the, right  claimed  by  the  judgment  debtors.   All  that  had happened  in view of the extension of +he Code to the  whole of India in 1951 was that the decrees which could have  been executed  only  by  courts  in  British  India  were   made’ executable  in the whole of India.  The change made was  one relating to procedure and jury diction.  By the extension of the Code to Madhya Bharat, want of jurisdiction on the  part of  the  Morena Court was remedied and that  court  was  now competent to execute the decree [825 A-E] Hamilton  Gell v. White [1922] 2 K.B 422, Abbot v.  Minister for  Lands,  [1895] A.C. 425 and G.  Ogden  Industries  Pvt. Ltd. v. Lucas, [1969] 1 All E.R. 121, applied. (ii)The  execution  was  also not barred, by s.  48  of  the Cod-.. For considering the true impact of cl. (b) of  sub-s. 2  of s. 48 of the Code provisions of Arts. 181 and  182  of the  Limitation  Act,  1908  have  also  to  be  taken  into consideration.  These provisions clearly go to indicate that the period prescribed under s. 48(1) of the Code is a period of  limitation.  This interpretation is strengthened by  the subsequent  history of the legislation.  By  the  Limitation Act, 1963 s. 48 of the Code is deleted.  It-, place has  not been taken by Art. 136 of the Limtation Act of 1963 The High Courts  also  are now unanimous that s. 48 of tile  (ode  is controlled  by the provisions of the Limitation  Act,  1908. [828 A-C] Kandaswami  Pillai v. Kamappa Chetty, A-I-R,  1952 Mad.  186

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(F.B.), Durg v. Poncham, I.L.R. [1939] All. 647, Sitaram  v. Chunnilalsa, I.L.R. [1944] Nag. 250, Amarendra v.  Manindra, A.I.R.’1955 Cal. 269, Krishna Chandra v Parovatamma,  A.I.R. 1953 Orissa 13 and Ramgopal v. Sidram, A.I.R. 1943 Bom.  164 referred to. Per  Jaganmohan  Reddy, J.-(Concurring) No  question  of  ’a vested  right or privilege arose to entitle the  respondent to  challenge  execution proceedings in Morena  Court.   The decree  granted by the Bankura Court was executable  by  the Courts governed by the same Code, by talk Court which passed it  or  by the Court to which it was transferred.   One  the Code was made applicable to the whole of India by  Amendment Act 11 of 1951 the decree was no longer a foreign decree qua the  Morena Court which was a court under the Code to  which the  Bankura Court could transfer the decree for  execution. No  doubt in’ Shitole’s case it was observed that s.  13  of the   Code  creates  substantive  rights  and   not   merely procedural  and  therefore defenses that were  open  to  the resno-dents  were  not  taken  away  by  any  constitutional changes, but the ratio of the decision was that the  Gwalior Court  not  being a court that passed the decree  after  the coming  into  force of Act 11 of 1951  the  Allahabad  Court could  not execute it.  The impediment did not exist now  in that the Bankura Court bad transferred the decree to a court under  the  Code. the plea that s. 48 Civil  Procedure  Code presents a bar of limitation was also not tenable. [831 F-H] 818 Kishendas  v. Indo-Carnatic Bank Ltd.  A.I.R. 1958 A.P.  407 Sardar Gurdayal Singh V. Raja of Firidkote, 21 I.A. 171, Rai Rajendra Sardar Maloji Narsingh Rao Shirole v. Shri  Shankar Saran, [1963] 2 S.C.R. 577 and Hansaj Nathuram Y. Lalji Raja JUDGMENT:

& CIVIL  APPELLATE       JURISDICTION: Civil Appeal  No.  2427 of1966. Appeal  by special leave from the judgment and  order  dated August  27, 1964 of the Madhya Pradesh High Court  in  Misc. Appeal No. 20 of 1964. S.   C. Majumdar and R. K. fain, for the appellant. W.   S. Barlingay, Ramesh Mali and Ganpat Rai, for the respondent. The Judgment of S, M. SIKRI, C.J., G. K. MITTER, K. S. HEGDE and V. BHARGAVA, JJ. was delivered by HEGDE, J. P. JAGAMOHAN REDDY, J. gave a separate Opinion: Hegde,  J. This is an execution appeal.  The  decree-holders are  the  appellants  herein.   This case  has  a  long  and chequered  history.   The decree-holders obtained  a  decree against  the respondents in the court of Sub-Judge,  Bankura (West Bengal) for a sum of over Rs. 12,000/-, on December 3, 1949.   On  March 28, 1950 they applied to the  court  which passed  the  decree to transfer the decree together  with  a certificate  of non-satisfaction to the court at  Morena  in the then Madhya Bharat State for execution.  It was  ordered accordingly..  The  execution proceedings commenced  in  the court  of Additional District Judge at Morena  on  September 21,  1950  (Money  Execution  Case  No.  8  of  1950).   The judgment-debtors  resisted the execution on the ground  that the  court  had no jurisdiction to execute the same  as  the decree  was  that of a foreign court and that the  same  had been passed exparte.  The court accepted that contention and dismissed  the execution petition on December 29, 1950.   On April  1, 1951 the Code of Civil Procedure (Amendment)  Act,

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(Act  11 of 1951) came into force.  As a result of that  the Code  of Civil Procedure (in short the ’Code’) was  extended to  the former State of Madhya Bharat as well as to  various other places.  Meanwhile the decree-holders appealed against the  order of the learned Additional District Judge,  Morena dismissing  the  execution petition, to the  High  Court  of Madhya Pradesh.  The Madhya Pradesh High Court allowed their appeal.   As against that the judgment debtors  appealed  to this Court.  This Court allowed the appeal of the  judgment- debtors  and restored the order of the learned  Additional District  Judge,,  ’Morena.  The decision of this  Court  is reported  in  Hansraj  Nathu Ram v. Lalji Raj  and  sons  of Bankura(1).   Therein  this Court ruled  that  the  transfer ordered by (1)  [1963] 2 S.C.R. 619.                             819 the  Bankura court was without jurisdiction as on that  date ’the  Code’ did not apply to the Morena court..  This  Court held  that  Morena court not being a court  to  which the, Code’ apple, the decree could not have been transport to  it It  further  bed that ss. 38 and 39 of ’the  Code’  did  not afford  jurisdiction for such a transfer.  It may  be  noted that  at the time the Bankura Court ordered the transfer  of the decree, the Morena court was governed by the Indian Code of   Civil  Procedure  as  adapted  by  the  Madhya   Bharat Adaptation Order, 1948.  In other words it was governed  ’by a law passed by the then Madhya Bharat State.  In the course of its judgment this Court observed that under ’the Code’  " a decree can be executed by a court which passed the  decree or  to which it was transport for executing 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".   The first stage of the  execution  proceedings came  to  an end by the decision of this Court  rendered  on April 30, 1962. On February 15, 1963, the decree holders filed another  exe- cution  case before the Bankura court.  Therein they  prayed for the transfer of the decree again to the Morena court for execution.  As noticed earlier, by that time ’the Code’  had been extended to the Madhya Bharat State which had become  a part  of  the State of Madhya Pradesh.   The  Bankura  court again  ordered  the  mans fer of the decree  to  the  Morena court.  The execution proceedings were started afresh in the Morena  court  on August 31, 1963 (Execution Case No.  1  of 1963).  The judgment-debt- resisted the execution on various grounds  viz. (a) that it is barred by res-judicata in  view of the decision of this Court referred to earlier-, (b) that it  is  barred  by s. 48. of ’the.  Code’; (c)  that  it  is barred  by  limitation;  and  (d) that  the  decree  is  not executable as it is a decree of a foreign court.  The   learned  Additional  District  Judge   rejected   the objections  raised by the judgment-debtors.   The  judgment- debtors  appealed  against that order to the High  Court  of Madhva  Pradesh.  The High Court agreed with  the  executing court that the execution petition is neither barred by  res- judicata nor by s. 48 of "the Code’, nor is there any bar of limitation.but  it disagreed with that court and  held  that the decree was not evecutable as the court which passed  the decree was a foreign court.  In arriving at that  conclusion it  purported to rely on the decision of this Court  in  Rai Rajendra  Sardar  Maloji  Narsingh Rao  Shitole  v.  v.  Sri Shankar- Saran and Ors..(1). Aggrieved by that decision  the decree-holders have brought this appeal by special leave. From the contentions advanced before us, two questions arise

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1.   [1963]2 S.C.R. 577. 820 for  decision.   They  are  (1)  whether  the  decree  under execution  is not executable by courts situate in  the  area comprised  in  the  former State of Madhya  Bharat  and  (2) whether the decree is barred by S. 48 of ’the Code’. The  contention of the Judgment-debtors is that  the  decree under  execution  being  a decree of a foreign  court  is  a nullity qua the courts in the former State, of Madhya Bharat and  therefore  the  same is not executable  in  the  Morena court.   According  to  the  decree-holders  the  decree  in question is not a decree of a foreign court as  contemplated by   ’the  Code’  and  the  court  -to  which   the   decree is  transferred for execution namely the Morena court  is  a ’court’ ascontemplated  by ss. 38 and 39 of ’the  Code’ and therefore therecan   be  no  valid  objection  to   its execution  in  the Morena court.  Before  referring  to  the decided  cases  on  the point it is necessary  to  read  the relevant provisions of ’the Code’ as the execution is sought in accordance with the provisions therein. ’Foreign  Court is defined in s. 2(5) of ’the  Code’.   That definition  as  it  stood  on  the  date  the  decree  under execution was passed read thus "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.", A new definition  of  foreign court" was substituted by  the Code  of  Civil Prcedure (Amendment) Act 11 of  1951.   That definition reads "foreign court" means a court situate outside India and  not established  or  continued by the authority of  the  Central Government". Whether  we  take  the earlier  definition  or  the  present definition  into consideration the Bankura court, cannot  be considered as a "foreign court" within ’the meaning of  that expression  in ’the Code’.  Foreign judgment is  defined  in ’the Code’ as the judgment of ’a foreign court’. (S. 2(6) of ’the  Code’).   Hence the decree under execution  cannot  be considered as a foreign decree for the purpose of the Code. Section  13 of ’the Code’ provides that "A foreign  judgment shall  be  conclusive  as to  any  matter  thereby  directly adjudicated  upon  between  the  same  parties  or,  between parties  under  whom they or any of  them  claim  litigating under the same title except (b) where it hasnot,  been  given on the merits  of  the case."                             821 The judgment with which we are concerned in this case was an ex-parse  judgment.  The Bankura court had  no  jurisdiction over  the  judgment-debtors.  The Judgment-debtors  did  not submit  themselves to the jurisdiction of that court  though they  were served with a notice of the suit.  Hence  if  the Bankura  court can be considered as a foreign court then  s, 13(b) would have come to the rescue of the  Judgment-debtors and it would have enabled them to pread that the judgment in question  was not conclusive and consequenty the  decree  is not  binding against them.  But as the judgment in  question cannot be considered as a judgment of a foreign court,  they can  take no assistance from s. 13(b).  But  assistance  was sought to be taken from s. 13(d) which says that the foreign judgments are not conclusive "where the proceedings in which the  judgment was obtained are opposed to natural  justice". It  was urged on behalf of the judgmentdebtors that  as  the decree under execution was an ex-parte decree, we must  hold

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that the proceedings in which the judgment was obtained were opposed to natural justice.  We are unable to accede to this contention.  As mentioned earlier, the judgment-debtors were served with the notice of the suit.  They did not choose  to appear  before  the court, Hence there is no basis  for  the contention  that any principle of natural justice  had  been contravened.   Further  as  held  earlier  the  judgment  in question is not a foreign judgment. Reliance was placed on Private International Law in  support of  the contention that in a personal action, a decree  pro- nounced in absentee by a foreign court, to the  jurisdiction of which the defendant had not in any way submitted  himself is an absolute nudity.  It was urged that the Bankura  court had no jurisdiction over the judgment-debtors and  therefore the  decree  passed being one pronounced in  absentem  is  a nullity.  In support of this contention reliance was  placed on the decision of the Judicial Committee in Sirdar  Gurdval Singh  v. The Rajah of Faridkote(1).  Therein  the  Judicial Committee observed               "In a personal action, to which none of  these               causes   of  jurisdiction  apply,   a   decree               pronounced in absentem by a foreign Court,  to               the  jurisdiction of which the  Defendant  has               not  in  any  way  submitted  himself,  is  by               international law an absolute nullity."               But the Board qualified those observations  by               the following words :               "He is under no obligation of any kind to obey               it; and it must be regarded as a mere  nullity               by the Courts               (1).  21 I.A. 171.               822               of  every  nation except (when  authorised  by               special  local legislation) in the country  of               the forum by which it was pronounced." The  above remarks of the Board indicate that even a  decree which is pronounced in absentem by a foreign court is  valid and  executable in the country of the forum by which it  was pronounced when authorised by special local legislation.   A decree  passed by’ a foreign court to whose  jurisdiction  a judgment-debtor  had not submitted is an  absolute  nullity only  if  the  local  legislature  had  not  conferred  upon jurisdiction  on  the domestic courts  over  the  foreigners either generally or under specified circumstances.   Section 20(c) of ’the Code’ confers jurisdiction on a court in India over the foreigners if the cause of action arises within the jurisdiction  of that court.  Hence the observation  of  the Board quoted in some of the decisions of the courts in India including  the decision of this Court in  Shitole’s  case(1) that  such  a  decree is an absolute  nullity’  may  not  be apposite.  It may be more appropriate to say that the decree in  question  is  not  executable  in  courts  outside  this country.   The  board itself had noticed that this  rule  of Private  International  law  is  subject  to  special  local legislation.  Clause (c) of s. 20 of ’the Code’ provided  at the  relevant  time and still provides that subject  to  the limitations mentioned in the earlier sections of ’the Code’, a suit can be instituted in a court within the local  limits of  whose  jurisdiction the cause of action.  wholly  or  in part,  arises.   There is no dispute in this case  that  the cause  of  action for the suit which led up  to  the  decree under  execution  arose within the jurisdiction  of  Bankura court.  Hence it must be held that the suit in question  was a  properly instituted suit.  From that it follows that  the decree  in  question is a valid decree though it  might  not

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have  been executable at one stage in courts in  the  former Indian States. This  takes us to ss. 38 and 39 of ’the Code’.   Section  38 provides  that a decree may be executed either by the  court which  passed  it, or by the court to which it is  sent  for execution.   Section 39(1) to the extent it is material  for our present purpose prescribes               "The  Court which passed a decree may, on  the               application of the decree-holder, send it  for               execution to another Court-               (a)   if the person against whom the decree is               passed  actually  and voluntarily  resides  or               carries  on business, or personally works  for               gain   within   the  local   limits   of   the               jurisdiction of such other Court........ (1)  [1963] 2 S.C.R. 577.                             823 Section 40 prescribes "Where  a decree is sent for execution in another State,  it shall  be sent to such Court and executed in such manner  as may be prescribed by rules in force in that State." Rules  are  defined in s. 2(12) as meaning Rules  and  Forms contained in the 1st Schedule or made under s. 122 or s. 125 of  ’the Code’.  On a combined reading of ss. 2(12), 33,  39 and  40,  it follows that a decree can  be  transferred  for execution only to a court to which ’the Code’ applies.  This is  what  was ruled by this Court in Hansraj  Nathu  Ram  v. Lalji  Raja  and sonw cf Bankura(1).  But by  the  date  the impugned transfer was made, ’the Code’ had been extended  to the  whole of India.  In fact the court to which the  decree was  transferred is now an entirely new court in the eye  of the Iaw-see the decision of this Court in Shitole’s case(2). From  the foregoing discussion., it follows that the  decree under execution is not a foreign decree and its transfer  to the Morena court is in accordance with the provisions of the Code’.  That being so, the decree under execution  satisfies the dictum of this Court in Hansraj Nathu Ram v. Lalji  Raja and sons(1) that "a decree can be executed by a court  which passed  the  decree  or  to which  it  was  transferred  for 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." It  was next urged on behalf of the judgment-debtor that  in view of the decision of this Court in Shitole’s cave (supra) we must hold that the decree is a nullity and that it cannot be executed at all in the courts situate in the former State of Madhya Bharat.  In Shitole’s case (sunra) this Court  was called upon to consider a converse case.  Therein the decree under  execution was one passed by a court in Gwalior  State in  a suit instituted in May 1947.  The defendants were  the residents  of  U.P. They did not appeal before  the  Gwalior court though served with the notice.  An ex-parte decree was passed against them in November, 1948.  On September,  1951, the  Gwalior court transferred the decree for  execution  to Allahabad  and on October 16. 1951, the decree-holder  filed an  application  for  execution of  the  decree  before  the Allahabad  Court.   The judgmentdebtors contended  that  the decree being a decree of foreign court to whose jurisdiction they  had  not submitted, was a mullity  and  the  execution application  in respect thereof was not  majntanable.   That contention was accented by this Court.  It may be noted that the Gwalior Court was not a court constituted under the (1) [1963]2 S.C.R. 619. (2) [1963]2 S.C.R. 577.

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824 provisions of ’the Code’.  It was admittedly a foreign court for  the  purpose of any proceedings under the  Code’.   The ratio of that decision is wholly inapplicable to the present case.  The question whether a decree is a foreign decree  or whether it can be transferred to another court for execution has to be judged by the provisions of ’the, Code’. It was’ next contended that in view of S. 20 cl. (b) of ’the Code’ of Civil Procedure (Amendment) Act, 1951 by which  the Code is extneded to Madhya Bharat and other areas, the judg- ment-debtors’ right to resist the execution of the decree is protected.  Section 20(1) of the Act deals with Repeals  and Savings.   That  section  to the  extent  relevant  for  our present purpose reads :               "If, immediately before the date on which  the               said Code comes into force in any part B State               corresponding to the said Code, that law shall               on that date stand repealed.               Provided that the repeal shall not affiec               (b)   any  right,  privilege,  obligation   or               liability acquired, accrued or incurred  under               any    law   so    repealed...................               ;................ as if this Act had not  been               passed. This provisions undoubtedly protects the rights acquired and privileges  accrued under the law repealed by  the  amending Act.   Therefore  the question for decision is  whether  the non-executability  of the decree in the Morena  court  under the  law in force in Madhya Bharat before the  extension  of ’the  Code’  can  be said to be a right  accrued  under  the repealed  law.  We do not think that even by  straining  the language  of  the  provision it can be said  that  the  non- executabity of a decree within a particular territory can be considered as a privilege.  Therefore the only question that we  have  to consider is whether it can be considered  as  a ’right  accrued’ within the meaning of s. 20(1) (b)  of  the Code of Civil Procedure (Amendment) Act, 1950.  In the first place,  in order to get the ’benefit of that provision,  the noli-executability  of  the  decree  must  be  a  right  and secondly  it  must  be a right that  had  accrued  from  the provisions  of the repealed law. It is contended on  behalf of  the  judjment-debtors that when the decree  was  passed, they  had a right to resist the execution of the  decree  in Madhya  Bharat in view of the provisions of the Indian  Code of  Civil Procedure (as adapted) which was in force  in  the Madhya  Bharat at that time and the same is a vested  right. It  was  further  urged  on  their  behalf  that  right  was preserved by S.     20  (1  )  (b)  of  the  Code  of  Civil Procedure Amendment Act,                             825 1950.  It is difficult to’ consider the non-executability of the  decree  in  Madhya  Bharat as a  vested  right  of  the judgmentdebtors.  The non-executability in question pertains to the jurisdiction of certain courts and not to the  rights of the judgmentdebtors.  Further the relevant provisions  of the  Civil Procedure Code in force in Madhya Bharat did  not confer the right claimed by the judgment-debtors.  All  that has  happened in view of the extension of ’the Code’ to  the whole  of lndia in 1951 is that the decree which could  have been  executed only by courts in British India are pow  made executable  in the whole of India.  The change made  is  one relating  to procedure and Jurisdiction.  Even  before  ’the Code’  was extended to Madhay Bharat the dccree in  question could  have been executed either against, the person of  the judgment-debtors  if  they hid happened to come  to  British

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India or against any of their properties situate in British India.   The  execution of the decree within  the  State  of Madhya  Bharat was not Permissible because the arm  of  ’the Code’ did not reach Madhya Bharat.  It was the invalidity of the  order transferring the decree to the Morena court  that stood  in the way of the decree-holders in  executing  their decree in that court on the earlier occasion and not because of  any vested rights of the judgment-debtors.  Even if  the judgment-debtors  had not objected to the execution  of  the decree,  the same could not have been executed by the  court at  Morena  on the previous occasion as that court  was  not promly  seized  of  the execution  ,  proceedings.   By  the extension   of  ’the  Code’  to  Madhya  Bharat,   want   of jurisdiction  on the part of the Morena court  was  remedied and that court is now made competent to execute the decree.’ That  a  provision  to preserve the right  accrued  under  a repealed  Act  "was not intended to  preserve  the  abstract rights conferred by the repealed Act .... It only applies to specific rights given to an individual upon happening of one or  the other of the events specified in statute  case  Lord Atkins’ observations in Hamilton Gell v. White(1).  The mere right.  existing at the date of repealing statute;  to  take advantage  of  provisions of the statute repealed is  not  a "right  accrued"  within  the meaning of  the  usual  saving clause-see  Abbot  v. Minister for lands (2 ) and  G.  Ogden Industries Pty.  Ltd. v. Lucas(3). From  what  has been said above, it follows  that  the  view taken  by  the High Court that the decree in question  is  a nullity qua the Morena court cannot be accented as  correct. The  decree  in question is neither a  ’foreign  decree’  as contemplated  by ’the Code’ nor its transfer to  the  Morena court impermissible under ’the Code’.  By the provisions  of ’the Code’ the Morena court is re- (1) [1922] 2 K.B. 422.                 (2) [1895] A.C. 425. (3) [1969] 1 All E. Report 121. 826 quired  to  proceed with the execution unless there  is  any valid objection. We now come to the question whether the execution is  barred by S. 48 of ’the Code. (That section was repeated in  1963). Both  the  executing court as well as the  High  Court  have taken  the  view  that  on  the  facts  of  this  case,  the limitation  prescribed  in s. 48 of ’the  Co&’  is  extended under  S.  14(2) of the Limitation Act,  1908.   Both  those courts  have  concurrently come to the conclusion  that  the previous  execution proceedings had been prosecuted  by  the decree-holders  with due diligence and with good  faith  and the  same, became infructuous in view of the fact  that  the Morena court had no jurisdiction to proceed with the  execu- tion.   The finding that the previous execution  proceedings were  carried on with due diligence and good faith and  that the same became infructuous for want of jurisdiction on  the part of the Morena court was not challenged before us.   But it  was urged on behalf of the judgment-debtors that  S.  48 prescribed  a  bar  and  not  a  period  of  limitation  and consequently  the decree-holders cannot take the benefit  of S. 14(2) of the Limitation Act.  It is necessary to  examine the correctness of this contention. Section 48 read thus               "(1) Where an application to execute a  decree               not being a decree grantincg an injunction has               been  made, no order for the execution of  the               same  decree  shall  be made  upon  any  fresh               application presented after the expiration  of               12 years from-

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             (a)   the  date  of the decree  sought  to  be               executed or               (b)   where the decree or any subsequent order               directs  any payment of money or the  delivery               of  any property to be made at a certain  date               or  at  recurring  periods, the  date  of  the               default  in making the payment or delivery  in               respect  of  which  the  applicant  seeks   to               execute the decree.               (2)   Nothing in this section shall be deemed-               (a)   to preclude the Court from ordering  the               execution  of  a decree  upon  an  application               presented  after  the expiration of  the  said               term  of  twelve years,  where  the  judgment-               debtor  has, by fraud or force, prevented  the               execution  of the decree at some  time  within               twelve  years immediately before the  date  of               the application; or               (b)   to   limit  or  otherwise   affect   the               operation of article 183 of the First Schedule               to the Indian Limitation Act, 1908".                             827 Art. 18 3 of the Indian Limitation Act, 1908 read thus ------------------------------------------------------------ "Description of application.  Period  of   Time  from  which period                                Limitationbegins     to run. ------------------------------------------------------------- To enforce a judgment, decree Tweleve  years When a  present right to enor order of any Court established force       the judgment, decree or by Royal Charter in the exercise   order accrues   to   some   person  of   its   ordinary   origiial civilcapable of releasing,the right. jurisdiction or an order of the Provided  ’that when the Supreme Court.judgment,  decree  or order has been revived, or some part of the principle  money secured  thereby  or some interest on such  money  has  been paid,  or some acknowledgment of the right thereto has  been given  in  writing signed by the person liable to  pay  such principal  or interest or his agent, to the person  entitled thereto  or  his agent, the twelve years shall  be  computed from the date of such revivor, payment or acknowledgment  or the latest of such revivors payments or acknowledgments,  as the case may be. At  this stage it is also necessary to read Art. 181 of  the Limitation  Act  of  1908.   That  Art  prescribed  that  an application  for which no period of limitation  is  provided elsewhere  in the Sch. to the Limitation Act, 1908 or by  s. 48 of the Code, the period of Limitation is three years  and that  period begins to run when the right to apply  accrues. Art.  182 of that Act provided that for the execution  of  a decree  or  order  of any Civil Court not  provided  for  by article  183 or by s. 48 of ’the Code’, the period of  limi- tation  is  three  years or where a certified  copy  of  the decree  or  order has been registered-six years.   The  time from  which  the  period was to run is set out  in  the  3rd column of the Sch. The  argument advanced on behalf of the judgment-debtors  is that  s.  48  is  a  self-containecr  Code  and  the  period prescribed  therein is a bar and not a period of  limitation and  hence the decree-holders cannot take the benefit of  s. 14(2).   In support of this argument reliance is  placed  on sub-s.  2  (a)  of s. 48 of ’the  Code’.   That  sub-section undoubtedly  lends  some support to the  contention  of  the judgment-debtors.   It  indicates  as  to  when  the  period

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prescribed  under s. 48(1) can be extended.  By  implication it can be urged that the period prescribed under s. 48(1) of the  Code  can  only be  extended  under  the  circumstances mentioned  in  that  clause  and  not  otherwise.   But   in assessing the correct- 828 ness  of that contention we have to take into  consideration cl. (b) of sub-s. (2) of s. 48 of the Code’ as well as Arts. 181  and 182 of the Limitation Act, 1908.  These  provisions clearly  go to indicate that the period prescribed under  S. 48(1)  of  ’the  Code’  is a  period  of  limitation.   This conclusion of ours is strengthened by the subsequent history of  the legislation.  By the Limitation Act 1963, s.  48  of ’the Code’ is deleted.  Its place has now been taken by Art. 136 of the Limitation Act of 1963. At  one stage, there was considerable conflict  of  judicial opinion as to whether S. 48 is controlled by the  provisions of  the Limitation Act 1908.  But the High Courts which  had earlier  taken the view that s. 48 prescribes a bar and  not limitation  have  now revised their  opinion.   The  opinion amongst the High Courts is now unanimous that s. 48 of  ’the Code’ is controlled by the provisions of the Limitation Act, 1908-see  Kandaswami  Pillai v. Kamappa Chetty(1);  Durg  v. Panchanti(2)   Sitaram  v.  Chunnilalsa(3);  Amarendra   v. Manindra  (  4)  Krishna  Chandra  v.  Paravatamma(5);   and Ramgopal v. Sidratm(6). We are of the opinion that the ratio of the above  decisions correctly  lays down the law.  That apart, it would  not  be appropriate to unsettle the settled position in law. For  the reasons mentioned above this appeal is allowed  and the  order  of the High Court is set aside and that  of  the trial  court restored.  The executing court is  directed  to proceed  with the execution.  The respondents shall pay  the costs of the appellants both in this Court as well as in the High Court. P.Jaganmohan  Reddy, J. I agree with my  learned  brother Hedge J., that the Appeal should be allowed.  In the case of Kishendas  v.  Indo  Carnatic  Bank  Ltd.(7)  I  bad   while delivering the Judgment of the Bench expressed certain views which  may appear to conflict with the view now  taken.   In that case the executability of a decree passed by the Madras High Court in 1940 by the City Civil Court Hyderabad on  the ground  of its be a foreign decree was called  in  question. The  Respondent went into liquidation and a  liquidator  was appointed  by the original side of Madras High  Court.   The liquidator filed an application under Sec. 191 of the Indian Companies Act for the recovery of a sum of Rs. 1375 from the APPellant  who  was  a  subject of H.E.H  the  Nizam  and  a resident of Hyderabad on account (1)  A,I.R. 1952 Mad. 186 (F.D.). (3)  I.L.R. [1944] Nag.250. (5)  A.I.R. 1953 Orissa 13. (2) I.L.R. [1010] All. 647. (4) A.I.R. 1955 Cal. 269. (6) A.I.R. 1943 Bom. 164. (7) A.I.R. 1958 A.P. 407.  829 of  unpaid calls and the Court passed on ex-parte decree  on 15-8-1940  against the appellant.  The liquidator  field  an execution  petition in that Court praying for a transfer  of the  decree  to  the City Civil Court  Hyderabad  which  was ordered  on  15-3-1951 when. the Hyderabad  Civil  Procedure Code  was  in force in the Hyderabad Stat  under  which  the decree  of the Madras High Court would be a  foreign  decree and  the only way in which the liquidator could recover  the

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decreetal  amount was by filing a suit on that  decree.   No doubt  the  Madras High Court could not on  that  date  i.e. 15-3-1951 pass an order directing the transfer of the decree as  it was to a Court which was not governed by  the  Indian Civil  Procedure Code (hereinafter called the Code)  nor  on that  date were there any reciprocal arrangements for  ex--- cuting  those  decrees in the Hyderbad State.   Madras  High Court could not therefore transfer a decree passed by it for execution to a Court which did not satisfy the provisions of Sectons 43 to 45 on that date.  It did not also appear  from the facts of that case whether any notice was served on  the appellant but following the decision of the majority of  the High  Courts  in  this  country  and  also  relying  on  the observations  of  their Lordships of the  Privy  Council  in Sardar Gurdayal Singh v. Raja of Faridkot (1) that a  decree pronounced  in absentum by a foreign Court the  Jurisdiction to which the defendant has not in any way submitted  himself is by international law a nullity, I also took the view that the  non-executability of the decree is to be determired  as on  the date on which it was passed and that no  distinction can  conceivably  be  made between  the.  decree  passed  by British  Indian  Courts  before the  merger  or  before  the Independence  when  it  was a foreign decree  and  a  decree passed   by  the  Courts  of  a  native  State  before   the Independence  or merger in both cases the character  of  the Judgment  would  be  that of a foreign Judgment  and  if  it suffers  from any want of jurisdiction or otherwise it  will continue to be subject to that defect.  This Court had  also expressed  a  similar  view in Raj  Rajendra  Sardar  Malaji Marsingh Rao Shitole v. Sri Shankar Saran & OrS.(2) when  it held that an ex-parte decree passed in 1948 by the  Gwalior, Court  against residents of U.P. who did not appear was  not executable  in Allahabad even though the Gwalior  Court  had transferred  the  decree  in October 1957  after  the  Civil Procedure  Amendment  Act IT of 1951 come info  force  after which the Gwalior Court was a Court under the Cade.  It  was held  by a majority that the decree passed by  the-  Gwalior Court did not change it,, nationality in spite of subsequent constitional  changes  or amendments in the  Code  of  Civil Procedure.   that  if  a  decree  was  unenforceable  in   a particular  Court  at the time it was passed  it  would  not become enforceable and valid simply because of the political changes that (1) 21 I.A. 171. (2) [1963]2 S.C.R. 577. 830 took  place  unless  there is a specific  provision  to  the contrary  and  that the decree being a nullity  outside  the Courts  of the United States (Madhya Bharat) in the  absence of  any specific Provision it could not be enforced  in  the United  States  (Madhya  Bharat)  Kapur  J.,  speaking   for himself, Ralagopala Ayyangar and MUDholker JJ., observed  at pages 594-595 thus :-               "It will not be correct to say that the decree               which  was a nullity before  the  Constitution               came into force suffered only from the  defect               of   enforcibility  by  execution.   Sec.   13               creates  substantive rights and is not  merely               procedural  and therefore defenses which  were               open to the Respondents were not taken away by               any Constitutional changes in the absence of a               specific  provision  to the contrary.   It  is               erroneous to say therefore that the decree  of               the  Gwalior  Court  was  unenforceable   when               passed  because of some impediment  which  the

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             subsequent Constitutional changes had removed;               but   that   decree  suffered  from   a   more               fundamental defect of being a nullity and  the               rights   and  liabilities  created  under   it               remained unaffected. by subsequent changes". The contention that the decree of the Gwalior Court could be executed  after its transfer on September 14, 1951 when  the Civil  Procedure  Code came into force throughout  India  by virtue  of  Act 11 of 1951 and that  therefore  the  Gwalior Court  had  the  power  to transfer  the  decree  which  the Allahabad  Court had under the law authority to execute  was also negatived for the reason that the "Court which made the order  of transfer in September 1951 was then not the  Court which passed the decree within the meaning of Sec. 39".  Das Gupta  J., with whom Sarkar J., as he then  was,  concurred, did  not  find  it necessary to deal with  the  question  of foreign decree which as he said the Allahabad Court  rightly considered  a nullity.  On the second and third question  he held that Allahabad had no power to execute the decree under Sec.  38 of the Civil Procedure Code as there was  no  valid transfer  to it from the Court which passed the  decree  nor did  Section  43  of the Civil Procedure Code  as  it  stood applied to the execution of that decree. Even  though  the  observations  in  Kishendas’s  case  find support  in the above Judgment the ratio of the decision  in that  case  being that the Madras Court on the date  of  the order could not transfer the decree to the Hyderabad  Court, the facts of the case however do not warrant an  application of  the  principles of international law or  of  the  decree being  a nullity.  The earlier-execution  proceedings  ended unsuccessfully with the decision in Hansraj Nathu Ram v.   Lalji Raja & Sons of Bankura(1).  It was decided in that case, (1) [1963]2 S.C.R. 619.  831 that  Morena  Court  not being a Court  to  Which  the  Code applied the decree could not have been transferred and  that Section  38 and 39 of the Code did not  afford  jurisdiction for  such  transfer  as  the Morena Court  at  the  time  of transfer  was governed by the Madhya Bharat  Civil  Procedur Code  and not by the Code.  What is relevant in the  present case  is  that when the decree holder again applied  to  the Bankura  Court  for execution of his decree  by  the  Morena Court  after the decision of this Court in  Hansraj’s  case, both the Court that passed the decree and the Court to which it is transferred for execution were Courts under the  Code, as  such no question of the Bankura decree being  a  foreign decree or it being a nullity could arise.  The Morena  Court on  the  date when the order of transfer of the  decree  was passed  by the Bankura Court is not a Court governed by  the Gwalior  law or Madhya Bharat law as such the impediment  to executability  of  the Bankura decree no longer  exists  nor could it be considered in the light of Section 20(c) of  the Amendment  Act  11  of 1951 as having  saved  any  right  or privileges  under the repealed procedure code of Gwalior  or Madhya  Bharat.  Whatever may be the views expressed in  the several  decisions a view which I was also inclined to  take in  the  decision referred to, though on the facts  of  that case  it may not have been necessary, on a further a  fuller Qonsideration  I agree with great respect with the views  of my  learned brother Hegde, J., that no question of a  vested right  or a privilaeae arises to entitle the  Respondent  to challenge  the execution proceedings in Morena  Court.   The decree granted by Bankura Court was executable by the Courts governed by the same Code by the Court which passed it or by the  Court to which it transferred.  Once the Code is’  made

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applicable to the whole of India by the Amendment Act II  of 1951 the decree is no longer a foreign decree qua the Morena Court  which is a Court under the Code to which the  Bankura Court could transfer the decree for execution.  No doubt  in Shitole  case  it was observed that Section 13 of  the  Code creates  substantive  rights and not merely  procedural  and therefore defence that were open to the Respondents were not taken  away by any Constitutional changes but the  ratio  of the  decision was that the Gwalior Court not being  a  Court that passed the decree after the coming into force of Act IT of 1951 the Allahabad Court could not execute it.  That  im. pediment  does not exist now in that the Bankura  Court  has transferred  the  decree to a Court under I the  Code.   ’Me plea that Section 48 Civil Procedure Code presents a bar  of limitation is also not tenable.  In the result-I agree  that the  appeal  should  beallowd  as  directed  by  my  learned brother. G.C.             Appeal allowed. L 1100 Sup Cl/71 832