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PETITIONER: SHALIGRAM

       Vs.

RESPONDENT: DAULAT RAM

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:  1967 AIR  739            1963 SCR  (2) 574

ACT: Foreign   Decree-Execution-Judgment-Debtor   Submitting   to jurisdiction of court-Decree if executable against him.

HEADNOTE: The  High  Court  of Bombay passed a  decree  against  three defendants who were resident of the former state of  Hydera- bad.   Before  it was passed the appellant had  applied  for leave  to defend which was conditionally granted and on  his failure  an ex-parte decree was passed.  The  appellant  did not file any written statement.  On transfer, the respondent took out execution in the Court of District judge, Bhir,  to which  the appellant object on the ground  inter-alia,  that the decree was a foreign decree and could not be executed in the  Court  at Bhir, which being overruled,  an  appeal  was taken  to  the High Court and the High Court  dismissed  the appeal  on the ground that the appellant had  submitted   to the jurisdiction of the Bombay High Court. Held, that a person who appeared in obedience to the process of a foreign Court and applied for leave to defend the  suit without  challenging the jurisdiction of the Court  must  be held  to have voluntarily submitted to the  jurisdiction  of such Court and therefore this decree did not suffer from any defect  which  a foreign decree would  suffer  without  such submission. Shaik Atham Sahib v. Daviud Sahib, (1909) I. I.  R. 32  Mad. 469, referred to. Held, further, that as the Code of Civil Procedure was  made applicable  to  Hyderabad State when order of  transfer  was made, the decree could be executed there.

JUDGMENT: CIVIL  APPELLATE,  JURISDICTION : Civil Appeal  No.  225  of 1961. Appeal  from the judgment and order dated October 24,  1958, of the Bombay High Court in No, 50 of 1958,                             575

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Ganpat Rai, for the appellant. M.   S. K. Sastri and M. S. Narasimhan, for the repondents. 1962.  April 30.  The Judgment of the Court was delivered by KAPUR,  J.  This is an appeal on a certificate of  the  High Court under Art. 133(1) (e) of the Constitution against  the judgment  and  order  of  the High  Court  of  Bombay.   The appellant was the judgement-debtor and the decree-holder  is the respondent. The decree was passed in August 26, 1931 in Summary Suit No. 3437  of  1930  by the High Court of  Bombay  against  three defendants  who were resident & of Parbhani district in  the former State of Hyderabad.  Before the decree was passed the appellant  had  applied for leave to defend  and  leave  was conditionally  granted  on his depositing  Rs.  5,000/within four weeks.  This, he did not do and on his failure to do as an ex-parte decree was granted for Rs. 52,032-7-0  including costs  and future interest at 6% per annum.   The  appellant did  not  file  any  written  statement.   The  decree   was transferred  for execution to the District Judge,  Bhir,  in Hyderabad States.  The respondent took out execution on June 18, 1954 in the Court of the District Judge, Bhir, to  which objection  was  taken by the appellant, inter alia,  on  the ground that he had not submitted to the jurisdiction of  the Bombay  High Court which was a foreign court  and  therefore the decree was a foreign decree and could not be executed in the  Court at Bhir.  This objection was overruled.   Against that  order  appeal was taken to the High Court and  it  was held  by that Court on July 29, 1958 that the appellant  had submitted  to the jurisdiction of the Bombay High Court  and the  appeal  was therefore dismissed and the  order  of  the Executing Court upheld.  The 576 Letters Patent appeal against that judgment was dismissed in limine  on October 24, 1958.  It is against that order  that the  appeal has been brought on the certificate of the  High Court under Art. 133(1)(c). A  person  who  appears in obedience to  the  process  of  a foreign  Court  and  applies for leave to  defend  the  suit without  objecting to the jurisdiction of the Court when  he is  not  compellable by law to do so must be  held  to  have voluntarily  submitted to jurisdiction of such Court  Shaikh Atham Sahib v. Davud Sahib(1).  Therefore it cannot be  said that  this decree suffered from the defects which a  foreign ex-parte  decree without such submission would suffer  from. The  order for transfer was made at a time when  the  Indian Code  of Civil Procedure became applicable to the  whole  of India  including the former territories of Hyderabad  State. The order of transfer was therefore valid and effective  and the decree could therefore be executed. The  appeal,  in  our  opinion,  is  without  merit  and  is therefore dismissed with costs. Appeal dismissed. (1)  (1909) T.L.R. 32 Mad. 469.                             577