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PETITIONER: THE ASSOCIATED HOTELS OF INDIA, LTD. AND ANOTHER

       Vs.

RESPONDENT: R. B. JODHA MAL KUTHALIA.

DATE OF JUDGMENT: 23/08/1960

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L. SUBBARAO, K. WANCHOO, K.N.

CITATION:  1961 AIR  156            1961 SCR  (1) 259  CITATOR INFO :  R          1975 SC 824  (27)

ACT: Partition  of  India-Creation of two  Dominions,  India  and Pakistan-Formation   of  new  provinces  and   transfer   of territories-Decree  passed  by Federal  Court  of  Pakistan- Whether executable in India-Evacuee laws-Whether affect such decree--The  Indian Independence Act, 1947, s. 9-The  Indian Independence  (Legal Proceedings) Order, 1947, art. 4,  cls. 1, 2, 3-Code of Civil Procedure, 1908 (V of 1908), O. 45, r. 15.

HEADNOTE: On October 2, 1946, the Associated Hotels of India Ltd., and its managing director, Mohan Singh Oberoi, appellant 1 and 2 respectively, entered into an agreement with the  respondent for purchasing certain property from the latter for a  price of  Rs. 52,75,000 and paid Rs. 5 lacs as earnest money;  but as  the respondent’s title to the property was found  to  be defective the sale was not completed.  The appellants  filed a  suit in the Court of Senior Subordinate judge  at  Lahore for the recovery of Rs. 5,10,000 which included the  earnest money  and  interest  accruing thereon,  and  the  suit  was decreed for Rs. 5,08,333/5/4 with future interest in  favour of  appellant  NO.  2  on March  14,  1949.   The  claim  of appellant  No. I was rejected.  On appeal by the  respondent the  High Court at Lahore reversed the decree of  the  trial court  and  dismissed the suit on November  21,  1949.   The Federal  Court  of  Pakistan on  appeal  by  the  appellants allowed the appeal of appellant NO. 2 on December 21,  1953, and  restored the decree passed in his favour by  the  trial court.   After the passing of the decree by the trial  court and  before the decision of the respondent’s appeal  in  the Lahore  High  Court  the appellants had put  the  decree  in execution which was stayed at the request of the  respondent on condition that the respondent should deposit Rs. 3,00,000 in  the High Court and furnish security for the  balance  of the decretal amount.  In course of the execution proceedings and after the Federal Court’s decree in favour of  appellant

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NO. 2 the main question that arose, inter alia, was  whether the deposited sum of Rs. 3,00,000 should be applied  towards the satisfaction of the decree of the Federal Court and paid to  the  decree-holder  after transferring it  to  India  or whether  the custodian of evacuee property in  Pakistan  was entitled  to  the money as evacuee  property.   The  decree- holder  and  the judgment-debtor were both agreed  that  the money in question vested in the decree-holder and     34 260 should as requested by him be either transmitted to India or paid  to  him.  This was resisted by the custodian  and  the High  Court held that the money could not be transferred  to India,  and directed the custodian to report  what  interest any   evacuee  had  in  the  money.   It  was  under   these circumstances   that   the  appellants  made   the   present application to the Punjab High Court (India) under O. 45, r. 15, and s. 151 of the Code of Civil Procedure with a  prayer for  transmitting  to the Court of  the  Senior  Subordinate judge,  Simla,  the  proceedings’ between  the  parties  for execution  of  the  said  decree  in  accordance  with   the provisions  applicable  for execution  of  original  decrees passed  by the said judge.  Their contention was that  as  a result  of  the  provisions  of  Art.  4(3)  of  the  Indian Independence  (Legal  Proceedings) Order, 1947,  the  decree passed in favour of appellant No. 2 by the Federal Court  of Pakistan  had become executable in India as if it  had  been passed  by  the  Supreme Court  of  India.   The  respondent resisted  this on the grounds that the application  was  not entertainable  and the decree could not be executed  in  the absence  of a certificate as required by O. 21, r.  6(b)  of the Code of Civil Procedure, that the decree did not attract the provisions of Art. 4(3) of the Order and that the decree in  question having vested in the Custodian appellant NO.  2 was  not  entitled to execute it.  The relevant  portion  of Art. 4 of the Indian Independence (Legal Proceedings) Order, 1947, runs thus:-         "  Notwithstanding  the  creation  of  certain   new provinces  and the transfer of certain territories from  the Province  of  Assam to the Province of East  Bengal  by  the Indian Independence Act, 1947- (1) All proceedings pending immediately before the appointed day in any civil or criminal court (other than a High Court) in  the  Province of Bengal, the Punjab or  Assam  shall  be continued  in  that court as if the said Act  had  not  been passed,  and that the Court shall continue to have  for  the purpose  of  the said proceedings all the  jurisdiction  and powers which it had immediately before the appointed day; (2)  Any  appeal or application for revision in  respect  of any proceedings so pending in any such court shall be to the court  which  would  have appellate or as the  case  may  be divisional  jurisdiction over that court if the  proceedings were instituted in that court after the appointed day, and (3)  effect shall be given within the territories of  either of  the  two  dominions to any judgment,  decree,  order  or sentence of any such court in the said proceedings, as if it had been passed by a court of competent jurisdiction  within the Dominion." Although  the High Court held that the decree sought  to  be executed  fell  under Art. 4(1) of the order  and  could  be executed  under Art. 4(3) of the said order, it came to  the conclusion that 261 the  "  Court  of competent jurisdiction "  was  the  Senior Subordinate  judge at Simla and that the  appellants  should

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have  filed  their application under O. 45 T.  15,  Code  of Civil Procedure in that Court.  The High Court further  held that  the application was incompetent owing to absence of  a certificate  under  O. 21, r. 6(b), of the  Code,  that  the judgment  debt was property and its situs was  Pakistan  and that the decree vested in the Custodian of Evacuee  Property at  Lahore  and was not executable at the  instance  of  the appellants.   Consequently  the  High  Court  dismissed  the appellant’s  application under O. 45, r. 25.  On  appeal  by the appellants on a certificate of the High Court, Held, (Kapur, J., dissenting), that the provisions of Art. 4 of the Indian Independence (Legal Proceedings) Order,  1947, did  not  apply to the decree sought to be executed  by  the appellants.   The pending proceedings to which Art. 4(1)  of the order applied would continue before the specified courts even  though  the  jurisdiction of  the  said  courts  might otherwise  have been affected by the passing of  the  Indian Independence  Act  or the transfer of  certain  territories. Article 4(1) could not be extended to pending proceedings in respect  of which the trial court’s jurisdiction was  in  no way  affected by the passing of the Act or the  transfer  of any territories. Appeals  would  be  taken against the  judgments  or  orders passed  in the said proceedings in the same manner in  which they would have been allowed if the Original proceedings had been instituted after the appointed day. Protap Kumar Sen and An.Y. v. Nagendra Nath Mazumday, A.I.R. 1951 Cal. 511, Ahidhar Ghose v. Jagabandhu Roy, A.I.R.  1952 Cal. 846, Naresh Chandra Bose v. Sachindra Nath Deb and Ors, A.I.R. 1956 Cal. 222, not applicable. Per Kapur, J.-The High Court could and should have sent down the  decree  in question to the  Senior  Subordinate  judge, Simla, to execute it in accordance with law. The effect of Art. 4(1) and (3) of the Order was that "  all proceedings " meaning all suits and other proceedings  would continue  unaffected  by  the passing of  the  Act  and  the setting up of two provinces of West Punjab and East  Punjab, and  also  that  once  a  decree  was  passed  or   sentence pronounced by a court in either of the new provinces of  the two  Dominions it was to be given effect to as if it  was  a decree or order passed by a Court of competent  jurisdiction in  the  other Dominion.  The amplitude of the  language  of Art.  4 is not cut down by any words in the article  or  the Order. The meaning of the words appellate jurisdiction " as used in cl.  (2)  of  Art- 4 of the Order is  not  affected  by  the subsequent  extension of restriction of the jurisdiction  of the Court and the decree of the Federal Court of Pakistan is covered by these words. 262 The  word  effect " in cl. (3) of Art. 4 is wider  than  the words  " enforce or " execute " and is not equivalent  to  " being enforced " by suit on a foreign judgment. Clause 3 of the Art. 4 is in the nature of a deeming  clause and  makes the decree of the Pakistan Court (West Punjab)  a decree  of a court of competent jurisdiction in East  Punjab (India). Situs of the decree was not Pakistan alone but by a  fiction of  law  the  decree was a decree of a  court  of  competent jurisdiction in what was the Dominion of India. The  provisions  of the evacuee law in  Pakistan  would  not affect the rights of the appellant to execute the decree  in question in India.

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 320/58. Appeal  from the Judgment and Order dated the 22nd  January, 1957,  of the Punjab High Court in Civil Misc.  No. 24/C  of 1955. D. N. Pritt, S. N. Andley, J. B. Dadachanji and P.L.  Vohra, for the Appellants. C. K. Daphtary, Solicitor-General of India, A. V. Viswanatha Sastri and Naunit Lal, for the Respondent. 1960.  August 23.  The Judgment of B. P. Sinha, C. J., P. B. Gajendragadkar,  K. Subba Rao, and K. N. Wanchoo,  JJ.,  was delivered  by  Gajendragadkar,  J.  Kapur,  J.  delivered  a separate Judgment. GAJENDRAGADKAR  J.-The Associated Hotels of India Ltd.,  and its  Managing Director Mohan Singh Oberoi (hereafter  called appellants 1 and 2 respectively) had filed an application in the  High  Court of Punjab under O. 45, r. 15 of  the  Civil Procedure Code for executing a decree passed by the  Federal Court of Pakistan in favour of appellant 2 and against Jodha Mal  Kuthalia (hereafter called the respondent).   The  said application was dismissed but, on an application made by the appellants   under   Art.  133(1)  (a)  and   (c)   of   the Constitution,  the said High Court granted a certificate  to the appellants and it is with the said certificate that they have preferred the present appeal before this Court. 263 It  is necessary at the outset to state the  material  facts leading to the appellants’ application before the High Court under  O. 45, r. 15.  It appears that by an agreement  dated October  2, 1947, the respondent had agreed to sell  to  the appellants certain property known as Nedous Hotel at  Lahore for  Rs. 52,75,000.  In pursuance of the terms of  the  said agreement  the  appellants  had  paid  the  respondent   Rs. 5,00,000 by, way of earnest money.  It, however, turned  out that the respondent’s title to the property in question  was defective, and so the sale could not be completed.  That  is why  the appellants had to file a suit in the court  of  the Senior Subordinate Judge at Lahore claiming to recover  from the  respondent a sum of Rs. 5,10,000; this amount  included Rs.  5,00,000  paid by the appellants to the  respondent  as earnest  money  and interest accrued due thereon up  to  the date of the suit.  In the said suit the trial judge passed a decree for Rs. 5,08,333-5-4 with future interest thereon  at 5%  per  annum in favour of appellant 2. The claim  made  by appellant I was rejected.  This decree was challenged by the respondent  before  the Lahore High Court.  The  High  Court upheld the contentions raised by the respondent, allowed his appeal, set aside the decree passed in favour of appellant 2 and dismissed the appellants’ suit with costs.  This  decree led to an appeal by the appellants before the Federal  Court of  Pakistan.  The Federal Court in turn allowed the  appeal in  favour of appellant 2 and restored the decree passed  in his  favour by the trial court.  This decree was  passed  on December  21,  1953.  The present application  made  by  the appellants  in the Punjab High Court under O. 45, r.  15  is intended to obtain the execution of this decree. While   the  litigation  between  the  appellants  and   the respondent  was  thus proceeding in the courts  in  Pakistan certain  other events took place in regard to the  execution of the said decree to which reference must now be made After the trial court had passed its decree and before the date of the  decision of the Lahore High Court, the  appellants  had put the decree in execution and thereupon the respondent had 264

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applied  for  stay of the said execution before  the  Lahore High  Court.  On the said application the Lahore High  Court ordered  that  the  execution taken out  by  the  appellants should  be  stayed on condition that the  respondent  should deposit a sum of Rs. 3,00,000 in the High Court and  furnish security  for  the  balance  of  the  decretal  amount.   In accordance  with  this order the  respondent  deposited  the amount  and furnished the security.  Subsequently  when  the Lahore High Court allowed the respondent’s appeal he applied for a refund of the amount already deposited by him, and his application  was allowed on December 16, 1949.  On the  same day,   however,   the  Lahore  High  Court   directed   that information of its order allowing the respondent to withdraw the amount should be given to the Custodian.  The  Custodian then moved the High Court on December 20, 1949, for a review of  its order on the ground that the amount in question  was evacuee  property  and  as such it  vested  in  him.   These proceedings  were  pending before the High  Court  when  the appellants  had taken their appeal before the Federal  Court of Pakistan against the High Court’s decision. After the Federal Court decreed the claim of appellant 2 the said  proceedings  were taken up before the High  Court  for final  disposal.   At  this stage  the  respondent  made  an application  before the High Court that the deposit of  Its. 3,00,000  should be applied towards the satisfaction of  the decree passed by the Federal Court in favour of appellant  2 and  he  stated  that he wanted  to  withdraw  his  previous application  for the return of the said deposit (R.   F.  A. No. 31 of 1949). Similarly   appellant   2  filed   a   Civil   Miscellaneous Application (No. 120 of 1954) praying that the amount of Rs. 3,00,000   deposited  by  his  judgment-debtor   should   be transferred  to  India,  or  that, if it  could  not  be  so transferred,  it should be held that the Custodian  was  not entitled to the said amount and so it should be paid to  the decree-holder  at Lahore, or that it should be paid to  such person  other than the Custodian as may be entitled  to  it. These two applications 265 along with the original petition filed by the Custodian  for a  review  of  the High Court’s original  order  allowing  a refund  to  the respondent were heard together by  the  High Court. The  High  Court noticed that both the judgment  debtor  and appellant 2 agreed that the amount in question vested in the decree-holder  and should either be transmitted to India  or paid to him.  The Custodian, however, resisted this  prayer. Under s. 4 of the Pakistan Transfer of Evacuee Deposits Act, 1954,  a  deposit  made in a civil proceeding  to  which  an evacuee  was entitled and in which no muslim was  interested could be transferred to India provided that if the court was satisfied  that  if  any of the persons  interested  in  the deposit  was  not  an  evacuee  the  deposit  shall  not  be transferred.   It  was  under the provisions of  s.  4  that appellant  2  had claimed a transfer of the deposit  on  the allegation that he was an evacuee.  The High Court, however, proceeded  to  consider whether the amount of  Rs.  3,00,000 belonged exclusively to appellant 2- and held that on  going through  the record it was satisfied that though the  decree stood in the name of appellant 2 the amount really  belonged to  the Associated Hotels Limited, and it observed  that  it was not denied that among the shareholders of the Associated Hotels Limited there were muslims and non-evacuees.  It  was urged  before the High Court by appellant 2 that  since  the decree  stood in his name he alone could execute it  and  no

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question  as to the title of appellant I could arise in  the proceedings   before  the  court.   Curiously  enough   this contention  was negatived and appellant 2’s prayer  for  the transfer of deposit was rejected.  How the High Court  could have  considered the question of the title of appellant   in view  of  the  decree  passed by the  Federal  Court  it  is difficult to appreciate.  However, on the view that it  took the High Court came to the conclusion that since appellant I some of whose shareholders were muslims and non-evacuees was entitled  to  the deposit appellant 2 was riot  entitled  to claim  the transfer of the deposit to India.  In the  result the High Court allowed the application of the 266 Custodian  and  set aside its earlier order  for  refund  in favour  of  the  respondent.  In regard  to  the  other  two prayers  made  by appellant 2 the High Court  observed  that under  s.  34  of the  Pakistan  Administration  of  Evacuee Property Ordinance it was only for the Custodian to consider what  interest,  if any, an evacuee had in  the  deposit  in dispute,  and so it left that question to be  determined  by the  Custodian, and directed that the said prayers  made  by appellant 2 would have to be decided after issuing notice to the Custodian and after the Custodian returns his finding on the  issue framed by it.  This order was passed  on  January 20,  1956.  It is under these circumstances that the  appel- lants made the present application to the Punjab High  Court under O. 45, r. 15 of the Code. The  case  for the appellants was that as a  result  of  the provisions  of  s. 4(3) of the  Indian  Independence  (Legal Proceedings)  Order, 1947 (hereafter called the Order),  the decree passed in favour of appellant 2 by the Federal  Court of Pakistan had become executable in India as if it had been passed  by  the Supreme Court of India.  On this  basis  the provisions of O. 45, r. 15 of the Code were invoked and  the High  Court  was requested to transmit to the Court  of  the Senior Subordinate Judge, Simla, the proceedings between the parties  for execution of the said decree in the manner  and according  on the provisions applicable to the execution  of the   original  decree  passed  by  the  said   Judge.    An alternative  prayer  was made for the same order  under  the High Court’s inherent jurisdiction under s. 151 of the Code. This  application was resisted by the respondent on  several grounds.  It was urged that neither O. 45, r. 15 nor s.  151 of  the  Code was applicable, that the decree could  not  be executed, and the application made by the appellants in that behalf  could  not  be  entertained, in  the  absence  of  a certificate  required by O. 21, r. 6(b), that the decree  in fact did not attract the provisions of s. 4(3) of the  Order and that appellant 2 was not entitled to execute it  because the  decree under execution had vested in the  Custodian  of Evacuee Property at Lahore. 267 The  High  Court  has  held that the  decree  sought  to  be executed  fell under s. 4(1) of the Order and thus could  be executed  under s. 4(3) of the said Order.  As a  result  of these findings the appellant was held entitled to invoke the relevant provisions of the Order.  The High Court,  however, came   to  the  conclusion  that  the  court  of   competent jurisdiction specified in s. 4(3) was in the context of  the relevant  facts in the present case the Court of the  Senior Subordinate  Judge at Simla and that the  appellants  should have  filed their application before that court.   The  High Court  also took the view that the present  application  was incompetent  for the additional reason that the  certificate of  non-satisfaction  had  not been  filed  along  with  the

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application as required under O. 21, r. 6(b).  According  to the High Court the judgment-debt was property and its  situs was  Pakistan.  The result of these findings was that  under the  Pakistan  law  the decree vested in  the  Custodian  of Evacuee Property at Lahore, and so it was not executable  at the  instance  of  the appellants.  On  these  findings  the application  made by the appellants was dismissed.   In  the present  appeal Mr. Pritt has challenged the correctness  of these findings. Mr.  Pritt  contends  that  the  expression  "  a  court  of competent jurisdiction " in s. 4(3) of the Order must mean a court  which  can pass the decree under execution  and  that inevitably must mean the Supreme Court of India, because the decree  under  execution is a decree passed by  the  Federal Court  of Pakistan.  According to him the High Court was  in error in holding that the appellants should have produced  a certificate of non-satisfaction because the provisions of O. 45, r. 15 do not require such a certificate.  If the  decree under  execution  has to be regarded as one  passed  by  the Supreme Court of India the provisions of O. 45, r. 15 should have  been applied and no additional limitations imposed  on the  appellants.  Mr. Pritt conceded that the  judgment-debt is  property but disputed the correctness of the  conclusion of  the  High  Court  that the situs of  the  said  debt  is Pakistan.   He  also urged alternatively that  even  if  the situs of the judgment debt is assumed to be Pakistan,  under the relevant    35 268 provisions of Pakistan law the property in the judgment-debt did  not  vest  in the Custodian and  continued  to  be  the property of appellant 2. Naturally in his opening Mr.  Pritt assumed  that the view taken by the Punjab High Court as  to the  applicability  of ss. 4(1) and 4(3) of  the  Order  was right  and  when  the correctness of the  said  finding  was challenged  by  the  respondent  in  his  reply  Mr.   Pritt supported the said finding on the merits. On  the  other  hand,  the  learned  Solicitor-General   has seriously  disputed  the  correctness of  the  High  Court’s conclusion  about the applicability of ss. 4(1) and 4(3)  of the  Order to the decree in question while he has  supported the other findings of the High Court against the appellants. On these contentions the question which logically must first be considered is whether the decree under execution attracts the provisions of s. 4(3) of the Order. The  Order  was made by the Governor-General on  August  12, 1947, in exercise of the powers conferred on him by s. 9  of the  Indian  Independence Act, 1947, and  all  other  powers enabling  him  in that behalf.  Section 1(2)  of  the  Order provides  that it shall come into force at once.  Section  2 of the Order provides that the appointed day means the  15th of August, 1947.  Section 3 makes provisions for proceedings pending  immediately before the appointed day in any of  the special tribunals specified in column 1 to the Schedule.  We are not concerned with the provisions of this section in the present  appeal.   We are concerned with s. 4  which  it  is necessary to read. Section 4 reads thus:- "4.  Notwithstanding the creation of certain  new  Provinces and the transfer of certain territories from the Province of Assam  to  the  Province  of  East  Bengal  by  the   Indian Independence Act, 1947- (1) All proceedings pending immediately before the appointed day in any civil or criminal court (other than a High Court) in  the  Province of Bengal, the Punjab or  Assam  shall  be

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continued  in  that court as if the said Act  had  not  been passed,  and  that  court shall continue  to  have  for  the purposes of the said 269 proceedings  all  the jurisdiction and powers which  it  had immediately before the appointed day ; (2) any appeal or application for revision in respect of any proceedings  so pending in any such court shall lie  in  the court  which  would have appellate, or as the  case  may  be revisional, jurisdiction over that court if the  proceedings were instituted in that court after the appointed day; and (3)  effect shall be given within the territories of  either of  the  two  Dominions to any judgment,  decree,  order  or sentence of any such court in the said proceedings, as if it had been passed by a court of competent jurisdiction  within that Dominion." The  question  which  we have to  consider  is  whether  the proceedings from which the appeal to the Federal Court arose fall  within  s.  4(1); if they do s. 4(3)  will  come  into operation.   If, however, the said proceedings do  not  fall within  s.  4(1),  s.  4(3)  would  be  inapplicable.    The appellants  contend that the words used in s. 4(1) are  wide enough  to include every suit pending in any civil court  in the  Punjab at the material time, and there is no scope  for limiting the extent of the applicability of the said clause. On the other hand, it is urged for the respondent that it is only  such proceedings as were pending in any court  at  the material  time jurisdiction in respect of which  would  have been  affected by the transfer of certain  territories  from one  country  to the other that are intended to  be  covered under s. 4(1).  The problem thus posed by the parties is one of  construction.   As we have already  observed,  the  High Court has construed s. 4(1) in favour of the appellants; and we  have  to consider whether the High Court  was  right  in reaching the said conclusion. Both   the  parties  are  agreed  that  in  construing   the provisions  of s. 4(1) of the Order we should bear  in  mind the object with which the Order was made and should construe the  provisions of the Order after reading them as a  whole. Since  the Order has been passed in exercise of  the  powers conferred  on  the Governor-General by s. 9  of  the  Indian Independence Act it would be useful to refer to the material provisions  of the said section.  Section  9(1)(d)  provides that the 270 Governor-General  shall  by  order make  such  provision  as appears   to  him  necessary  or  expedient   for   removing difficulties  arising in connection with the  transition  to the  provisions  of  this Act.  It was realised  that  as  a result  of  the Act, in carving out  two  Dominions  certain areas  may  have to be transferred from a  Province  in  one Dominion  to  a  province in another  Dominion  and  such  a transfer    would   inevitably   create   difficulties    of jurisdiction  of  the  civil  courts  to  continue  to   try proceedings  already  pending before them.  The  Order  was, therefore,  made  with the object  of  avoiding  unnecessary complications  or  hardship  to the  litigants,  and  so  it provided  that  the  proceedings covered by  it  which  were pending  at the material time should be continued as if  the Act  had not been passed.  In other words, a  departure  was deliberately   made  from  the  normal  rules   of   private international law in regard to the enforceability of foreign judgments.  Both parties are agreed that this was the object in  making  the Order, and that in construing  the  relevant words of the Order the courts must bear this object in mind.

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It  is then urged by the learned Solicitor-General  that  in its  very  nature the Order should be treated  as  temporary though  he immediately added that it would be alive  and  in operation until all the proceedings covered by it have  been finally and fully disposed of.  No doubt he commented on the fact  that  the Pakistan Government had by  its  legislative process made a substantial departure from the provisions  of the  Order,  and  had  in substance  decided  to  refuse  to recognise judgments and orders of Indian courts to which the provisions  of  the  Order  undoubtedly  applied.   In  this connection   our   attention  was  drawn   to   the   Indian Independence (Pakistan Courts Pending Proceedings) Act, 1952 (IX  of 1952), which by s. 3 provides  that  notwithstanding anything contained in any of the orders referred to in s. 2, no decree to which this Act applies shall be given effect to by  any  court or authority in India so far as  such  decree imposes  any  liability or obligation on any  government  in India.  It appears that the Indian Government was  satisfied that  Pakistan had thought it fit to provide that no  decree or 271 order passed by a court in India would be given effect to in Pakistan,  and so it became necessary that the  position  of the  Government  India  and  the  three  State   Governments concerned should be adequately safeguarded.  It is with that object  that  this  Act was  passed.  The  Solicitor-General contends  that  though  the R. Order had been  made  by  the Governor-General  under s. 9 of the Indian Independence  Act and  was intended to apply to both the  Dominions  virtually the  provisions of the Order are no longer in  operation  in Pakistan.   In  our opinion, this  consideration  is  hardly relevant in construing the material provisions of the Order. So  long as the Order remains in force and has neither  been modified  or repealed it is the duty of the courts in  India to  consider its provisions in a fair and reasonable  manner and  to give full effect to them.  Considerations  based  on the  unilateral conduct adopted by the Pakistan  Legislature in departing from the provisions of the Order cannot, in our opinion,  have  any  bearing when we are  dealing  with  the question of the construction of the Order itself.  The Order is in force, and if the decree sought to be executed by  the appellants  falls  under s. 4(1) it will  attract  the  pro- visions  of  s. 4(3) and all relevant questions  arising  in working  out  the  provisions of s. 4(3) would  have  to  be judicially  considered.  It may be that there may not  be  a large  number  of  decrees  or  orders  which  still  remain executable  and have not been executed and so  occasions  to invoke  the provisions of this Order may not be too  many  ; but that is another matter. Let  us then consider the provisions of s. 4(1) first.   Mr. Pritt  has  urged that the appeal to the  Federal  Court  in which  the  decree under execution was passed in  favour  of appellant 2 arose from proceedings which were pending at the material  time in a court in the Punjab and as such it  fell within the purview of s. 4(1).  He emphasises the fact  that s. 4(1) refers to all proceedings in any civil court in  the Punjab as well as in the Provinces of Bengal and Assam,  and his case is that there is no justification for limiting  the scope and effect of the wide words used in the first part of the clause.  Prima facie there is some force in 272 this contention ; but, in our opinion, it would be erroneous to construe these words in isolation and apart from the rest of  the  provisions  in the said clause  it.  self.   It  is significant that s. 4 refers to the creation of certain  new

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Provinces and the transfer of certain terri tories from  the Province  of  Assam to the Province of East  Bengal  by  the Independence Act.  In other words,  the non-obstante  clause which  constitutes  the preamble of s. 4  clearly  indicates that  it was the creation of certain new Provinces  and  the transfer of certain territories which was the reason for the provisions  made in the three clauses of the  said  section. It  is  also  significant  that s.  4  is  confined  to  the specified   judicial  proceedings  pending  in  only   three Provinces; that is to say, proceedings pending in  competent courts either in Sind or in the North West Frontier Province which  are parts of Pakistan and in all the States in  India except  Punjab,  West Bengal and Assam do  not  attract  the provisions of the Order.  There is, therefore, no doubt that the  High Court was in error in assuming that " the  use  of the words gall’ in ’all proceedings’ clearly indicated  that all  cases pending in all courts in the two  Dominions  were intended  to be covered by the Order.  It is  manifest  that the Order, in its application to India and Pakistan, covered only three Provinces and not all. The  latter  part of s. 4(1) must now  be  considered.   The pending  proceedings  covered by the first part have  to  be continued in the court where they are pending as if the said Act  had not been passed, and that court shall  continue  to have  for  the  purpose  of the  said  proceedings  all  the jurisdiction and powers which it had immediately before  the appointed  day.   These two clauses  unambiguously  indicate that  by the passing of the Act the initial jurisdiction  of the court to entertain the proceedings pending before it was affected ; that is why, in authorising the said  proceedings to continue before the said court the clause proceeds to say that  the said proceedings shall continue as if the Act  had not been passed.  In other words, reading s. 4(1) as a whole there can be no doubt that 273 its provisions were intended to safeguard the continuance of only such pending proceedings in respect of which  questions of Jurisdiction of the trial court would have arisen by  the passing of the Act and the transfer of certain  territories. If  proceedings  were pending before  the  specified  courts validly at the material time, and if the jurisdiction of the said  courts  to  continue  with  the  trial  of  the   said proceedings  was not affected by the passing of the  Act  or the transfer of the territory, it was wholly unnecessary  to authorise  the  continuance of the said proceedings  in  the said  court and to provide that the said proceedings  should be  so  continued  as if the Act had not  been  passed.   In regard to such proceedings the latter part of s. 4(1)  would be  wholly  redundant.   The only  answer  which  Mr.  Pritt attempted to give in facing this difficulty was that even in regard   to  proceedings  which  the  specified  court   was competent  to  try  even after the passing of  the  Act  its jurisdiction  to  execute the decree would  be  impaired  or affected  and  that was intended to be cured  ’by  s.  4(1). This  argument  is clearly far-fetched and  untenable.   The jurisdiction  and powers which are saved by s. 4(1)  are  in terms described as jurisdiction and powers " for the purpose of  the said proceedings ". It is the jurisdiction  to  con- tinue  with the pending proceedings which had  been  validly initiated  and the word " proceedings " in the context  must mean,  in  the case of a suit, a suit  and  not  proceedings which  may  be taken out to execute the decree that  may  be passed in such a suit.  Therefore, we feel no difficulty  in holding  that  s.  4(1) does not apply  to  all  proceedings pending at the material time before the specified courts but

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only  such of them in respect of which the  jurisdiction  of the  trial court would have been affected by the passing  of the Act or by the transfer of certain territories. Section  4(2) deals with appeals or revisional  applications arising  from  the pending proceedings covered by  cl.  (1). The  learned  Solicitor-General contends  that  this  clause cannot apply to an appeal before the Federal Court  because, according  to  him,  it is only an appeal in  respect  of  a pending proceeding that is 274 contemplated by the clause.  He argues that the word  appeal " can reasonably mean only one appeal which arises  directly against  the  decree passed in the pending  proceedings  and there   would,  therefore,  be  no  scope  to   extend   the application of s. 4(2) to a second  appeal, as for  instance an  appeal  to the Federal Court in the  present  case.   In support of this argument he J. has incidentally referred  to the fact that the Federal Court had not come into  existence and had no jurisdiction to entertain a regular appeal from a decision  of the High Court at the time when the  Order  was made.   We  are  not impressed by  this  argument.   In  our opinion  there is no doubt that the word " appeal "  in  the context  must mean any appeal or appeals allowed by  law  in respect  of  pending proceedings covered by  cl.  (1).   Any other  view would lead to unreason. able, if not  anomalous, consequences.   What cl. (2) intends to provide is that  the proceedings  to which cl. (1) applies should be  allowed  to take their full course under the law governing them, and the final  effective  appellate decision should be as  valid  in regard  to the said proceedings as it would be in regard  to the  proceedings validly instituted in that court after  the appointed  day.   Incidentally, we may point out that  as  a result  of the combined operation of Order G. G. O.  3  made on.   February 25, 1948, and the provisions of  the  Federal Court (Jurisdiction Enlargement) Act, 1 of 1950, the Federal Court must be deemed to have come into existence and must be deemed  to  have had powers to entertain  appeals  from  the decrees of the High Courts as from the appointed day. That takes us to s. 4(3).  The Solicitor-General con;  tends that  the  expression,, effect shall be given  to’  in  this clause does not mean that the decree shall be executed.   It only  means that the decree shall be recognised as a  decree passed  by  a court of competent  jurisdiction  and  nothing more.   His  argument  is that s. 4 wanted to  make  a  very narrow and limited departure from the ordinary principles of private international law.  It is well-known that except for cases  falling  under ss. 44 and 44A of the  Code  of  Civil Procedure a foreign judgment has to be enforced by a suit; 275 and  in such a suit the judgment-debtor is entitled to  make certain  pleas  against  the enforcement  of  the  judgment. These pleas are specified by cls. (a) to (f) of s. 13 of the Code.   According to the Solicitor-General, as a  result  of the  fiction introduced by s. 4(3), when a foreign  judgment to  which  s. 4(1) applies is I sought to be enforced  by  a suit  in  an  Indian  court it would  not  be  open  to  the judgment-debtor to urge that the judgment or decree has  not been  passed by a( court of competent jurisdiction ;  though such a plea is permissible under s. 13(a) it is excluded  by operation of s. 4(3) of the Order; the remaining pleas would still  be available to the judgment-debtor.  If it  is  held that  the  word  " effect shall be given "  means  that  the decree  shall  be  executed  quite  clearly  all  the  pleas recognised  by  s.  13 of the Code  would  be  inapplicable. Therefore,  according to the respondent, the present  decree

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cannot  be  executed but must be enforced by a suit  and  it would  be open to the judgment-debtor to raise pleas (b)  to (f)  recognised  by  s. 13 of the Code.   This  argument  is sought  to be supported on the ground that the  jurisdiction which  is  protected  by  s. 4(1) is  a  national  or  local jurisdiction  whereas  the competent jurisdiction  to  which reference   is  made  in  s.  4(3)  is   the   international jurisdiction.     The   distinction   between   these    two jurisdictions  is  based on the statement  contained  in  an earlier edition of Dicey’s "Conflict of Laws" to the  effect that " Proper Court means a court which is authorised by the law  of  the  country to which it  belongs  or  under  whose authority  it  acts,  to adjudicate  upon  a  given  matter, whereas ’Court of competent jurisdiction means a Court which has,  according  to  the principles  maintained  by  English Courts, the right to adjudicate upon a given matter"(1).  We ought to add that these definitions have been given by Dicey only to explain the meaning of the said words used by him in his  Digest  and nothing more, and even so it is  not  shown that they find a place in the latest edition of the book. (1)  Dicey’s " Conflict of Laws", 6th Ed., P. 345.     36 276 In  considering the merits of this argument it is  necessary first to bear in mind what is meant by the clause " a  court of  competent  jurisdiction  within that  Dominion  ".  This clause  in substance provides inter alia that  the  judgment should  be given effect to within the territories of  either of  the  two Dominions, and in doing so  the  said  judgment should  be  treated as if it had been passed by a  court  of competent  jurisdiction within that Dominion.   The  context thus clearly shows that the words " that Dominion " indicate the Dominion where effect is being given to the judgment; it cannot possibly mean the Dominion in which the judgment  had been  delivered, because the competent jurisdiction  of  the court to deliver the said judgment has been already provided for  by  s. 4(1).  It would, we think, be idle to  make  any distinction  between the jurisdiction prescribed by s.  4(1) and the competent jurisdiction to which reference is made in s.  4(3).  Thus s. 4(3) requires that in the Dominion  where effect is being given to a judgment, the judgment should  be treated  as passed by a court of competent  jurisdiction  in that  Dominion.   If  that be so it would  be  difficult  to accept the plea that the only way in which effect should  be given is to recognise the judgment as a foreign judgment  as suggested   by  the  learned  Solicitor-General.   If,   for instance,  in the present case the judgment of  the  Federal Court  is treated by the statutory fiction as one passed  by the  court of competent jurisdiction in India the  words  it effect  shall  be  given  " used in  the  said  clause  must inevitably mean that the decree following upon that judgment should  be executed in India on the basis that the  judgment has been competently pronounced by an Indian court.   Indeed it is clear that unless cl. (3) intended to provide for  the execution  of  the judgment covered by cls. (1) and  (2)  it would serve no purpose whatever.  To say that cl. (3) merely saves a possible plea in s. 13(1) is to ignore the effect of cl.  (1)  itself.   By  cl.  (1)  the  jurisdiction  of  the specified  court  to deal with the  pending  proceedings  is provided,  and  so there could be no challenge to  the  said jurisdiction any longer.  We are, therefore, satisfied  that cl. (3) in 277 effect  lays  down  that  the  judgment,  decree,  order  or sentence to which the Order applies is executable and  would

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be executed as though it bad been passed or pronounced by  a competent  court in the Dominion where execution is  sought. This  conclusion  is  fortified if we bear in  mind  that  a sentence pronounced by a criminal court is dealt with in the same manner as a judgment delivered or order made by a civil court.  It, would be far-fetched to suggest that in the case of  a sentence pronounced by a criminal court all  that  cl. (3) authorises to be done is to take recourse to extradition proceedings  permitted  by law and nothing more.   We  must, therefore,  hold  that  reading the three clauses  of  s.  4 together the result is that the pending proceedings to which cl.  (1) applies would continue before the specified  courts even  though  the  jurisdiction  of  the  said  courts   may otherwise  have been affected by the passing of the  Act  or the transfer of certain territories, that the appeals  would be taken against the judgments or orders passed in the  said proceedings in the same manner in which they would have been allowed  if  the original proceedings  had  been  instituted after  the  appointed  day, and  that  the  final  judgment, decree,  order or sentence in the said proceedings would  be executed  in either Dominion as if the said proceedings  had terminated  in  that  manner in a  competent  court  in  the Dominion  where execution is sought.  Having regard  to  the very  serious departure which has been made by cl. (3)  from the  ordinary  provisions of private  international  law  it would not be unreasonable to draw additional support to  our conclusion  that  the scope and extent  of  the  proceedings covered  by  cl.  (1) is limited only to  such  cases  where jurisdiction  of  the specified court was  affected  by  the passing  of the Act or the transfer of certain  territories. It seems to us difficult to assume that in making the  Order the Governor-General intended that all decrees, judgments or orders  passed  by  all the courts in  the  three  specified States  should fall under cl. (1) and should be  capable  of immediate  execution in either Dominion under cl.  (3).   If that were so it is not easy 278 to appreciate why the two other Provinces which formed  part of  Pakistan as well as the other Provinces in India  should have  been excluded from the scope of this Order.  It  seems to us that the main. object of the Order was not to  disturb or interrupt judicial proceedings pending in the  respective courts  in the Provinces specified where it was  apprehended that  the jurisdiction of the said courts would be  affected by the passing of the Act.  We have carefully considered the three  clauses  in question and we are satisfied that  on  a fair and reasonable construction s. 4(1) cannot be  extended to pending proceedings in respect of which the trial court’s jurisdiction  was in no way affected by the passing  of  the Act or the transfer of any territories. At  this stage we may conveniently refer to three  decisions of the Calcutta High Court on which Mr. Pritt relied and  to which  the  High  Court has referred in  its  judgment.   In Protap  Kumar Sen & Anr. v. Nagendra Nath Mazumdar  (1)  the Calcutta High Court was dealing with an execution proceeding initiated  by the decree-holder in the Alipore Court with  a certificate  of non-satisfaction issued by the Sub-Judge  at Jessore  who  had passed the decree  under  execution.   The validity of the non-satisfaction certificate appears to have been challenged by the judgment-debtor.  The High Court held that the Jessore Court was competent to grant a  certificate of  non-satisfaction having regard to the provisions  of  s. 4(1) and (3) of the Order.  The other point which was raised was  in regard to the validity of the Order itself.  It  was urged  that  after the Indian Constitution was  adopted  the

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Indian Independence Act and orders issued thereunder were no longer in force having regard to the provisions of art.  395 of  the Constitution.  This argument was also rejected.   We may add that the respondent has not urged before us that the Order  is  no longer in force and so it  is  unnecessary  to consider  that point.  This decision, therefore, is  not  of much assistance in construing the material words used in  s. 4(1). In Ahidhar Ghose v. Jagabandhu Roy (2) a decree (1) A.I.R. 1951 Cal. 511. (2) A.I.R. 1952 Cal. 846. 279 sought  to be executed bad been passed by the Alipore  Court on compromise.  It was a suit between a zemindar who held  a Patni  in respect of lands which at the institution  of  the suit lay wholly within the jurisdiction of Alipore Court but as  a  result of the partition part of the  land  went  into Pakistan and thus R. ceased to be under the jurisdiction  of the  Alipore Court.  The compromise decree provided for  the payment of kist amount by stated installments and it further directed  that in case of default of payment of any  of  the said instalments the entire decretal amount then outstanding would  be  realisable  by the attachment  and  sale  of  the property in default.  Since the property of the Patni tenure was situated partly within the jurisdiction of Alipore Court and  partly outside, the judgment-debtor raised a plea  that the claim made by the decree-holder for sale of the property within jurisdiction was incompetent.  With that part of  the case we are not concerned in the present appeal.  So far  as the  applicability of s. 4(1) of the Order is concerned  the court held that s. 4(1) applied to the proceedings and  that we  think  was clearly right.  It was a  proceeding  validly instituted before the Alipore Court; the jurisdiction of the Alipore  Court  was  affected  by  partition,  and  so   the proceeding fell within the scope of s. 4(1).  There are some general observations made in the judgment on which  reliance is  placed by Mr. Pritt, but the said  general  observations must  be read in the context of the facts in the  case  with which the court was concerned.  Thus this decision also does not really assist the appellants. In  Naresh  Chandra  Bose v.  Sachindra Nath  Deb  and  Ors. (1),the  principal question which the court  considered  was the effect of the provisions of Art. 395 of the Constitution on  the  validity and the continuance of the Order.   As  we have already pointed out, with this aspect of the matter  we are not concerned in the present appeal. The  next question which must be considered is  whether  the present  suit  falls within s. 4(1) at all.  The  answer  to this question must obviously be in the (1) A.I.R. 1956 Cal. 222. 280 negative.The material allegations made by the appellants  in the plaint filed by them in the present suit clearly    show that  the  whole  cause of action  had  accrued  within  the jurisdiction  of  the  Senior  Sub-Judge  at  Lahore.    The original  contract had taken place at  Lahore,  the property agreed to be sold was situated at Lahore, the earnest amount of  Rs.  5,00,000  was   paid  by  the  appellants  to   the respondent at Lahore, the breach of the contract took  place at  Lahore,  and  so under s. 20(c) of  the  Code  of  Civil Procedure the suit was properly filed in the court at Lahore and  the jurisdiction of the said court to try the suit  was in  no  manner  affected by the passing  of  the  Actor  the transfer  of  territory.  This position was not and  is  not disputed.   There  is, therefore, no doubt  that  the  trial

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court  could have proceeded to deal with this suit  even  if the  Order  in  question had not been  passed;  and  so  the statutory  fiction  raised by the provisions  of  the  Order cannot  be  invoked  in enforcing a  decree  passed  by  the Federal Court in an appeal arising from such a suit.  In our opinion,  therefore, the High Court was in error in  holding that the provisions of s. 4 applied to the decree sought  to be executed by the appellants. In view of this conclusion it is not necessary to deal  with the  other points which have been decided by the High  Court and  which  were argued before us.  If we had  come  to  the conclusion that the suit out of which the appeal before  the Federal  Court arose was a pending proceeding under s.  4(1) it  would  have been necessary for us to decide  some  other questions.   We  would, for instance, have had  to  consider which is the court of competent jurisdiction in India  under s. 4(3) is it the Supreme Court ? If yes, do the  provisions of  O.45,  r. 15 apply if not, does  the  statutory  fiction raised  by s. 4 assist the appellants in invoking  the  said provisions  ? If the statutory fiction does not  assist  the appellants, to what court should they have applied ? Are the present  proceedings in the nature of execution  proceedings before  a  transferee  court?  Is the  certificate  of  non- satisfaction  prescribed  by O. 21, r. 6(b) necessary  ?  It would also have been necessary to consider the character  of the judgment-debt with the 281 object  of  deciding  whether or not the  decree  vested  in appellant  2,  or in the Custodian of  Evacuee  Property  at Lahore.   As we have already indicated, since we  have  held that  the provisions of s. 4 are inapplicable to the  decree sought to be executed by the appellants it is unnecessary to decide these questions. Thus,  though  we have differed from the conclusion  of  the High  Court in regard to the applicability of s. 4    of the Order that does not affect the final result of the appeal  ; because  on the view we take about the scope and  effect  of the provisions of s. 4 we hold that the application made  by the appellants before the High Court under O. 45, r. 15  was incompetent,  and so the High Court was right in  dismissing it. The appeal accordingly fails and is dismissed with costs. KAPUR  J.  I regret I am unable to agree with  the  majority judgment  proposed which I have read with care  and  respect that  it necessarily deserves and I now proceed to  give  my reasons for this dissent. This  is an appeal by a certificate under Art. 133  (1)  (a) and (c) against the judgment and order of the High Court  of Punjab dismissing the appellants’ application for execution. The  appellants, the Associated Hotels of India Ltd. and  R. B. Mohan Singh Oberoi, the petitioners in the High Court, by an agreement, dated October 2, 1946, agreed to purchase  and the respondent agreed to sell certain properties situate  at Lahore  now  in Pakistan for a, sum of  Rs.  52,75,000.   In pursuance  of the said agreement the appellants paid to  the respondent a sum of Rs. 5 lacs by way of deposit or  earnest money.   The sale was not completed as the respondent  could not make out a good title to the property agreed to be sold. On May 8, 1947, the appellants filed a suit in the court  of the   Senior  Subordinate  Judge  at  Lahore   against   the respondent  for  the recovery of Rs.  5,10,000,  the  amount deposited  and  interest  thereon @ 6% per  annum  and  also claimed  future  interest.   This suit was  decreed  by  the Senior Subordinate Judge on March 14,1949, for a sum of  Rs. 5,08,333/5/4 with future interest @ 5% per

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282 annum but only in favour of the second appellant R. B. Mohan Singh  Oberoi.   The respondent took an appeal to  the  High Court at Lahore and on November 24, 1949, the decree of  the trial court was reversed and the suit dismissed with  costs. Against that judgment and decree both the appellants took an appeal  to the Federal Court of Pakistan.  On  December  21, 1953, the Federal Court of Pakistan allowed the appeal,  set aside the decree of the High Court and restored that of  the Senior Subordinate Judge, Lahore. After preferring his appeal in the High Court the respondent applied  to  and on April 27, 1949, obtained from  the  High Court  an  order of stay of the execution on  the  condition that he deposited a sum of Rs. 3 lacs in the High Court  and gave  security for the balance.  This sum was deposited  and the  security  was  furnished and  thus  the  execution  was stayed.  After the judgment of the High Court the respondent applied  to  that  Court for the refund of  the  three  lacs deposited  by  him and an order to that effect was  made  on December 16, 1949.  By the same order the Lahore High  Court directed  notice  to be issued to the Custodian  of  Evacuee Property,  Lahore.   On  December 20,  1949,  the  Custodian applied for a review of the order of the High Court allowing the  money  to  be  withdrawn  by  the  respondent  on   the allegation  that the amount deposited was evacuee  property. He also obtained an interim stay of the order directing  the return  of money to the respondent.  On December  21,  1953, the  Federal Court of Pakistan reversed tile decree  of  the Lahore  High  Court.   Thereafter on January  6,  1954,  the respondent applied to the High Court praying that the amount deposited  be  applied towards a part  satisfaction  of  the decree  passed against him.  On March 31, 1954, R. B.  Mohan Singh  Oberoi appellant No. 2, applied for the  transfer  of the  Rs.  3 lacs along with the  relevant  records  relating thereto,  to  India under the Transfer of  Evacuee  Deposits Ordinance,   1954  (Ordinance  No.  1  of  1954),  and   the subsequent enactment.  In the alternative he submitted  that the  Custodian of Evacuee Property was not entitled to  that money and prayed that it be paid to him 283 at  Lahore  or that it be paid to a person  other  than  the Custodian  of Evacuee Property but not to the respondent  as the  latter  had no interest in the money.  On  January  30, 1956,  the Lahore High Court which by then became  the  High Court of West Pakistan held (1)    that the money could  not be transferred to India ; (2) allowed   the   petition   for review;  and  (3)  directed the  Custodian  to  report  what interest,  if  any,  any evacuee had  in  the  money.   That matter,  we  were informed, is under appeal in  the  Supreme Court of Pakistan. On January 19, 1955, the appellants filed an application  in the Punjab High Court at Chandigarh under Order 45, Rule 15, Civil Procedure Code and s. 151 of the Code for transmission of the decree of the Pakistan Federal Court to the Court  of the  Subordinate  Judge  at  Simla  and  for  directions  to determine  the  decretal  amount.  In  the  alternative  the appellants prayed for the decree being sent to the  District Judge  for execution.  They alleged therein that  under  the provisions  of Art. 4(3) of the Indian  Independence  (Legal Proceedings Order), 1947, hereinafter called the Order  made under  s.  9  of the Indian  Independence  Act,  hereinafter called the Act, effect could be given within the territories of  the Union of India to the decree passed by  the  Federal Court of Pakistan and it could be executed as if it had been passed by a court of competent jurisdiction within the Union

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of  India; that the decree was to be treated as if it was  a decree  of the Supreme Court of India and was executable  by the  court of the senior Subordinate Judge at Simla  on  the decree being transmitted to it by the High Court as provided in  Order  45,  Rule  15,  Civil  Procedure  Code.   In  the alternative it was prayed that if the procedure under  Order 45,  Rule 15, Civil Procedure Code, was not appropriate  and applicable,  the decree be sent for execution to the  Senior Subordinate  Judge’s Court "as if it had been passed by  the Court  ". With this petition an application in the form  set out in Order 21, Rule 11, Civil Procedure Code was attached. The respondent pleaded that the decree being a 37 284 decree of a foreign court could not be executed in India and O.  45,  r. 15, was inapplicable; that the Act  having  been repealed by the Indian Constitution the Order had ceased  to exist;  that the decree vested in the Custodian  of  Evacuee Property,  Lahore and the "appellants being divested  of  it could not execute it; that the petition wag not maintainable because  the appellants had not filed a certificate of  non- satisfaction of the court which passed the decree; that Art. 4(3)  of the Order was inapplicable as the suit  pending  in the Lahore court at the time of the partition did not suffer from any defect of jurisdiction as a result of the partition of  India; and that the appellants could not  simultaneously take execution proceedings in the courts of two  independent countries in regard to the same decree. On January 22, 1957, the High Court of Punjab dismissed  the petition  holding that in spite of the coming into force  of the Indian Constitution the Order was still in force; that " all  cases pending in all courts in the two  dominions  were intended  to be covered by the Order ", and the only way  in which  a decree of a civil court in Pakistan could be  given effect to was to allow it to be executed in India; that  the court of competent jurisdiction mentioned in the Order would be  the  court of the Subordinate Judge First Class  at  the place where the decree was sought to be executed and  there- fore the proper procedure was not to apply to the High Court but to apply for a transfer certificate and after  obtaining a  non-satisfaction  certificate from the Federal  Court  of Pakistan  or from any other competent court in Pakistan,  to execute  the decree in the court of the  Senior  Subordinate Judge,  Simla; that the appellants had been divested of  all rights in the decree by the Evacuee Law of Pakistan and they had no right to execute the decree.  In this connection  the High  Court held that the situs of the decree  was  Pakistan where  the  decree was passed and that the amount of  Rs.  3 lacs  which  was being claimed by the Custodian  of  Evacuee Property,  Lahore,  will be taker. into  account  after  the decision of that matter by the courts of Pakistan.  Thus the petition of the appellants                             285 was  dismissed.  It is against this judgment and order  that the appellants have come in appeal to this court. The  first question for decision is the construction of  the fourth  clause of the Order.  The High Court did not  accept the  contention  of  the  respondent  that  the  Order   was applicable  only to proceedings over which R. the court  had lost  its  territorial jurisdiction consequential  upon  the division  of the border districts and not to in  proceedings pending in any court in the provinces of the two  dominions, i.e., in any court of the provinces of East and West  Punjab or East or West Bengal.  This contention was repeated before us and the same Constricted interpretation was sought to  be

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put on the words of Art. 4(1) of the Order.  An  examination of the provisions of the Act and other Orders made hereunder will  be helpful in determining the scope of Art. 4  of  the Order.  The object of the Act was to provide for the setting up  of  the  two independent Dominions  in  India,  to  make suitable changes in the Government of India Act, 1935, and " to  provide  for the matters consequential on  or  connected with  the  getting  up of those Dominions ".  By  s.  1  two separate  Comings of India and Pakistan were set up.  By.  2 the  territories  which were to fall in the  two  respective Dominions were delimited.  Certain provinces wholly fell  in one  Dominion  or  the other,  but  three  provinces,  i.e., Bengal, the Punjab and Assam were to be provided between the two Dominions which was done under ss. 3, 4 and 9(6) of  the Act.   Under  s.  3  the  province  of  Bengal,  as  it  was constituted under the Government of India Act, 1935,  ceased to   exist  and  in  as  place  two  new  provinces  to   be respectively   known  East  Bengal  and  West  Bengal   were constituted.   Under the first schedule of the  Act  certain districts  wholly fell in East Bengal and the rest  in  West Bengal.  this was subject to the Award of the Boundary  Com- mission in regard to the boundary between the two  provinces which  meant  between  contiguous  districts  the  two   new provinces.  Similarly under s. 4 the province of the  Punjab was  divided  into  West Punjab and East  Punjab  and  whole districts  mentioned in schedule 2 fell in West  Punjab  and the rest in East 286 Punjab, but this was also subject to the Award to be made by the  Boundary  Commission which though made  on  August  12, 1947,  was  published on August 17, 1947,  and  thus  became operative  on  that  day.  There was some dispute  as  to  a portion of the province    of Assam and it, as a result of a plebiscite, was in corporated in the province of East Bengal and the rest of the province of Assam was constituted  under s.  9(6) of the Act into what became the province of  Assam. The Award of the Punjab Boundary Commission shows that  only small areas of the border tehsils of the border districts of Gurdaspur,  Amritsar  and  Ferozepur  in  East  Punjab   and Sialkot, Lahore and Montgomery in West Punjab, i.e., tehsils along the rivers Ravi and Sutlej were affected by the  Aware and the territories exchanged were not numerous of large  by any standard. The setting up of the two Dominions and the division of  the three provinces of Bengal, the Punjab and Assam gave rise to many   problems  relating  to  legislative,  executive   and judicial  branches of the Government including the  division of assets, liabilities and powers.  Certain provisions  were made  in  the  Act itself, but in order  to  give  effective operation to the purposes of the Act it became necessary  to promulgation  Orders which was provided for in s. 9  of  the Act  an  which comprised all the three  branches  of  govern mental activity; executive, legislative and judicial Section 9 provided and I quote the relevant provisions:               "  9(1)  The Governor General shall  by  order               make  such provision as appears to him  to  be               necessary               expedient-               (a) for bringing the provisions of this Act in               the effective operation ;               (b)   for dividing between the new  Dominions,               and   between   the  new   Provinces   to   be               constituted   under  this  Act,  the   powers,               rights,  property, duties and  liabilities               of the Governor General or, as the case me be,

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             of the relevant Provinces which, under this  A               are to cease to exist;               (c)   ...................................................... .               287               (d)   for  removing  difficulties  arising  in               connection with the  transition     to     the               provisions of this Act;...... (i)  so  far  as  it  appears  necessary  or  expedient   in connection  with any of the matters aforesaid,  for  varying the constitution, powers or jurisdiction of any legislature, court  or other authority in the new Dominions and  creating new legislatures, courts or other authorities therein ". By  sub-s.  (6)  the Province of Assam on  a  certain  event happening was to cease to exist and was to be reconstituted. Provision  was also made in the section for  continuance  of the existing laws.  In exercise of the powers conferred upon him under the Act the Governor General of India  promulgated a number of Orders. In  regard to other provinces unaffected by the Act, it  was unnecessary to make any Order as to the executive,  judicial or legislative functions of the government and  consequently none  were made.  But wherever any provision  was  necessary whether in the sphere of the Dominion or of the provinces of Bengal, the Punjab and Assam various Orders were made by the Governor  General  which included Orders in  regard  to  the Federal Court because of the setting up of the two Dominions and in regard to the High Courts of Calcutta and Lahore. The Federal Court Order was promulgated on August 11,  1947, by Art. 5 of which all proceedings which were pending in the Federal  Court immediately before the appointed day were  to continue in the Federal Court of India on or after that  day with  the proviso that if it appeared to the Court that  any such  case ought to be transferred to the Federal  Court  of Pakistan  those proceedings were to be transferred  to  that Court and with regard to those proceedings the  jurisdiction of the Pakistan Court was exclusive.  Any order made in  the proceedings which were pending in the Federal Court of India and  were  continued on or after the appointed  date  became enforceable  not  only in India but also in Pakistan  as  if they  were  orders made by the Federal  Court  of  Pakistan. This  is clear from the language used in those articles  and it was so 288 held in regard to the High Court of Calcutta by the  Federal Court in Midnapore Zemindary Co. Ltd. v. Province of  Bengal and others (1) where Patanjali Sastri, J. (as he then  was), said:- "  It  will  be seen that, by virtue  of  these  provisions, notwithstanding the constitution of the new province of East Bengal  as part of the Dominion of Pakistan, the decree  now under  appeal which was made by the High Court  of  Calcutta before the appointed day is to have effect in East Bengal as if  it was an order made by the High Court of  East  Bengal, while any decision of this court as the " appellate court  " confirming,  varying or reversing that decree is to  receive effect  as  if that decree were also a decree  of  the  High Court  of East Bengal.  In other words, the  judgment  under appeal is to be regarded as a judgment of the High Court  of East Bengal and quoad hoc this Court as the Court of  appeal from that High Court ". For  the purposes of defining the jurisdiction of  the  High Courts of Calcutta and Lahore, for the establishment of  the High Courts for the five new provinces, for specifying their powers  and  the extent and limit of  the  effectiveness  of

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their orders the Governor General made four orders on August 11,  1947,  i.e., The High Courts (Bengal) Order,  The  High Courts  (Punjab) Order, The High Court (Calcutta) Order  and the  High Court (Lahore) Order.  Under Art. 13 of  the  High Courts  (Punjab)  Order original proceedings in  the  Lahore High  Court were to continue in that High Court but  appeals and  revisions pending immediately before the appointed  day stood transferred to the High Court of East Punjab where the court of origin was situated in the province of Delhi or the Province of East Punjab.  That Order provided that any order made  by  the  High  Court of  East  Punjab  in  proceedings transferred to it was to have effect not only as an order of that  High Court but also of the High Court of Lahore;  Art. 13(5).   Further it provided that where before or after  the appointed  day  any  order had  been  confirmed,  varied  or reversed on appeal, effect shall be given to the decision of the appellate court as if the order appealed (1)  [1949] F.C.R. 309, 318. 289 from were an order not only of the High Court that made  the order but also of the High Court of East Punjab or of Lahore as the case may be. There  still remained the problem of the civil and  criminal proceedings  pending in the courts subordinate to  the  High Courts.   The other provinces of India and Pakistan  had  no such problem which the abolition of three provinces created. In order to declare the courts where the pending proceedings were  to  be tried and to specify the  jurisdiction  of  the courts and the effect of their orders and decrees the  Order was  made by the Governor General.  It was No. G. G. O.  11, dated August 12, 1947, and its relevant articles were:- " (3) Notwithstanding the setting up of the two  independent Dominions  of  India and Pakistan and the  creation  of  new Provinces by the Indian Independence Act, 1947,- (1)  all   proceedings   pending  immediately   before   the appointed  day in any of the Special Tribunals specified  in column 1 of the Schedule to this Order shall be continued in that  Tribunal as if the said Act had not been  passed,  and that Tribunal shall continue to have for the purposes of the said  proceedings all the jurisdiction and powers  which  it had immediately before the appointed day ; (2)  notwithstanding anything contained in any other law  to the contrary, any appeal from or application for revision of any order or sentence of the Tribunal in a case specified in column 2 of the Schedule to this Order shall lie to the High Court  specified in the corresponding entry in column  3  of the said Schedule; and (3)  effect shall be given within the territories of  either of  the two Dominions to any order or sentence of  any  such Special  Tribunal  as  aforesaid and of any  High  Court  in appeal or revision therefrom as if the order or sentence had been  passed  by a court of competent jurisdiction  in  that Dominion. (4)  Notwithstanding  the creation of certain new  provinces and the transfer of certain territories from the Province of Assam  to  the  Province  of  East  Bengal  by  the   Indian Independence Act, 1947,- 290 (1)  all   proceedings   pending  immediately   before   the appointed  day in any civil or criminal court (other than  a High  Court) in the Province of Bengal, the Punjab or  Assam shall be continued in that court as if the said Act had  not been  passed, and that court shall continue to have for  the purposes  of the said proceedings all the  jurisdiction  and powers which it had immediately before the appointed day.

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(2)  any  appeal or application for revision in  respect  of any  proceedings so pending in any such court shall  lie  in the court which would have appellate, or as the case may be, revisional  jurisdiction over that court if the  proceedings were instituted in that court after the appointed day; and (3)  effect shall be given within the territories of  either of  the  two  Dominions to any judgment,  decree,  order  or sentence of any such court in the said proceedings, as if it had been passed by a court of competent jurisdiction  within that Dominion.           THE SCHEDULE           (See Article 3) 1                      2                3 Special Tribunal    Cases            High Court First Special       All cases        The High Tribunal                             Court in Calcutta...                          Calcutta. Second Special      All cases        The High Tribunal                             Court in Calcutta.                            Calcutta. First Special  1.Crown v. Sohan Lal  The High Tribunal...      Bhayana, Shanta  Court of Lahore.         Nand, and Ram        East                 Lal Sharma.          Punjab.                2. Crown v. Major C.  The High                   A. Hunt, M. A.     Court in                   Sheikh  Hussain    Lahore.                  and Din and Naja-                  muddin.                             291 1                      2                    3                    3. Crown v. Major C.   The High                     A. Hunt, Subedar      Court in                     Sant Ram Bhatia       Lahore.                     and M. A. Sheikh. Second Special     1. Crown v. R. B. L.  The High Tribunal,              Padam  Chand   Court in Lahore....             Teela and another.  Lahore.                     2. Crown v. J. K. Gas  The High                       Plant Manufactur-    Court in                       ing Co., Ltd., Jug- Bombay.                       gilal Kamlapat                      (Rampur) Ltd., B.                       B. Mathur and                       S. K. Seth.                       3. Crown v. Juggilal   The High                        Kamlapat. Gas     Court in                        Plant Manufactur-   Bombay.                        ing Co., Ltd.,                        Juggilal Kamlapat                         (Rampur) Ltd.,                        Kailashpat Singhania,                        B. B. Mathur, and                        S. K. Seth.                        4. Crown v. Madanlal   The High                         Dalmia, Lakshmi       Court of                         Chand Jain, Rang       East                         Lal, Kishan Sax-       Punjab.                         ena, Ranchor Das                         Bagri, Ganga Das                         Mohta Ram Gopalss                         Daga, and Balabh                        Das. Third Special            All cases              The High Tribunal,                                       Court of

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Lahore.                                          East                                                  Punjab. Under  Art. 3 of the Order proceedings were to  continue  in the respective Special Tribunals but appeals 38 292 therefrom  lay  to  different High Courts  set  out  in  the Schedule  thereto and effect was to be given to  the  orders made  and sentences passed by the Tribunals or by  the  High Courts  to which the appeals lay within the  territories  of either  of  the  two Dominions as if the  ’orders  bad  been passed by a court of Competent jurisdiction in the  Dominion in  which effect was given.  Therefore  notwithstanding  the partition,  for  offences committed in any part  of  British India,  if  the  accused  were convicted  by  any  of  these Tribunals  whether  at Lahore or Calcutta  the  orders  were effective throughout India or Pakistan as the case may be. Now we come to Art. 4. An important fact to be kept in  view is  that  the  award  of the  Boundary  Commission  was  not published  till  August 17, 1947, i.e., two days  after  the appointed day.  Thus the two new provinces, East Punjab  and West  Punjab,  upto that date were comprised  of  whole  and undivided  districts as specified in Schedule 2 of  the  Act and  the  territorial  jurisdiction of  the  courts  of  the various  border  districts  was till then  unaffected  as  a result merely of the partition.  The non obstante clause  in Art.  4 refers to the creation of new provinces and  to  the transfer  of certain territories from the province of  Assam to  the province of East Bengal.  The language of cl.  1  of the article is of wide amplitude.  It comprises and  applies to  all pending proceedings in any civil or  criminal  court (other  than  a High Court) in the  erstwhile  provinces  of Bengal, the Punjab and Assam.  It declares that the  pending proceedings  would  Continue in the courts where  they  were pending  immediately  before August 15, 1947, and  qua  such proceedings   the  court  was  to  continue  to   have   the jurisdiction  it would have had as if the Act had  not  been passed,  i.e., three provinces had not ceased to  exist  and five  new  provinces had not come into  existence  in  their place  with  all  the consequential changes.   There  is  no indication  in  the first part which limits,  constricts  or circumscribes the amplitude of the words of that clause.  It contains  no  limitation  either  by  express  words  or  by implication.  The words "all proceedings" and "in any  civil or criminal court" are indicative of their comprehensiveness                             293 and  negative  the  idea  of a  mere  change  based  on  the territorial  jurisdiction  of  the court.  The  Act  in  its second schedule contemplated the division by whole districts and  it is well-known that the Punjab Government,  as  other Governments to be affected by the Act, had made an extensive survey  of the Punjab with a view to giving effect to the  " Cabinet formula " for dividing the province; charts had been prepared, survey maps of revenue estates, maps of the  canal irrigation  system and distribution of population  according to  religious  communities were prepared  by  the  cleverest officers  of  the  Government.  It was on  this  basis  that schedules in the Act were prepared.  The Award of Sir  Cyril Radcliffe  (as  be then was) shows that  little  change  was required  to  be made in the dividing line prepared  by  the Punjab  Government.   The major change was of  one  district minus  its  trans  Ravi  Tahsil.   It  is  significant  that whatever the intention was to imply a change in  territorial jurisdiction and its effect it was specifically so stated  ; e.g.,   Art.  3  of  the  Indian  Independence   (Income-tax

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Proceedings)  Order  of August 12, 1947, which  was  in  the following terms : "  Where before the appointed day the jurisdiction of a  tax officer  under  the  relevant Tax Act has  been  altered  in connection with the setting up of the Dominions of India and Pakistan,  or where after the appointed day the case  of  an assessee  is transferred from one Dominion to the  other  by agreement  between the Central Board of Revenue of  the  two Dominions, and by reason of such alteration of  jurisdiction or  transfer the case of an assessee falls to be dealt  with on  or  after the appointed day by the  tax  authorities  of India,  or as the case may be, of Pakistan, all  proceedings relating  to  the case pending before any tax  authority  of Pakistan,  or  as  the  case  may  be  of  India,  shall  be transferred to the corresponding tax authority of India,  or as the case may be of Pakistan, and shall be disposed of  by the last mentioned tax authority in accordance with law ". Respondent also relied on the fact that by unilateral action Pakistan bad by statute made the decrees of 294 Indian  courts  including East Punjab  ineffective  in  West Punjab and that an Indian Act had made similar provision  as to   decrees  against  the  Government.   This   is   hardly indicative  of  the  true meaning of art. 4 but  if  it  can afford  any  indication  it only  supports  the  appellants’ contention  that,, all proceedings" in Cc any court  "  were words  of wider connotation.  But limitation is sought  from the words of the second part of the clause : " and that court shall continue to have for the purposes  of the  said proceedings all the jurisdiction and powers  which it had before the appointed day ". These words have no  such effect and do not circumscribe the amplitude of the language of the first part of the clause.  They are merely dispersive of  the  doubts  which a strict adherence to  the  rules  of private International Law as accepted in courts founded upon the principle of effectiveness and submission might cast  on the  extent of jurisdiction and powers of the courts of  the new   provinces  where  pending  proceedings  were   to   be continued. The  language  of  arts.  3 and 4 of  the  Order  is  almost identical except that there is no mention of the transfer of territory  from  Assam to East Bengal  in  the  non-obstante clause  of  art. 3 and the three provinces  of  Bengal,  the Punjab and Assam are not mentioned in cl. 1 of that  article because  in the context they were irrelevant.  The words  in art.  3  must necessarily have wide  amplitude  because  the cases before the tribunals related to offences committed  in various  parts  of  India.  Is there any reason  to  give  a different  and  constricted meaning to those same  words  in art. 4 of the Order.  The mention of the three provinces was necessitated  by  their  ceasing to exist.   But  the  words emphasised by the respondent in the second part of cl. 1  of art.  4, i.e., " for the purposes of the said proceedings  " are common.  They only mean that qua the proceedings pending in the particular court the jurisdiction and powers were  to remain  the same as they were before the division.  The  use of these words only carries out the intention of the  makers of the                             295 Order and subserves the objects of the Act, i.e.,  providing machinery   for  an  orderly  continuance  of   the   normal functioning of the judicial system. Under  the Civil Procedure Code the jurisdiction  of  courts was  not  based only on effectiveness or submission  but  on location of property, cause of action or residence.   Unless

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expressly   or   impliedly   taken   away   ordinarily   the jurisdiction and powers of a Court conferred under a Statute continue  if the Court continues to exist and that  is  also the  principle  of s. 9 of the Civil  Procedure  Code.   The general doctrine of English law is that in the absence of an Act  of  Parliament the exercise of  civil  jurisdiction  is founded  upon one of the two principles-of effectiveness  or submission,  i.e., either the subject-matter of suit  is  in England  or the defendant is present at the time of  service of  the  writ in England.  If neither of these  elements  is present the maxim actor sequitur forum rei applies: Cheshire on  Private International Law, pp. 139-40 (3rd Ed.);  Sirdar Gurdyal Singh v. Rajah of Faridkote (1) where this  position has  been clearly stated.  In that case it was held that  in all personal actions the courts of the country in which  the defendant  resides, not the courts of the country where  the cause of action arose, should be resorted to.  The defendant there was residing in and was domiciled in the State of Jind and  at the date of the suit had ceased to be a resident  of Faridkote  which  passed the decree based on  the  cause  of action  arising  there.   Such decrees it was  held  were  a nullity  under International law.  The Privy Council  at  p. 185 said :- "  The general rule is " that the plaintiff must sue in  the court to which the defendant is subject at the time of  suit Actor  sequitur  forum rei which is rightly  stated  by  Sir Robert  Philli more (International Law, Vol. 4, p.  891)  to lie  at the root of all international and of  most  domestic jurisprudence on this matter.  All jurisdiction is  properly territorial, and " extra territorium jus dicenti, impune non paretur  ". Territorial jurisdiction attaches (with  special exceptions)   upon   all  persons  either   permanently   or temporarily (1)  [1894] 21 I.A. 171. 296 resident within the territory while they are within it ; but it  does not follow them after they have withdrawn  from  it and when they are living in another independent country.  It exists  always as to land within the territory ; and it  may be  exercised  over moveables within the territory,  and  in questions  of status or succession governed by domicile,  it may  exist as to persons domiciled or who when  living  were domiciled,  within  the  territory.   As  between  different provinces  under  one sovereignty (e. g.,  under  the  Roman Empire) the legislation of the sovereign may distribute  and regulate  jurisdiction ; but no territorial legislation  can give jurisdiction which any foreign court ought to recognise against  foreigners, who owe no allegiance or  obedience  to the Power which so legislates ". Thus  jurisdiction may be conferred by Statute as under  the Code  of  Civil  Procedure or it may be  based  on  the  two principles  of English Law above stated.  If the latter  are the  exclusive guides in the matter of competence then  mere accrual  of  cause  of  action  will  not  make  the   court competent.    Obviously  therefore  arts.  3  &  4   are   a recognition of the rule above stated which would remove  any doubts created as a result of the division of the  provinces and  of  difficulties resulting therefrom.  We  cannot  lose sight  of  the fact that the people of the province  of  the Punjab  divided  into West and East Punjab and  so  also  of Bengal  were so intertwined both in regard to  relationship, succession,  property and business dealings that if no  such provision  had been made it would have led  to  uncertainty, hardships and chaotic conditions, which would equally be the consequence  of  the  interpretation contended  for  by  the

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respondent. If  the interpretation contended for by the respondent  were accepted in every case the litigant would have had to decide whether  his  suit  could be continued or  was  hit  by  the principles  above discussed, a decision which  is  difficult anywhere  more  so  in the Courts subordinate  to  the  High Courts.  The absence of a provision made in the Order  would have created an almost impossible position in regard to most 297 proceedings.   Even  in  the  case  of  suits  dealing  with immoveable  property the difficulty would have arisen  where property  was  situated in the jurisdiction of  more  courts than  one, the courts being in the two new provinces of  the Punjab,  e.g., suits for partition of property,  succession, enforcement of mortgages and declarations of title under the provisions   of  the  Punjab  Land  Revenue  Act.    Greater uncertainty  would  have arisen in cases  where  decrees  of original  courts  were under appeal in districts  and  still more in suits where preliminary decrees had been passed  and final  decrees  remained  to be made.  Even in  cases  of  a matrimonial  or testamentary nature, in cases  dealing  with guardianship   and   custody   of   infants,    maintenance, restitution  of conjugal rights and suits of a  like  nature the  absence of a provision like art. 4 of the  Order  would have  created  almost  unsurmountable  difficulties.   These cases  are illustrative of the various kinds of  proceedings which  had  to  be  provided  for.   In  order  to  overcome difficulties  and remove doubts and hardships the Order  was made  by  the Governor-General in such general  terms  using language of wide amplitude.  Thus the necessity to start new proceedings, pay fresh court fees and have fresh trials  was obviated. This interpretation is strengthened by reference to criminal cases.  The jurisdiction of criminal courts under Chapter XV of the Criminal Procedure Code is dependent upon variety  of circumstances  any  one  of  them could  give  rise  to  the conflict  of jurisdictions.  One of the simplest case  would be  the  trial of an offender where a case  was  transferred from one district to another and the two districts fell into different  provinces.   His  trial could  not  be  continued without  cl.  1 of art. 4 nor  conviction  become  effective without cl. 3. The absence of a provision like art. 4 of the Order   would  lead  to  inconvenience  if   not   confusing situations in cases where a person could, under the Criminal Procedure  Code,  be tried in different courts  of  the  two Punjabs  and  the  rules of  International  Law  supervened. Instances  could be multiplied in regard to  criminal  cases where but for the wider meaning given 298 to  the article the legality of the proceedings  would  have seriously been jeopardized. The  third  clause  of art. 4 is  couched  in  equally  wide language and it had necessarily to be so and was meant to be so, the object being remedial and to effectuate the  orders, decrees and sentences passed by courts.  Without this clause the  first clause would have been of little purpose  because if the judgments, decrees and sentences passed by courts  of one part of the Punjab were to be treated merely as  foreign judgments then the whole object of the Order would have been defeated.   It  has  to be emphasised  that  in  the  Orders relating  to  the Federal Court and to the  High  Courts  of Calcutta and Lahore which have been discussed in a  previous part of this judgment effect was given to the judgments  and orders  of  one court as if they were the judgments  of  the other court also and this was recognised in the judgment  of

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the  Federal  Court  in  Midnapare  Zemindary  Co.  Ltd.  v. Province  of Bengal & Others (1).  Similar words used  must, in  the absence of any indication to the  contrary,  receive the  same meaning and it is significant that Parliament  has used   the  same  words  in  a  later   Statute-The   Indian Independence Pakistan Courts (Pending Proceedings) Act IX of 1952.  which was passed to make ineffective the  orders  and decrees  of Pakistan courts passed by virtue of the  Special Orders  under the Act for the continuance of proceedings  in courts in Bengal, Assam and the Punjab.  By s. 3 of that Act (IX of 1952) it was provided:- "  Section 3. Notwithstanding anything contained in  any  of the  orders referred to in s. 2, no decree to which the  Act applies  shall be given effect to by any court or  authority in  India in so far as such decree imposes any liability  or obligation on any Government in India ". This  recognises  the force of art. 4(3) of  the  Order  and there  is no indication in that Statute that Parliament  was dealing  with  the limited territory contended  for  by  the respondent. It was argued that the intention of cl. 3 of art. 4 (1)  [1949] F.C.R. 309.                             299 was  that the court passing the decree or order would  be  a court  of competent jurisdiction within s. 13 of  the  Civil Procedure Code and the question of jurisdiction of the court passing  the  decree would not be available  to  the  losing party, the submission being that the word " effect " did not mean the same thing  as " execute ". It  may be pointed out that the respondent never raised,  at the  trial,  the  question of  jurisdiction.   He  submitted voluntarily  to the judgment of the Lahore Court and he  can at  no later stage be heard to say that the judgment is  not binding  on him: Cheshire on Private International  Law,  p. 140  (3rd Ed.). The word effect " is wider than the words  " enforce  "  or execute ". There are decrees  which  are  not executed  in  the ordinary sense of the term but  are  given effect  to;  e.  g., decrees for  dissolution  of  marriage, restitution of conjugal rights and injunction.  In  criminal matters  it  would  mean carrying out the  sentence  of  the court.   It was for these reasons that the word "  effect  " was used in cl. 3 of arts. 3 and 4 of the Order.  After  the partition all these courts situated in the two new provinces of  West  Punjab and East Punjab became foreign  courts  qua each  other  and therefore certain judgments  and  sentences passed  and  orders made in regard to certain cases  in  the absence  of the Order might no longer have  been  effective. As  has  already  been stated it was to  provide  for  these difficulties  and for removing all doubts as to  the  juris- diction of courts in the provinces which had cased to  exist that  art. 4 was promulgated and a  consequential  provision had  to be made to give effect to these various decrees  and orders.   That decrees passed in courts of one new  province of  the Punjab were to be treated as if they were passed  by the  courts  of  competent jurisdiction  in  the  other  new Province  of  the Punjab is shown by the language  used  and particularly  the  words " court of  competent  jurisdiction within  that  Dominion  ".  The use of  the  words  is  very significant.  Similar words were used in cl. (3) of art.;  3 where  also effect was, to be, given. to the  orders  passed by, the Special Tribunal sitting in 300 Lahore in regard to offences which might have been committed anywhere  in  India.  It has not been suggested  that  those words  were  of  lesser  amplitude  and  did  not  make  the

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conviction  good  in any part of India or  Pakistan  or  the conviction was ineffective anyWhere in those two  Dominions. It  might  be  repetitive  as an  argument  but  is  equally efficient in the case of cl. 3 of art. 4 as it was in cl.  3 of the third article. It was also argued that a court of competent jurisdiction in cl.  3 was used in the same sense as in  International  Law, i.e.,  a  court which has the right to adjudicate  upon  the matter.   In  the  context it can only  mean  the  court  as envisaged in cl. 1 of art. 4 or a court of similar and equal or  co-ordinate  jurisdiction but exercising  it  under  the Civil Procedure Code or Criminal Procedure Code in either of the  Punjabs in the two Dominions as the case may be.   This would clearly show that the effect of art. 4(1) and (3)  was that all proceedings meaning all suits and other proceedings would continue unaffected by the passing of the Act and  the setting  up of two provinces of West Punjab and East  Punjab and  also  that  once  a  decree  was  passed.  or  sentence pronounced by a court in either of the new provinces of  the two  Dominions it was to be given effect to as if it  was  a decree or order passed by a court of competent  jurisdiction in the other Dominion. Submission  was then made that in cl. 2 of art. 4  reference to  any  appeal or to the court which would  have  appellate jurisdiction  did not include the Federal Court of  Pakistan because it was not in existence at the time and the  Federal Court  which came into existence as a result of the  Federal Court Order was a court of limited jurisdiction.  The word " appeal " there cannot be read as confined to only one appeal because the provision made for appeals is that it shall  lie in the court having appellate jurisdiction over the court as if proceedings were instituted after the appointed day,  and for  proceedings  instituted after, the  appointed  day  the jurisdiction of the Privy Council had been conferred by  the laws of Pakistan on the 301 Federal Court of Pakistan.  In these circumstances it  would be contrary to the intention of the words used in the  Order to restrict the appeals to the District Judge or to the High Court  but  they  must be taken to include  appeals  to  the highest court to which appeals could be taken. It  was  then submitted that at the time when the  suit  was filed  the jurisdiction of the Federal Court was  a  limited one and no such appeal as was subsequently taken could  have been taken to that court at that time.  The Federal Court of Pakistan  was undoubtedly a court of appellate  jurisdiction over  the courts including the High Courts even  though  its jurisdiction  fell under s. 205 of the Government  of  India Act,   1935.    The  meaning  of  the  words   "   appellate jurisdiction " as used in cl. (2) of art. 4 of the Order  is not  affected by the subsequent extension of restriction  of the  jurisdiction  of  the court because the  scope  of  the appellate  jurisdiction  may vary from time to time  but  it still   remains  appellate  jurisdiction.    See   Midnapore Zemindary Co. Ltd. v. Province of Bengal and Others (1). The  next question for decision is whether as a  consequence of evacuee legislation in Pakistan the appellant No. 2  lost his rights in the decree.  The respondent contended that  by s.  6  of the Pakistan Administration  of  Evacuee  Property Ordinance,  1949 (Act XV of 1949), the decree must be  taken to  have vested and be deemed always to have vested  in  the Custodian  with  effect from March 1, 1947.  The  decree  in dispute  was passed by the Senior Subordinate Judge in  1949 and  no  claim was made by the Lahore Custodian  of  Evacuee Property in regard to it nor is there any proof that he  has

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done  so up to the present.  Under s. 13 it was open to  the Custodian  to  publish,  by  notification  in  the  official gazette,  this decree in the list of evacuee properties  but it  has not been shown that that has been done.  Section  11 of that Ordinance which was in the following terms was  how- ever relied upon by the respondent:- " Section 11(1).  Any amount due to an evacuee (1)  [1949] F.C.R. 309. 302 or payable in respect of any evacuee property, shall be paid to the Custodian by the person liable to pay the same ". It  is true that if the decree is evacuee property  and  has vested in the Custodian then the Custodian can claim payment from the judgment debtor.  The appellant urged two  points:- (1)  that  the situs of the decree was the  place  where  it could be effectuated and therefore where the debtor  resides and (2) it was for the Custodian to decide as to whether  it was  evacuee property or he had made no such  decision.   If anything  the  decree  had never  been  treated  as  evacuee property  by  the  Custodian and it could no  longer  be  so treated  because of s. 3 of the Pakistan (Administration  of Evacuee Property) Act, 1957 (XII of 1957), the relevant part of which is as follows:- "  Section  3(1).   Property not to be  treated  as  evacuee property  on  or after 1st January, 1957  :  Notwithstanding anything  contained in this Act, no person or  property  not treated as evacuee or as evacuee property immediately before the first day of January, 1957, shall be treated as  evacuee or, as the case may be, as evacuee property, on or after the said date ". As to the situs of the decree Mr. Pritt  relied on certain English cases which deal with the situs of a con- tract  debt  and  referred to the following  cases:  In  re, Russian   Bank   for  Foreign  Trade  (1);   Sutherland   v. Administration  of German Property (1); ’The  Jupiter’  (3). In  this court in Delhi Cloth & General Mills Co.   Ltd.  v. Harnam  Singh & Others (4) it was held that situs varies  in the  case of simple contract debts.  At page 423  Bose,  J., observed:- "  But when all is said and done, we find that in every  one of  these cases the proper law of the contract was  applied, that is to say the law of the country in which its  elements were  most  densely  grouped and with  which  factually  the contract was most closely connected ". Applying  these  rules it would appear that the situs  of  a contract debt would be where the defendant (1)  [1933] 1 Ch. 745. (2)  [1934] 1 K.B. 423. (3)  [1927] P. 250. (4)  [1955] 2 S.C.R 402. 303 resides.   But  it was submitted by the  learned  Solicitor- General that the situs of the decree or judgment is where it was recorded and reliance was placed on Attorney-General  v. Bouwen(1).   According  to  Dicey’s Conflict  of  Laws  (7th Edition)  p.  506,  judgment debts  are  situate  where  the judgment   is   recorded   and   according   to   Cheshire’s International Law p. 456:- "  With  regard to this theory there can, of course,  be  no doubt  that  a  debt  is deemed by English  law  to  have  a definite locality of its own for several different purposes, such  as the exercise of jurisdiction, the payment of  death duties,   and  the  grant  of  probate  or  of  letters   of administration ", and again pp. 519-520:-     "  For the purposes of jurisdiction to make a  grant  of probate or administration, however, it has long been settled

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with  respect  to chooses in action and titles  to  property that  judgment  debts  are  assets  where  the  judgment  is recorded;  leases,  where the land  lies;  specially  debts, where  the  instrument happens to be;  and  simple  contract debts,  where  the  debtor  resides  at  the  time  of   the testator’s death ". The authority for this is an observation of Lord Abinger, C. B.,  in  Attorney-General  v. Bouwen  (1)  from  where  this passage  has been taken.  That was a case of a claim by  the Crown  for  probate duty on foreign securities held  by  the testatrix  at  the time of her death and  the  question  for decision was whether for the purposes of administration they were  assets locally situate within the jurisdiction of  the Ordinary.  As they were sold and delivered by the  executors without doing any act outside the jurisdiction of the  Ordi- nary,  duty  was  payable  in  England.   The  above  quoted observation   was  made  in  connection  with  the   limited jurisdiction  of  the Ordinary.  Thus it  appears  that  the reason given by Lord Abinger for a judgment or decree having its  situs  where  it is recorded is  that  it  is  normally enforceable  in  the country in which it is given;  for  the purposes of jurisdiction for the grant of probate,  judgment debts are assets where the judgment is recorded.  But in the present case by a fiction (1)  (1838) 4 AL & W. 172; 150 E.R. 1390, 1398. 304 of  law  the decree is also decree of a court  of  competent jurisdiction  in what was the Dominion of India and now  the Union  of India.  Consequently the provision of the  evacuee law  will not affect the rights of the appellant to  execute the  decree in this country.  Secondly for the  purposes  of jurisdiction to grant probate a judgment debt may have situs in the country where it was recorded but as was pointed  out by  this Court in Delhi Cloth & General Mills Case (1),  the most densely grouping of elements may also have to be  taken into  account  and  in the  peculiar  circumstances  of  the present  case  where  the judgment-debtor  is  residing  and domiciled  in  East  Punjab  where  the  judgment  debt   is enforceable , the situs of the judgment-debt would not  only be  in  Pakistan.   Furthermore the  judgment-debtor  is  an evacuee  qua  Pakistan and his property, if any,  must  have equally  vested in the Custodian and the only country  where the decree can be enforced will be in India. No  argument was addressed in support of the finding of  the High Court that a transfer and non-satisfaction  certificate was  necessary to execute the decree of the Federal  Court,. In  the view that I have taken of art. 4(1) and (3) no  such objection is sustainable.  Even if Order 45, Rule 15,  Civil Procedure Code may be inapplicable the High Court could  and should have sent down the decree to the court of the  Senior Subordinate   Judge,  Simla,  to  execute  the   decree   in accordance with law. To sum up I am of the opinion that (1) the amplitude of  the language  of  art.  4 is not cut down by any  words  in  the article  or  in the Order and therefore the  decree  of  the courts   of  West  Punjab  passed  in  proceedings   pending immediately  before  the  appointed  day  are  not   foreign judgments  in  East Punjab and  the  limited  interpretation contended for by the respondent is not sustainable. (2)  The decree  of the Federal Court of Pakistan is covered  by  the words  " appellate jurisdiction " in cl. 2 of art. 4 of  the Order. (3) The word " effect " in cl. 3 of art. 4 is of wide connotation  and  is not equivalent to ’being  enforced’  by suits on a (1)  [1955] 2 S.C.R. 402.

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                           305 foreign judgment. (4) Clause 3 of art. 4 is in the nature of a deeming clause and makes the decree of the Pakistan  court (West Punjab) a decree of a court of competent  jurisdiction in  East Punjab (India). (5) Situs of the decree is  not  in Pakistan  alone but the legal fiction applies to that  also, and  (6)  the evacuee A laws of Pakistan do not  affect  the effectiveness of the decree in India. I  would  therefore  allow this appeal  and  set  aside  the judgment  and order of the High Court.  The appellants  will have their costs throughout. BY  COURT: In view of the majority Judgment, the  appeal  is dismissed with costs.                                   Appeal dismissed.                  ___________________