The Associated Hotels of India Ltd. and Another vs R. B. Jodha Mal Kuthalia

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 320/58

Decision Date: 23 August 1960

Coram: P.B. Gajendragadkar, Bhuvneshwar P. Sinha, J.L. Kapur, K.N. Wanchoo, K. Subba Rao

The Supreme Court of India delivered its judgment on the matter styled The Associated Hotels of India Ltd. and Another versus R. B. Jodha Mal Kuthalia on 23 August 1960. The decision was authored by Justice P. B. Gajendragadkar, with the bench comprising Justices Bhuvneshwar P. Sinha, J. L. Kapur and K. N. Wanchoo. The petitioners were The Associated Hotels of India Ltd. together with its managing director, Mohan Singh Oberoi, and the respondent was R. B. Jodha Mal Kuthalia. The case is reported in 1961 AIR 156 and 1961 SCR (1) 259, with citator reference R 1975 SC 824 (27). The issues involved the partition of India, the creation of the Dominions of India and Pakistan, the formation of new provinces and transfer of territories, and whether a decree passed by the Federal Court of Pakistan could be executed in India in view of the Indian Independence Act 1947, section 9, and the Indian Independence (Legal Proceedings) Order 1947, article 4, clauses 1, 2 and 3, together with Order 45, rule 15 of the Code of Civil Procedure 1908.

On 2 October 1946 the petitioners entered into an agreement with the respondent to purchase certain property for a price of Rs 52,75,000, paying Rs 5 lacs as earnest money. The sale could not be completed because the respondent’s title to the property was later found to be defective. Consequently, the petitioners instituted a suit before the Court of the Senior Subordinate Judge at Lahore seeking recovery of Rs 5,10,000, which represented the earnest money together with accrued interest. The trial court decreed that Rs 5,08,333 5⁄4 together with future interest should be paid in favour of the second appellant on 14 March 1949, while rejecting the claim of the first appellant. The respondent appealed, and the Lahore High Court reversed the trial decree and dismissed the suit on 21 November 1949. On further appeal, the Federal Court of Pakistan allowed the second appellant’s appeal on 21 December 1953 and reinstated the trial decree in his favour. After the trial decree but before the Lahore High Court rendered its decision, the petitioners commenced execution of the decree. The respondent obtained a stay of execution on the condition that he deposit Rs 3,00,000 in the High Court and provide security for the remaining decretal amount. During the execution proceedings and after the Federal Court’s decree, the principal issue that arose, among others, was whether the deposited sum of Rs 3,00,000 should be applied to satisfy the Federal Court decree and subsequently transferred to India for payment to the decree‑holder, or whether the custodian of evacuee property in Pakistan was entitled to retain the sum as evacuee property. Both the decree‑holder and the judgment‑debtor were agreed on this point.

The parties agreed that the sum of money in dispute vested in the decree‑holder and that, as he requested, the amount should either be sent to India or be paid to him directly. The custodian opposed this request, and the High Court ruled that the money could not be transferred to India. Instead, the Court ordered the custodian to state what interest, if any, any evacuee might have in the money. In this situation the appellants filed an application before the Punjab High Court (India) invoking Order 45 rule 15 and section 151 of the Code of Civil Procedure. They prayed that the proceedings between the parties for the execution of the decree be transmitted to the Court of the Senior Subordinate Judge at Simla, and that the decree be executed in accordance with the rules that apply to original decrees passed by that Judge. The appellants argued that, by virtue of Article 4(3) of the Indian Independence (Legal Proceedings) Order, 1947, the decree granted by the Federal Court of Pakistan in favour of appellant No. 2 had become enforceable in India as if it had been issued by the Supreme Court of India. The respondent opposed this contention on several grounds. First, it asserted that the application was not maintainable. Second, it claimed that the decree could not be executed without a certificate as required by Order 21 rule 6(b) of the Code of Civil Procedure. Third, it maintained that the decree did not fall within the scope of Article 4(3) of the Order. Finally, the respondent argued that, because the decree had vested in the Custodian of Evacuee Property, appellant No. 2 was not entitled to enforce it. The Court then recited the relevant portion of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, which provides: “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 the Court shall retain for the purpose of those proceedings all the jurisdiction and powers it possessed immediately before the appointed day; (2) Any appeal or application for revision in respect of any such pending proceedings shall be made to the court that would have appellate or, as the case may be, divisional jurisdiction over that court had the proceedings been instituted after the appointed day; and (3) Effect shall be given within the territories of either Dominion 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 observed that the decree sought to be executed fell within the ambit of Article 4(1) of the Order, it concluded that the decree could be enforced pursuant to Article 4(3).

The Court observed that, under the order, the expression “court of competent jurisdiction” was intended to designate the Senior Subordinate Judge at Simla. Consequently, the appellants were required to present their application to that judge, invoking Order 45, Table 15 of the Code of Civil Procedure. The High Court held that the appellants’ filing was defective because it did not contain the certificate mandated by Order 21, rule 6(b) of the Code. In addition, the High Court found that the judgment debt in question constituted immovable property whose situs lay in Pakistan, that the decree had been transferred to the Custodian of Evacuee Property at Lahore, and that, as a result, the decree could not be executed by the appellants in the Indian courts. Relying on these conclusions, the High Court dismissed the appellants’ petition filed under Order 45, rule 25, holding that the court lacked the authority to enforce a decree that was vested in a custodial authority in another Dominion and that the procedural requisites for such an application had not been fulfilled.

The appellants appealed the order and sought a certificate from the High Court. In a dissenting judgment, Kapur J. examined whether the provisions of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947 applied to the decree the appellants were trying to enforce. He concluded that the specific decree fell outside the scope of Article 4, which was designed to govern only those pending proceedings that, at the date of the Indian Independence Act, were pending before courts whose jurisdiction might otherwise have been altered by the passage of the Act or by the transfer of territories. Kapur J. explained that Article 4(1) could not be stretched to cover proceedings in which the trial‑court’s jurisdiction remained unchanged despite the political changes. He further clarified that appeals from judgments or orders arising out of such proceedings would be taken in exactly the same manner as if the original suit had been instituted after the appointed day, thereby preserving the ordinary appellate procedure. The Court noted that the authorities cited—namely 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; and Naresh Chandra Bose v. Sachindra Nath Deb and Ors, A.I.R. 1956 Cal. 222—were not applicable to the present fact pattern because those decisions dealt with situations where the trial court’s jurisdiction had been directly affected by the enactment of the Indian Independence Act or by territorial adjustments, which was not the case here.

Kapur J. further reasoned that the High Court should have transmitted the decree to the Senior Subordinate Judge at Simla for execution in accordance with the law, since that judge was the court of competent jurisdiction identified by the order. He emphasized that the effect of Article 4(1) together with Article 4(3) was to ensure that “all proceedings”—that is, every suit and other legal proceeding—would continue undisturbed by the enactment of the Indian Independence Act and by the creation of the two new provinces, West Punjab and East Punjab. Moreover, once a decree or sentence was pronounced by a court in either of the newly formed provinces, the order required that the decree be given effect as if it were a decree issued by a court of competent jurisdiction in the other Dominion. Kapur J. stressed that the broad language of Article 4 was not narrowed by any qualifying words elsewhere in the article or in the order. He further observed that the term “appellate jurisdiction” used in clause (2) of Article 4 was not altered by any subsequent restriction on the court’s authority, and therefore the decree of the Federal Court of Pakistan was deemed, by operation of the order, to be a decree of a court of competent jurisdiction within the Dominion of India, rendering it enforceable in India despite its original source in Pakistan.

The Court explained that the term “effect” used in clause (3) of Article 4 is broader than the expressions “enforce” or “execute”. The word does not mean that a foreign judgment is being enforced by a suit in the domestic courts. Clause 3 of Article 4 functions as a deeming provision; it treats the decree issued by the Federal Court of Pakistan, which was situated in West Punjab, as if it were a decree of a court possessing proper jurisdiction in East Punjab, that is, in India. Consequently, the legal place, or situs, of the decree was not confined to Pakistan alone. By operation of this legal fiction, the decree was regarded as an order of a competent court within the Dominion of India. The Court further held that the statutes governing evacuees in Pakistan did not prejudice the appellant’s entitlement to have the decree executed in India.

The matter before this Civil Appeal, numbered 320 /58, arose from an appeal filed on 22 January 1957 against an order of the Punjab High Court in Civil Miscellaneous proceeding 24/C of 1955. Counsel for the appellants comprised several advocates, while the respondent was represented by senior legal officers of the Government. The judgment was delivered on 23 August 1960 by a bench consisting of the Chief Justice and several other judges, with Justice Gajendragadkar authoring the principal opinion and Justice Kapur delivering a separate judgment. The appellants, The Associated Hotels of India Ltd. and its Managing Director, Mohan Singh Oberoi, had sought to enforce a decree of the Federal Court of Pakistan in their favour against Jodha Mal Kuthalia. They filed an application under Order 45, Rule 15 of the Civil Procedure Code before the Punjab High Court to enforce that decree. The High Court dismissed the application, but the appellants subsequently applied for a certificate of appeal under Article 133(1)(a) and (c) of the Constitution. That certificate was granted, enabling them to bring the present appeal before this Court.

The factual background relevant to the application under Order 45, Rule 15 began with an agreement dated 2 October 1947, whereby the respondent agreed to sell the property known as Nedous Hotel in Lahore to the appellants for a purchase price of Rs 52,75,000. In accordance with the terms of the agreement, the appellants paid the respondent an earnest sum of Rs 5,00,000. Later it emerged that the respondent’s title to the hotel was defective, rendering the sale impossible to complete. As a result, the appellants instituted suit before the Senior Subordinate Judge at Lahore, seeking recovery of Rs 5,10,000. This claim comprised the Rs 5,00,000 already paid as earnest money together with interest that had accrued thereon up to the date the suit was filed.

In the original suit, the trial judge entered a decree awarding appellant 2 the sum of Rs 5,08,333‑5‑4 together with future interest calculated at five per cent per annum, while dismissing the claim of appellant 1. The respondent challenged this decree before the Lahore High Court, which upheld the respondent’s objections, set aside the decree in favour of appellant 2 and dismissed the appellants’ suit, also ordering costs against them. The appellants then appealed to the Federal Court of Pakistan; that court reversed the High Court’s decision, restored the trial‑court decree for appellant 2 and issued its order on 21 December 1953. The present application, filed in the Punjab High Court under Order 45, rule 15, sought to enforce that Federal Court decree. While the litigation continued in the Pakistani courts, several further steps concerning the execution of the decree occurred. After the trial judge’s decree but before the Lahore High Court rendered its decision, the appellants began to execute the decree, prompting the respondent to seek a stay of execution before the Lahore High Court. The High Court stayed the execution on the condition that the respondent deposit Rs 3,00,000 with the Court and provide security for the remaining decretal amount. The respondent complied with both requirements. Subsequently, when the Lahore High Court allowed the respondent’s appeal, the respondent applied for a refund of the amount he had deposited; this application was granted on 16 December 1949. On the same day the High Court ordered that notice of its order permitting the refund be communicated to the Custodian. The Custodian then moved the High Court on 20 December 1949 for a review of that order, contending that the deposited sum represented evacuee property and therefore vested in his custody. These proceedings remained pending when the appellants presented their appeal before the Federal Court. After the Federal Court reinstated the decree in favour of appellant 2, the pending High Court proceedings were resumed for final determination. At that juncture, the respondent filed an application before the High Court requesting that the deposited Rs 3,00,000 be applied towards satisfaction of the Federal Court decree in favour of appellant 2, and he also sought to withdraw his earlier request for the return of the deposit (recorded as RFA No. 31 of 1949). In response, appellant 2 filed Civil Miscellaneous Application No. 120 of 1954, praying that the same amount either be transferred to India, or, if transfer proved impossible, that the Custodian be deemed not entitled to the sum and that it be paid either to the decree‑holder in Lahore or to any other person legally entitled to it. The High Court considered these two applications together with the Custodian’s original petition for review of the order allowing a refund. The Court observed 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 that holder, while the Custodian continued to resist the prayer. The Court then referred to section 4 of the Pakistan Transfer of Evacuee Deposits Act, 1954, which provides that a deposit made in a civil proceeding to which an evacuee was entitled and in which …

In the proceedings before the High Court, the appellant filed a Civil Miscellaneous Application numbered 120 of 1954 seeking the disposition of the sum of three hundred thousand rupees that had been deposited by his judgment‑debtor. The appellant requested that the amount be transferred to India; alternatively, if such transfer was not possible, he asked that the Court hold that the Custodian was not entitled to the sum and that it should instead be paid to the decree‑holder located in Lahore, or to any other person who might have a proper claim to it. Together with this request, the two applications were heard alongside the original petition filed by the Custodian, which sought a review of the High Court’s earlier order that had allowed a refund to the respondent. The High Court observed that both the judgment‑debtor and the appellant concurred that the sum in dispute vested in the decree‑holder and therefore ought either to be transmitted to India or to be paid directly to that holder. Nevertheless, the Custodian opposed the appellant’s prayer. Under section four of the Pakistan Transfer of Evacuee Deposits Act, 1954, a deposit arising from a civil suit in which an evacuee was entitled and in which no Muslim party was interested could be transferred to India, provided that the court was satisfied that none of the persons interested in the deposit was a non‑evacuee. The appellant relied on this provision, asserting that he was an evacuee and therefore entitled to the transfer. The High Court, however, examined whether the three hundred thousand rupees belonged exclusively to the appellant. After reviewing the records, the Court concluded that, although the decree was in the appellant’s name, the money actually belonged to Associated Hotels Limited. The Court noted that the shareholding of Associated Hotels Limited included Muslims and non‑evacuees, and that this fact was not denied. The appellant argued that because the decree bore his name he alone could enforce it and that no question of title could arise before the Court. The Court rejected this contention and dismissed the appellant’s request for transfer of the deposit. It was difficult to understand how the High Court could re‑examine the title of the appellant when a decree had already been issued by the Federal Court, yet the Court proceeded on the basis that, since Associated Hotels Limited—whose shareholders comprised Muslims and non‑evacuees—was the true owner of the deposit, the appellant could not claim a right to transfer the money to India. Consequently, the High Court allowed the Custodian’s application, set aside its earlier order for a refund to the respondent, and addressed the remaining two prayers of the appellant. Regarding those prayers, the Court observed that, under section thirty‑four of the Pakistan Administration of Evacuee Property Ordinance, only the Custodian was authorized to determine the interest, if any, that an evacuee might have in the disputed deposit, and thus the matter was left to be decided after the Custodian gave its findings.

The Court observed that the Custodian was to decide whether any evacuee possessed an interest in the disputed deposit, and therefore the question was left for determination by the Custodian. Consequently, the Court directed that the prayers advanced by appellant 2 could be decided only after a notice was issued to the Custodian and after the Custodian returned its findings on the issue it had framed. The order effecting this direction was dated 20 January 1956. In the circumstances created by that order, the appellants filed the present application before the Punjab High Court invoking Order 45, Rule 15 of the Code of Civil Procedure. The appellants contended that, pursuant to section 4(3) of the Indian Independence (Legal Proceedings) Order, 1947 (hereinafter “the Order”), the decree granted in favour of appellant 2 by the Federal Court of Pakistan had become enforceable in India as if it had been issued by the Supreme Court of India. On that basis they relied on Order 45, Rule 15 and sought a direction that the High Court transmit to the Court of the Senior Subordinate Judge, Simla, the records of the inter‑party proceedings so that the decree could be executed in the manner prescribed for the execution of the original decree passed by that Judge. The appellants also made an alternative prayer that the same order be issued under the High Court’s inherent jurisdiction, namely section 151 of the Code. The respondent opposed the application on several grounds. It argued that neither Order 45, Rule 15 nor section 151 of the Code was applicable, that the decree could not be executed, and that the application could not be entertained because the required certificate under Order 21, Rule 6(b) – a certificate affirming that the decree did not fall within section 4(3) of the Order – had not been filed. The respondent further maintained that appellant 2 was not entitled to execute the decree because the decree had vested in the Custodian of Evacuee Property at Lahore. The High Court held that the decree sought to be executed fell within section 4(1) of the Order and therefore could be enforced under section 4(3) of the same Order. Accordingly, the Court concluded that the appellant was entitled to rely on the provisions of the Order. However, the High Court also held that, in the factual context of the present case, the “court of competent jurisdiction” referred to in section 4(3) was the Court of the Senior Subordinate Judge at Simla, and that the appellants should have lodged their application before that court. In addition, the High Court found the present application to be incompetent because the required certificate of non‑satisfaction had not been filed with the application as mandated by Order 21, Rule 6(b). The Court further observed that the judgment‑debt constituted property whose situs was Pakistan. The net effect of these findings was

According to the findings of the lower court, the decree was deemed, under Pakistani law, to have vested in the Custodian of Evacuee Property situated in Lahore; consequently, the decree could not be executed by the appellants. On the basis of this conclusion, the court dismissed the application that the appellants had filed seeking execution of the decree.

In the present appeal, counsel for the appellants, identified as Mr Pritt, contested the correctness of those findings. He argued that the phrase “a court of competent jurisdiction” appearing in section 4(3) of the Order should be interpreted to mean a court capable of passing the decree that is now under execution, and that such a court could only be the Supreme Court of India because the decree in question originated from the Federal Court of Pakistan. Mr Pritt further maintained that the High Court erred when it required the appellants to furnish a certificate of non‑satisfaction, since the provisions of Order 45, rule 15 do not impose a requirement for such a certificate. He asserted that, if the decree were to be treated as one issued by the Supreme Court of India, the provisions of Order 45, rule 15 alone should apply, and no extra limitations ought to have been placed on the appellants.

Mr Pritt also acknowledged that the judgment‑debt constituted property, but he disputed the High Court’s conclusion that the situs of that debt was Pakistan. He alternatively submitted that even if the situs were presumed to be Pakistan, the relevant provisions of Pakistani law would still indicate that the property embodied in the judgment‑debt did not vest in the Custodian and would remain the property of appellant 2. In his opening submissions, Mr Pritt accepted the Punjab High Court’s view that sections 4(1) and 4(3) of the Order were applicable, and when the respondent later challenged that view, Mr Pritt defended the finding on its merits.

Conversely, the learned Solicitor‑General vigorously disputed the High Court’s conclusion regarding the applicability of sections 4(1) and 4(3) of the Order to the decree, while he agreed with the other findings of the High Court that were adverse to the appellants. On the basis of these opposing positions, the Court first needed to determine whether the decree under execution fell within the scope of section 4(3) of the Order.

The Order in question had been made by the Governor‑General on 12 August 1947, exercised under the authority granted by section 9 of the Indian Independence Act 1947 and any other powers enabling the Governor‑General to act. Section 1(2) of the Order stipulated that it would become effective immediately. Section 2 defined the “appointed day” as 15 August 1947. Section 3 dealt with proceedings that were pending immediately before the appointed day before any of the special tribunals listed in column 1 of the Schedule; those provisions were not relevant to the present appeal. The Court’s attention therefore turned to section 4, which required careful reading in order to resolve the dispute.

The provision in question was set out as follows: “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 Province of the Punjab or the Province of 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 possessed 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 had been 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 issue that required determination was whether the proceedings from which the appeal to the Federal Court was taken fell within the ambit of subsection (1) of that provision. If the appeal‑originating proceedings were covered by subsection (1), then subsection (3) would become operative; if they were not, subsection (3) would not apply. The appellants argued that the language of subsection (1) was sufficiently expansive to encompass every suit that was pending in any civil court in the Punjab at the material time, and that there was no room to restrict the scope of applicability. Conversely, the respondent contended that subsection (1) was intended to cover only those proceedings pending in a court whose jurisdiction would have been affected by the territorial transfer from one Dominion to the other. The dispute therefore turned on the construction of the provision. The High Court had previously construed subsection (1) in favour of the appellants, and the matter before the Court was whether that construction was correct. Both parties agreed that any construction of subsection (1) must be guided by the object for which the Order was made and that the provision should be read in its entirety. Since the Order was issued under the authority granted to the Governor‑General by section 9 of the Indian Independence Act, it was considered appropriate to examine the relevant part of that section. Section 9(1)(d) provides that the 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 the Act.

In this case, the Court explained that the purpose of the Order was to address problems that would arise when the Act created two Dominions and required the transfer of certain territories from a province in one Dominion to a province in the other Dominion. Such a transfer would inevitably generate jurisdictional difficulties for the civil courts that were already hearing cases concerning those territories. To avoid unnecessary complications or hardship for the parties involved, the Order expressly provided that any proceedings covered by the Order and pending at the relevant time should be allowed to continue as though the Act had never been enacted. In effect, the Order deliberately departed from the ordinary rules of private international law concerning the enforceability of foreign judgments. Both parties agreed that this purpose was central to the making of the Order and that, when interpreting the Order, the courts must keep that purpose in mind. The learned Solicitor‑General subsequently argued that the Order should be regarded as temporary in nature, but he added that it would remain operative until every proceeding covered by it had been finally and completely disposed of. He also noted that the Government of Pakistan, through its legislative process, had made a substantial departure from the provisions of the Order by refusing to recognise judgments and orders of Indian courts to which the Order unequivocally applied. The Court’s attention was drawn to the Indian Independence (Pakistan Courts Pending Proceedings) Act, 1952 (IX of 1952), which, by section 3, declares that notwithstanding anything in any of the orders mentioned in section 2, no decree to which this Act applies shall be given effect by any Indian court or authority insofar as such decree imposes any liability or obligation on any government in India. It appeared that the Government of India was satisfied that Pakistan had decided not to give effect to Indian decrees, and therefore it was necessary to safeguard the position of the Government of India and the three concerned State Governments. That was the purpose for which the 1952 Act was enacted. The Solicitor‑General further contended that although the R. Order had been issued by the Governor‑General under section 9 of the Indian Independence Act and was intended to apply to both Dominions, the provisions of the Order were practically no longer operative in Pakistan. The Court held that this consideration was of little relevance when construing the substantive provisions of the Order. So long as the Order remains in force and has not been amended or repealed, Indian courts are bound to interpret its provisions fairly and reasonably and to give them full effect.

In this case, the Court held that considerations based on the unilateral conduct of the Pakistan Legislature in departing from the provisions of the Order could not affect the construction of the Order itself. The Court emphasized that the Order remained in force, and if the decree sought to be executed by the appellants fell within section 4(1) of the Order, then the provisions of section 4(3) would apply, requiring judicial determination of all questions arising under section 4(3). The Court observed that although few decrees or orders may still be executable and not yet executed, the scarcity of occasions to invoke the Order did not alter the need to interpret its provisions. The Court then turned to an analysis of section 4(1). Counsel for the appellant argued that the appeal to the Federal Court, which involved a decree under execution in favour of appellant 2, arose from proceedings then pending in a court of the Punjab, and therefore fell within the scope of section 4(1). The counsel stressed that section 4(1) referred to all proceedings in any civil court in the Punjab as well as in the Provinces of Bengal and Assam, and submitted that there was no justification for limiting the wide words used in the first part of the clause. The Court acknowledged that this argument possessed some initial force, but warned that it would be erroneous to read those words in isolation from the remainder of the clause. The Court noted that section 4 was enacted in the context of 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 Independence Act. The non‑obstante clause that forms the preamble of section 4 clearly indicated that the purpose of the three clauses in that section was to address the consequences of those territorial changes. The Court further pointed out that section 4 was limited to specified judicial proceedings pending only in three Provinces; consequently, proceedings pending in competent courts in Sind or in the North West Frontier Province, which were parts of Pakistan, and in all the States in India except Punjab, West Bengal and Assam, did not fall within the Order’s provisions. Accordingly, the Court concluded that the High Court had erred in assuming that the phrase “all proceedings” in the clause meant that every case pending in every court of the two Dominions was intended to be covered by the Order. It was clear, the Court said, that the Order, as applied to India and Pakistan, covered only the three Provinces mentioned.

In this case the Court noted that the latter portion of section 4(1) required careful consideration. It explained that the pending proceedings described in the first part of the provision were to be continued in the court where they were already pending, as if the Act had never been enacted, and that the court would retain for those proceedings all of the jurisdiction and powers it possessed immediately before the appointed day. The Court stated that these two clauses clearly demonstrated that the enactment of the Act altered the original jurisdiction of the courts to entertain the pending proceedings, which is why the provision expressly authorized the continuance of the proceedings as though the Act had not been passed. Reading section 4(1) in its entirety, the Court concluded that the intention was to protect only those pending proceedings for which the trial court’s jurisdiction would have been affected by the passage of the Act and the transfer of certain territories. The Court further observed that if proceedings were already pending before the specified courts at the relevant time, and if the jurisdiction of those courts to continue the trial was not disturbed by the Act or the territorial transfer, then it would have been unnecessary to authorize the continuance of the proceedings in that court or to stipulate that they should proceed as if the Act had not been enacted; in such circumstances the latter part of section 4(1) would be wholly redundant. The Court examined the argument advanced by Mr Pritt, who attempted to resolve this difficulty by contending that even for proceedings that the specified court could still try after the Act, its jurisdiction to execute the decree would be impaired and that section 4(1) was intended to cure that impairment. The Court dismissed this argument as far‑fetched and untenable. It emphasized that the jurisdiction and powers saved by section 4(1) are described as jurisdiction and powers “for the purpose of the said proceedings.” The Court clarified that this refers to the jurisdiction to continue with the pending proceedings that had been validly initiated, and that the term “proceedings” in this context means a suit, not the proceedings that might be instituted to enforce a decree issued in such a suit. Consequently, the Court found no difficulty in holding that section 4(1) does not apply to every proceeding pending at the material time before the specified courts, but only to those for which the trial court’s jurisdiction would have been affected by the Act or by the transfer of territories. Finally, the Court observed that section 4(2) deals with appeals or revisional applications arising from the pending proceedings covered by clause (1), and turned to the arguments presented by the learned counsel on that point.

The Solicitor-General argued that the clause could not apply to an appeal before the Federal Court because, in his view, the clause was intended only for an appeal that directly challenged the decree issued in the pending proceeding. He contended that the term “appeal” should be understood to refer solely to a single appeal that arises directly against the decree of the pending case, and therefore the provision of section 4(2) could not be extended to a second appeal, such as the appeal to the Federal Court that was before the Court in the present matter. To support this position, the Solicitor-General also pointed out that, at the time the Order was made, the Federal Court had not yet been established and consequently lacked jurisdiction to hear a regular appeal from a High Court decision.

The Court was not persuaded by this line of reasoning. It held that the word “appeal” in the relevant context must be taken to mean any appeal or appeals that are permissible by law in relation to the pending proceedings covered by clause (1). Any narrower interpretation would lead to unreasonable or even anomalous results. The purpose of clause (2) was explained as ensuring that the proceedings identified in clause (1) could proceed to their full legal conclusion under the applicable law, and that the ultimate appellate decision would be as effective with respect to those proceedings as it would be with respect to proceedings that were lawfully instituted in the court after the appointed day.

The Court additionally noted that, by virtue of the combined effect of Order G. G. O. 3 dated 25 February 1948 and the Federal Court (Jurisdiction Enlargement) Act 1 of 1950, the Federal Court must be deemed to have come into existence and to have possessed the power to entertain appeals from High Court decrees from the appointed day onward. Turning to section 4(3), the Solicitor-General maintained that the expression “effect shall be given to” did not signify that the decree should be executed; rather, he argued, it merely meant that the decree should be recognised as having been passed by a court of competent jurisdiction and nothing more. According to his argument, section 4 effected only a very narrow and limited departure from the normal principles of private international law.

The Court observed that, except for matters falling under sections 44 and 44A of the Code of Civil Procedure, a foreign judgment must be enforced by filing a suit, and in such a suit the judgment‑debtor is entitled to raise certain pleas against enforcement. Those pleas are enumerated in clauses (a) to (f) of section 13 of the Code. The Solicitor-General submitted that, because of the legal fiction introduced by section 4(3), when a foreign judgment to which section 4(1) applies is sought to be enforced by a suit in an Indian court, the effect of that fiction would be…

In this case the Court observed that, because of the operation of section 4(3) of the Order, a judgment‑debtor could not rely on the plea that the judgment or decree had not been passed by a court of competent jurisdiction, even though that plea is normally permitted under clause (a) of section 13 of the Code. The Court clarified that while the other pleas available under section 13 would remain open to the judgment‑debtor, the specific defence concerning lack of competent jurisdiction was barred by section 4(3). The Court further explained that if the expression “effect shall be given” were interpreted to mean that the decree must be executed, then every defence listed in section 13 of the Code would become unavailable. Accordingly, the respondent’s position was that the present decree could not be executed directly; instead, it must be enforced through a suit, and the judgment‑debtor would be entitled to raise the remaining pleas covered by clauses (b) through (f) of section 13. The respondent supported this argument by asserting that the jurisdiction protected by section 4(1) is a national or local jurisdiction, whereas the “competent jurisdiction” mentioned in section 4(3) refers to an international jurisdiction. To illustrate the distinction, the respondent cited an earlier edition of Dicey’s Conflict of Laws, which defined a “Proper Court” as one authorised by the law of its own country to adjudicate a matter, and a “Court of competent jurisdiction” as one that, according to English judicial principles, has the right to adjudicate the matter. The Court noted that Dicey offered those definitions merely to explain the terms in his Digest, and that they do not appear in the latest edition of the work. In evaluating the argument, the Court emphasized the need to understand the phrase “a court of competent jurisdiction within that Dominion.” It explained that this phrase essentially means that the judgment must be given effect within the territory of either Dominion, and that, for that purpose, the judgment should be treated as if it had been issued by a court of competent jurisdiction within the Dominion where effect is being given. The context, the Court said, shows that “that Dominion” refers to the Dominion in which the effect of the judgment is to be recognised, not the Dominion where the original judgment was delivered, because the jurisdiction of the court that delivered the original judgment is already covered by section 4(1). The Court concluded that drawing a distinction between the jurisdiction referred to in section 4(1) and the “competent jurisdiction” mentioned in section 4(3) would be pointless, and that section 4(3) therefore requires that, in the Dominion where the effect of a judgment is being given, the judgment be treated as having been passed by a court of competent jurisdiction in that Dominion.

The Court observed that the phrase “a court of competent jurisdiction in that Dominion” implies that a judgment may be treated as if it were rendered by such a court. Consequently, it would be difficult to accept the argument, advanced by the learned Solicitor‑General, that the only way to give effect to the judgment is to recognise it solely as a foreign judgment. For example, if the Federal Court’s judgment is, by statutory fiction, regarded as one pronounced by a court of competent jurisdiction in India, the words “effect shall be given” in the relevant clause must inevitably be understood to mean that the decree following that judgment should be executed in India on the basis that the judgment was competently pronounced by an Indian court.

The Court further noted that clause (3) cannot be said to serve no purpose unless it is intended to provide for execution of the judgments covered by clauses (1) and (2). To suggest that clause (3) merely preserves a possible defence under section 13(1) would ignore the effect of clause (1) itself, which already confers jurisdiction on the specified court to deal with the pending proceedings, thereby precluding any further challenge to that jurisdiction. Accordingly, the Court was satisfied that clause (3) effectively provides that any judgment, decree, order or sentence to which the order applies is executable and shall be executed as if it had been passed by a competent court in the Dominion where execution is sought.

This view is reinforced by the principle that a sentence pronounced by a criminal court is treated in the same way as a judgment or order issued by a civil court. It would be unreasonable to argue that, in the case of a criminal sentence, clause (3) authorises only the initiation of extradition proceedings and nothing else. Thus, reading the three clauses of section 4 together, the Court concluded that the pending proceedings to which clause (1) applies will continue before the specified courts even if the jurisdiction of those courts might otherwise have been affected by the passage of the Act or the transfer of certain territories. Appeals against judgments or orders in those proceedings will be taken in the same manner as they would have been if the original proceedings had been instituted after the appointed day, and the final judgment, decree, order or sentence will be executed in either Dominion as if the proceedings had terminated before a competent court in the Dominion where execution is sought. Considering the significant departure made by clause (3) from the ordinary rules of private international law, the Court found it reasonable to support this conclusion regarding the scope and extent of the proceedings covered by clause (1).

The Court observed that clause (1) of section 4 was intended to apply only to those cases in which the jurisdiction of the specified court had been altered by the passage of the Act or by the transfer of certain territories. It was difficult to accept that, when the Governor‑General issued the Order, he meant that every decree, judgment or order issued by any court in the three designated states should fall within clause (1) and therefore be capable of immediate execution in either Dominion under clause (3). If that had been the intention, the Court could not understand why the two other provinces that were part of Pakistan, as well as the remaining provinces in India, were excluded from the scope of the Order. The Court concluded that the main purpose of the Order was not to disturb or interrupt judicial proceedings already pending in the courts of the specified provinces, where it was feared that the jurisdiction of those courts would be affected by the Act. After a careful examination of the three clauses, the Court was satisfied that a fair and reasonable construction of section 4(1) could not be extended to pending proceedings in which the trial court’s jurisdiction was in no way affected by the Act or by any territorial transfer. For illustration, the Court referred to three decisions of the Calcutta High Court that had been cited by counsel for the respondent and that the High Court had mentioned in its judgment. In Protap Kumar Sen & Anr. v. Nagendra Nath Mazumdar (1), the High Court considered an execution proceeding initiated in the Alipore Court, supported by a certificate of non‑satisfaction issued by the Sub‑Judge at Jessore, who had passed the decree under execution. The validity of that certificate was challenged by the judgment‑debtor, and the High Court held that the Jessore Court was competent to grant the certificate in view of sections 4(1) and 4(3) of the Order. The High Court also addressed the argument that, after the adoption of the Indian Constitution, the Indian Independence Act and its orders were no longer in force under article 395 of the Constitution; this argument was rejected. The respondent did not contend before this Court that the Order had ceased to operate, so the issue was unnecessary, and the decision was deemed of limited assistance in interpreting the language of section 4(1). In Ahidhar Ghose v. Jagabandhu Roy (2), a decree issued by the Alipore Court on compromise was sought to be executed. The suit involved a zemindar who held a Patni concerning lands that, at the institution of the suit, lay wholly within the Alipore Court’s jurisdiction, but after partition part of the land became situated in Pakistan, thereby removing the plaintiff from the Alipore Court’s jurisdiction. The compromise decree required payment of a specified amount in installments and provided that, in case of default, the whole outstanding amount could be realized by attachment and sale of the property in default. Because the Patni property was partly within and partly outside the Alipore Court’s jurisdiction, the judgment‑debtor argued that the claim for sale of the portion within the court’s jurisdiction was incompetent. The Court noted that this particular issue was not before it in the present appeal. Regarding the applicability of section 4(1), the High Court held that the provision applied to the proceedings, reasoning that the suit had been validly instituted before the Alipore Court and that the court’s jurisdiction had been affected by the partition.

In the case that was earlier cited, the land that formed part of the dispute had been divided by the partition of the country and a portion of it had become part of Pakistan; consequently the land no longer fell within the territorial jurisdiction of the Alipore Court. The compromise decree that was issued in that matter ordered the payment of a specified sum by way of instalments and further provided that, if any instalment should remain unpaid, the whole amount that was then outstanding could be recovered by attaching and selling the property that was in default. Because the property that was held under the Patni tenancy was located partly within the area that remained under the jurisdiction of the Alipore Court and partly outside that area, the judgment‑debtor argued that the decree‑holder’s claim to sell the portion of the property that lay within the court’s jurisdiction was legally incompetent. The present appeal did not consider that particular point. Regarding the applicability of section 4(1) of the Order, the lower court held that section 4(1) applied to the proceedings, a view that the present Court thought was clearly correct. The reasoning was that the proceeding had been validly instituted before the Alipore Court; the jurisdiction of that court was subsequently affected by the partition, and therefore the proceeding fell within the scope of section 4(1). Some general observations were made in that judgment and were cited by counsel for the appellant, but those observations had to be read in the factual context of the case before that court, and consequently they did not provide any assistance to the present appellants. In the decision of Naresh Chandra Bose v. Sachindra Nath Deb and Others, the principal issue examined was the effect of article 395 of the Constitution on the validity and continuance of the Order; as already noted, that specific aspect was not relevant to the present appeal. The next issue to be answered was whether the suit presently before the Court fell within section 4(1) at all. The answer was plainly negative. The material allegations set out in the plaint showed that the entire cause of action had arisen within the jurisdiction of the Senior Sub‑Judge at Lahore. The original contract had been executed at Lahore, the property that was to be sold was situated at Lahore, the appellants had paid an earnest sum of five hundred thousand rupees to the respondent at Lahore, and the breach of contract had occurred at Lahore. Accordingly, under section 20(c) of the Code of Civil Procedure, the suit had been properly instituted in the court at Lahore, and the jurisdiction of that court to try the suit was not in any way altered by the subsequent transfer of territory. This position was not disputed. Hence there was no doubt that the trial court could have continued to deal with the suit even if the Order in question had not been issued; therefore the statutory fiction created by the provisions of the Order could not be invoked to enforce a decree passed by the Federal Court in an appeal arising from such a suit. In the view of the Court, the High Court had erred in holding that the provisions of section 4 applied to the decree that the appellants sought to execute. Because of this conclusion, it was unnecessary to consider the other points that had been decided by the High Court and argued before the present Court.

The Court observed that the statutory fiction created by the Order could not be used to enforce a decree that had been passed by the Federal Court in an appeal arising from the original suit. Consequently, the Court held that the High Court was mistaken when it applied the provisions of section 4 of the Order to the decree that the appellants sought to enforce. Because of this conclusion, the Court found it unnecessary to examine the remaining issues that the High Court had decided and that were argued before the Court. Had the Court reached a different conclusion—that the suit from which the Federal Court appeal originated was a pending proceeding under clause 4(1)—additional questions would have had to be resolved. For example, the Court would have needed to determine which court in India possessed the appropriate jurisdiction under clause 4(3), whether that court was the Supreme Court, and if so, whether the provisions of Order 45, rule 15 applied, or alternatively, if the statutory fiction in clause 4 could be employed to invoke those provisions. Further, the Court would have considered what court the appellants should have approached if the statutory fiction was unavailable, whether the present proceedings were essentially execution proceedings before a court that had taken over jurisdiction, and whether a certificate of non‑satisfaction required by Order 21, rule 6(b) was necessary. The character of the judgment‑debt would also have needed analysis to decide whether the decree vested in the second appellant or in the Custodian of Evacuee Property at Lahore.

Since the Court concluded that the provisions of section 4 did not apply to the decree the appellants wished to execute, it deemed it unnecessary to answer the foregoing questions. Accordingly, although the Court differed with the High Court’s conclusion concerning the applicability of section 4, this difference did not alter the ultimate outcome of the appeal. On the basis of the Court’s interpretation of the scope and effect of section 4, the Court held that the appellants’ application before the High Court under Order 45, rule 15 was invalid. Therefore, the High Court was correct in dismissing that application. The appeal was consequently dismissed, and the Court ordered that the costs of the appeal be borne by the appellants.

Justice Kapur expressed dissent, stating that he could not agree with the majority judgment, which he had read with care and respect. He indicated that he would now set out the reasons for his dissent. This appeal was brought by a certificate under Article 133(1)(a) and (c) challenging the judgment and order of the High Court of Punjab, which had dismissed the appellants’ application for execution. The appellants, identified as the Associated Hotels of India Ltd. and R. B. Mohan Singh Oberoi, had entered into an agreement dated 2 October 1946 to purchase certain properties located in Lahore, now part of Pakistan, for a sum of Rs 52,75,000. In pursuance

Under the agreement dated 2 October 1946, the appellants paid the respondent a deposit of five lakh rupees as earnest money. The transaction could not be completed because the respondent was unable to produce a satisfactory title to the property that was to be sold. Consequently, on 8 May 1947 the appellants instituted a suit before the Senior Subordinate Judge at Lahore seeking the return of the five lakh rupees and ten thousand rupees, together with interest at six per cent per annum, and also claimed entitlement to future interest. The Senior Subordinate Judge rendered a decree on 14 March 1949 ordering payment of five lakh eight thousand three hundred thirty‑three rupees and five annas, together with future interest at five per cent per annum, but the decree was limited to the benefit of the second appellant, R. B. Mohan Singh Oberoi. The respondent appealed this decree to the Lahore High Court, and on 24 November 1949 the High Court set aside the trial court’s decree, dismissed the suit and awarded costs to the respondent. Both appellants then appealed the High Court judgment and decree to the Federal Court of Pakistan. On 21 December 1953 the Federal Court allowed the appeal, annulled the High Court’s order and restored the original decree of the Senior Subordinate Judge.

Following the appellant’s earlier appeal in the High Court, the respondent applied to that Court and, on 27 April 1949, obtained an order staying execution of the decree on the condition that he deposit three lakh rupees in the High Court and provide security for the balance. The respondent complied with the condition, depositing the required sum and furnishing the security, thereby effecting the stay of execution. After the High Court’s judgment, the respondent sought a refund of the three lakh rupees he had deposited and the High Court issued an order to that effect on 16 December 1949. The same order directed that notice be issued to the Custodian of Evacuee Property, Lahore. On 20 December 1949 the Custodian filed a review application challenging the High Court’s order, contending that the deposited amount constituted evacuee property. The Custodian also obtained an interim stay of the order directing the return of the money to the respondent. The Federal Court of Pakistan again reversed the Lahore High Court’s decree on 21 December 1953.

Subsequently, on 6 January 1954 the respondent filed another application before the High Court requesting that the deposited amount be applied to satisfy, in part, the decree that had been passed against him. On 31 March 1954 appellant No. 2, R. B. Mohan Singh Oberoi, filed an application to have the three lakh rupees, together with the related records, transferred to India under the Transfer of Evacuee Deposits Ordinance, 1954 (Ordinance No. 1 of 1954) and the later enactment. In the alternative, he contended that the Custodian of Evacuee Property had no right to the money and prayed that the sum be paid either to him in Lahore or otherwise be disposed of in a manner that did not benefit the respondent, who had no claim to the funds.

It was submitted that the money should be paid to a person other than the Custodian of Evacuee Property, but that it should not be paid to the respondent because the respondent possessed no interest in the money. On 30 January 1956 the Lahore High Court, which had by that time become the High Court of West Pakistan, rendered three orders: first, it held that the money could not be transferred to India; second, it allowed the petition for review; and third, it directed the Custodian to report whether any evacuee had any interest in the money. The Court was informed that this matter was then pending on appeal before the Supreme Court of Pakistan.

On 19 January 1955 the appellants filed an application in the Punjab High Court at Chandigarh invoking Order 45, Rule 15 of the Civil Procedure Code together with section 151 of that Code. The purpose of the application was to obtain transmission of the decree of the Federal Court of Pakistan to the Court of the Subordinate Judge at Simla and to secure directions for determining the amount specified in the decree. In an alternative prayer the appellants asked that the decree be sent to the District Judge for execution. The appellants contended that, under Article 4(3) of the Indian Independence (Legal Proceedings) Order, 1947—referred to as the Order made under section 9 of the Indian Independence Act—the decree of the Federal Court of Pakistan could be given effect within the territories of the Union of India and could be executed as if it had been passed by a court of competent jurisdiction in India. They further submitted that the decree should be treated as if it were a decree of the Supreme Court of India and that it could be executed by the senior Subordinate Judge at Simla once the High Court transmitted the decree in accordance with Order 45, Rule 15. As an alternative, they prayed that if the procedure set out in Order 45, Rule 15 was not applicable, the decree be sent for execution to the Senior Subordinate Judge’s Court “as if it had been passed by the Court”. An accompanying application in the form prescribed by Order 21, Rule 11 of the Civil Procedure Code was also filed. The respondent opposed the application on several grounds: it argued that a decree of a foreign court could not be executed in India and that Order 45, Rule 15 was inapplicable; it claimed that the Indian Constitution had repealed the Act, causing the Order to cease to exist; it maintained that the decree vested in the Custodian of Evacuee Property, Lahore, and that the appellants, being divested of any interest, could not execute it; it asserted that the petition was not maintainable because the appellants had not filed a certificate of non‑satisfaction of the court that had passed the decree; it further contended that Article 4(3) of the Order was inapplicable because the suit pending in the Lahore court at the time of partition did not suffer any jurisdictional defect due to the partition; and finally, it held that the appellants could not simultaneously commence execution proceedings in the courts of two independent countries concerning the same decree.

In this case the respondent argued that the same decree could not be pursued simultaneously before the courts of two independent countries, and therefore the petition was untenable. The High Court of Punjab, however, on 22 January 1957 dismissed the petition, holding that although the Indian Constitution had come into force, the Order referred to remained operative and covered all cases pending in any court of the two dominions. The Court explained that the only manner in which a decree issued by a civil court in Pakistan could be given effect in India was to permit its execution within Indian territory. Accordingly, the Court identified the court of competent jurisdiction specified in the Order as the Subordinate Judge First Class at the place where the decree was to be executed, and directed that the appropriate procedure was not to apply to the High Court but to obtain a transfer certificate and, after securing a non‑satisfaction certificate from the Federal Court of Pakistan or any other competent Pakistani court, to enforce the decree in the Senior Subordinate Judge’s Court at Simla. The High Court further held that the appellants had been divested of any rights in the decree by the Evacuee Law of Pakistan and therefore possessed no authority to execute it. In determining the situs of the decree, the Court concluded that it lay in Pakistan, the jurisdiction in which the decree was originally passed, and that the sum of Rs 3 lakhs claimed by the Custodian of Evacuee Property, Lahore, should be accounted for only after the Pakistani courts had adjudicated the matter. Consequently, the petition of the appellants was dismissed. The appellants have now appealed this judgment and order to the Supreme Court. The principal issue for determination is the construction of the fourth clause of the Order. The High Court had rejected the respondent’s contention that the Order applied solely to proceedings over which a court had lost territorial jurisdiction as a result of the partition of border districts, and not to proceedings pending in any court of the provinces of the two dominions, that is, in East and West Punjab or East and West Bengal. The same constrained interpretation of Article 4(1) of the Order has been reiterated before this Court. A careful examination of the provisions of the Act and related Orders is necessary to ascertain the true scope of Article 4. The purpose of the Act was to provide for the establishment of two independent dominions, to amend the Government of India Act 1935 suitably, and to deal with matters consequential to or connected with the formation of those dominions. Section 1 created the separate dominions of India and Pakistan, while Section 2 delineated the territories assigned to each dominion. Although certain provinces fell wholly within one dominion or the other, the Act provided that three provinces—Bengal, Punjab and Assam—were to be apportioned between the two dominions, a division effected under Sections 3, 4 and 9(6) of the Act.

In the enactment, three provinces—Bengal, the Punjab and Assam—were to be divided between the two Dominions, an operation carried out under sections 3, 4 and 9 (6) of the Act. Section 3 provided that the province of Bengal, as it existed under the Government of India Act 1935, ceased to exist and was replaced by two new provinces named East Bengal and West Bengal. The first schedule of the Act listed certain districts that fell wholly within East Bengal, while the remaining districts were assigned to West Bengal, subject to the award of the Boundary Commission concerning the boundary between the two new provinces. Likewise, section 4 divided the province of the Punjab into West Punjab and East Punjab; the districts enumerated in schedule 2 were allotted to West Punjab and the other districts to East Punjab, but this allocation was also conditioned upon the award of the Boundary Commission. The award, although made on 12 August 1947, was published on 17 August 1947 and became operative on that day. A dispute arose over a portion of the province of Assam; following a plebiscite, that portion was incorporated into East Bengal, while the remainder of Assam was constituted under section 9 (6) of the Act as the province of Assam. The Punjab Boundary Commission award showed that only small areas of border tehsils—namely Gurdaspur, Amritsar and Ferozepur in East Punjab and Sialkot, Lahore and Montgomery in West Punjab, which lie along the rivers Ravi and Sutlej—were affected, and the territories exchanged were not extensive by any standard.

The creation of the two Dominions and the division of Bengal, the Punjab and Assam gave rise to numerous problems affecting the legislative, executive and judicial branches of government, including the division of assets, liabilities and powers. While the Act contained certain provisions to address these issues, it was necessary to issue additional Orders to give effective operation to the purpose of the Act, as provided for in section 9. Section 9 encompassed all three branches of governmental activity—executive, legislative and judicial. The relevant portion of section 9 (1) reads: “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 into 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 may be, of the relevant Provinces which, under this Act, are to cease to exist; (c) … (d) for removing …”. These powers enabled the Governor General to issue Orders that dealt with the transition of executive, legislative and judicial functions, thereby addressing the complexities arising from the partition.

In the Act, the Governor General was authorized to make provisions for any difficulties that might arise during the transition to the new constitutional framework. The Act also empowered the Governor General, when it seemed necessary or expedient, to vary the constitution, powers or jurisdiction of any legislature, court or other authority in the newly created Dominions and to create new legislatures, courts or other authorities within those Dominions. Sub‑section (6) provided that, upon the occurrence of a specified event, the Province of Assam would cease to exist and would be reconstituted, while the same provision made provision for the continuance of existing laws. Using the powers granted by the Act, the Governor General of India issued a series of Orders. For provinces that were not affected by the Act, no Orders were required concerning the executive, judicial or legislative functions of government, and consequently none were issued for those provinces. However, wherever a provision was required—either in the Dominion or in the provinces of Bengal, the Punjab or Assam—the Governor General issued Orders. These Orders covered the Federal Court, which was to be reorganised because two Dominions were being created, and also covered the High Courts of Calcutta and Lahore. The Federal Court Order, promulgated on 11 August 1947 under Article 5, stipulated that all proceedings pending in the Federal Court immediately before the appointed day would continue in the Federal Court of India after that day. The Order further provided that if the Court considered any such case ought to be transferred to the Federal Court of Pakistan, the case would be transferred and the jurisdiction of the Pakistan Court would then be exclusive. Any order made in a proceeding that was pending in the Federal Court of India and that continued after the appointed date became enforceable not only in India but also in Pakistan, as if it were an order made by the Federal Court of Pakistan. The language of those articles made this effect clear, a point that was affirmed by the Federal Court in the case of Midnapore Zemindary Co. Ltd. v. Province of Bengal and others. In that decision, Justice Patanjali Sastri observed that, by virtue of the provisions, although the new province of East Bengal was part of the Dominion of Pakistan, a decree issued by the High Court of Calcutta before the appointed day would have effect in East Bengal as if it were an order of the High Court of East Bengal. Moreover, any decision of the appellate court confirming, varying or reversing that decree would also be treated as if the decree were a decree of the High Court of East Bengal, meaning that the judgment under appeal would be regarded as a judgment of the High Court of East Bengal.

The appeal was to be treated as a judgment of the High Court of East Bengal and, for the present case, this Court functioned as the appellate court from that High Court. To define the jurisdiction of the High Courts of Calcutta and Lahore, to establish High Courts for the five newly created provinces, and to specify their powers and the reach of their orders, the Governor General issued four orders on 11 August 1947: the High Courts (Bengal) Order, the High Courts (Punjab) Order, the High Court (Calcutta) Order, and the High Court (Lahore) Order. Article 13 of the High Courts (Punjab) Order provided that original proceedings pending in the Lahore High Court before the appointed day would continue in that Court, but any appeals or revisions pending at that time were to be transferred to the High Court of East Punjab, which had jurisdiction over the area that was then in the province of Delhi or the Province of East Punjab. The same Order further stipulated, under Article 13(5), that any order made by the High Court of East Punjab in transferred proceedings would have effect both as an order of that Court and as an order of the Lahore High Court. Moreover, the Order declared that whether an order had been confirmed, varied, or reversed on appeal either before or after the appointed day, the decision of the appellate court would be given effect as if the appealed order were an order not only of the High Court that originally issued it but also of the High Court of East Punjab or of Lahore, as the circumstance required, citing (1) [1949] F.C.R. 309, 318. Nevertheless, there remained the issue of civil and criminal cases pending in the courts subordinate to the High Courts. The other provinces of India and Pakistan did not face a similar problem, which arose because of the abolition of three provinces. To determine which courts would try the pending proceedings and to define the jurisdiction of those courts as well as the effect of their orders and decrees, the Governor General issued Order No. G. G. O. 11 dated 12 August 1947. Article 3 of that Order stated that, notwithstanding the establishment of the two independent Dominions of India and Pakistan: (1) all proceedings pending immediately before the appointed day in any Special Tribunal listed in column 1 of the Schedule would continue in that Tribunal as if the Indian Independence Act had not been passed, and the Tribunal would retain for those proceedings all the jurisdiction and powers it possessed immediately before the appointed day; (2) notwithstanding any contrary provision in any other law, any appeal from or application for revision of any order or sentence of such Tribunal, in cases listed in column 2 of the Schedule, would be directed to the High Court identified in the corresponding entry in column 3 of the Schedule; and (3) the effect of any order or sentence of any such Special Tribunal, as well as any order or sentence of a High Court on appeal or revision from that Tribunal, would be recognized within the territories of either Dominion as if it had been issued by a court of competent jurisdiction in that Dominion.

The Order provided that the appeal from any case listed in the Schedule would be taken to the High Court named in the third column of that Schedule, and that the judgment or sentence of any Special Tribunal and any High Court hearing an appeal or revision would have effect throughout the territories of either Dominion as if it had been issued by a court of competent jurisdiction within that Dominion. Notwithstanding the creation of new provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act of 1947, the Order further specified that all civil or criminal proceedings pending immediately before the appointed day in any court other than a High Court situated in the Provinces of Bengal, Punjab or Assam would be continued in that court as if the Act had not been passed, and that such courts would retain all jurisdiction and powers they possessed immediately before the appointed day for the purposes of those proceedings. The Order also mandated that any appeal or application for revision of any such pending proceedings would be brought before the court that would have had appellate or, as the case required, revisional jurisdiction over the original court had the proceedings been instituted after the appointed day, and that the judgment, decree, order or sentence of that court would be given effect throughout the territories of either Dominion as if it had been passed by a court of competent jurisdiction within that Dominion. The Schedule, referred to in Article 3, listed three columns titled “Special Tribunal”, “Cases” and “High Court”. The first entry recorded a “First Special” tribunal for “All cases”, with appeals directed to the High Tribunal Court in Calcutta situated in Calcutta. The second entry recorded a “Second Special” tribunal also for “All cases”, with appeals likewise directed to the High Tribunal Court in Calcutta in Calcutta. Under the “First Special” column, case 1 was “Crown v. Sohan Lal” and the High Court was noted as the High Tribunal, with additional names “Bhayana, Shanta”, and “Court of Lahore, Nand, and Ram East Lal Sharma” in Punjab. Case 2 under the same special tribunal was “Crown v. Major C.” with the High Court identified as “A. Hunt, M. A.” and the court located in “Sheikh Hussain, Lahore” together with “Din and Najamuddin”. The schedule then continued with a third entry under the “First Special” heading, case 3 titled “Crown v. Major C.” with the High Court listed as “A. Hunt, Subedar” and the court situated in “Sant Ram Bhatia, Lahore” together with “M. A. Sheikh”. The “Second Special” column listed several specific cases: case 1 “Crown v. R. B. L.” with the High Tribunal, “Padam Chand” and the court in Lahore dealing with “Teela and another” in Lahore; case 2 “Crown v. J. K. Gas” with the High Court identified as “Plant Manufactur‑ ing Co., Ltd., Jug‑ gilal Kamlapat (Rampur) Ltd.” together with “B. B. Mathur and S. K. Seth” in Bombay; case 3 “Crown v. Juggilal” with the High Court indicated as “Kamlapat Gas Plant Manufactur‑ ing Co., Ltd., Juggilal Kamlapat (Rampur) Ltd., Kailashpat Singhania, B. B. Mathur and S. K. Seth” also in Bombay; and case 4 “Crown v. Madanlal” with the High Court noted as “Dalmia, Lakshmi” and the court of “Chand Jain, Rang East Lal, Kishan Sax‑ ena, Ranchor Das Bagri, Ganga Das Mohta, Ram Gopalss Daga and Balabh Das” in Punjab. Finally, the Schedule recorded a “Third Special” tribunal covering “All cases” with appeals directed to the High Tribunal, Court of Lahore, located in East Punjab, as provided under Article 3 of the Order.

The order stipulated that proceedings would continue in the respective Special Tribunals, but that appeals from those tribunals would be taken to the different High Courts listed in the Schedule. The effect was to be given to the orders made and the sentences passed by either the tribunals or the High Courts hearing the appeals, as if those orders had been issued by a court of competent jurisdiction in the Dominion where the effect was given. Consequently, despite the partition, for offences committed anywhere in British India, a conviction by any of these tribunals—whether the tribunal was situated at Lahore or at Calcutta—was to be effective throughout India or Pakistan, as the case required. The discussion then turned to Article 4. An important fact to note was that the award of the Boundary Commission was not published until 17 August 1947, two days after the appointed day. Up to that date the two new provinces, East Punjab and West Punjab, comprised whole and undivided districts as specified in Schedule 2 of the Act, and the territorial jurisdiction of the courts in the various border districts remained unaffected by the mere fact of partition. The non‑obstante clause in Article 4 referred to the creation of new provinces and to the transfer of certain territories from the province of Assam to the province of East Bengal. Clause 1 of Article 4 was expressed in very wide terms. It encompassed and applied to all pending proceedings in any civil or criminal court, other than a High Court, that were pending in the erstwhile provinces of Bengal, the Punjab and Assam. It declared that such pending proceedings would continue in the courts where they were pending immediately before 15 August 1947, and that for those proceedings the court would retain the jurisdiction it would have had as if the Act had not been passed—that is, as if the three provinces had not ceased to exist and the five new provinces had not been created, with all the consequential changes. There was no indication in the first part of the clause that limited, constricted or circumscribed the scope of its wording. Neither express words nor implication introduced any limitation. The expressions “all proceedings” and “in any civil or criminal court” indicated a comprehensive sweep and rejected the idea that only a simple change in territorial jurisdiction of the court would apply. The Act’s second schedule contemplated division only by whole districts, and it was well known that the Punjab Government, like other governments affected by the Act, had undertaken an extensive survey of Punjab to give effect to the “Cabinet formula” for dividing the province. Charts, survey maps of revenue estates, maps of the canal‑irrigation system and maps showing the distribution of population according to religious communities had been prepared by the most competent officers. The preparation of these detailed documents demonstrated that the authorities anticipated the practical implications of the partition on judicial and administrative jurisdictions.

The Court noted that the schedules incorporated in the Act were drawn up on the factual basis prepared by the Government. It observed that the award rendered by Sir Cyril Radcliffe, who was then the chairman of the boundary commission, demonstrated that only minor alteration was necessary to adjust the boundary line that had been prepared by the Punjab Government. The only substantial modification identified was the removal of one entire district except for its trans‑Ravi tahsil. The Court considered it significant that, irrespective of any intention to imply a change in territorial jurisdiction, the language of the provision was expressly stated. For example, Article 3 of the Indian Independence (Income‑tax Proceedings) Order dated 12 August 1947 was quoted in full: “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.” The respondent contended that, by a unilateral statutory act, Pakistan had rendered the decrees of Indian courts, including those of East Punjab, ineffective in West Punjab, and that an Indian statute had made a similar provision concerning decrees against the Government. The Court held that this submission did not reveal the true import of Article 4. Even if it offered any guidance, it merely reinforced the appellants’ argument that the words “all proceedings” in “any court” were intended to have a broad meaning. The respondent sought to limit that meaning by invoking the second part of the clause, which provides that “the court shall continue to have for the purposes of the said proceedings all the jurisdiction and powers which it had before the appointed day.” The Court found that those words did not restrict or narrow the scope of the opening phrase; rather, they served only to allay doubts that might arise from a strict application of private international law principles based on effectiveness and submission, which could otherwise cast uncertainty on the extent of jurisdiction and powers of the courts in the newly created provinces where pending proceedings were to be pursued. Finally, the Court observed that the language of Articles 3 and 4 of the Order is virtually identical, the only difference being that Article 3 contains a non‑obstante clause referring to the transfer of territory from Assam to East Bengal, a reference that is absent in Article 4, while the three provinces of Bengal, the Punjab and Assam are not mentioned in clause 1 of that article because, in the specific context, they were irrelevant.

The Court observed that the provinces which ceased to exist were not mentioned in clause 1 of the relevant article because they were irrelevant to the context of that clause. It further explained that the language used in article 3 must be given a wide amplitude, since the tribunals were dealing with offences that had been committed in many different parts of India. Consequently, there was no justification for giving a narrower or more restricted meaning to the same words when they appeared in article 4 of the Order. The reference to the three provinces in article 4 was required solely because those provinces had ceased to exist, and therefore the reference to them was a matter of factual description. The Court noted that the words stressed by the respondent in the second part of clause 1 of article 4 – namely “for the purposes of the said proceedings” – were common to both articles. Those words were understood to mean that, with respect to the proceedings that were already pending in a particular court, the jurisdiction and powers of that court were to remain exactly as they had been before the division of the territory took place. In other words, the phrase indicated that the existing authority of the court over the pending cases would be preserved, without any alteration resulting from the re‑organisation of the provinces.

The Court further held that the use of those words faithfully carried out the intention of the makers of the Order and served the purposes of the Act, which was to provide a mechanism for the orderly continuation of the normal functioning of the judicial system. It observed that, under the Civil Procedure Code, the jurisdiction of courts was not determined solely by the principles of effectiveness or submission; rather, it was based on factors such as the location of the property, the cause of action, or the residence of the parties. Accordingly, unless jurisdiction was expressly or implicitly removed, the jurisdiction and powers granted to a court by a statute normally continued so long as the court itself continued to exist, a principle embodied in section 9 of the Civil Procedure Code. The Court then turned to the general doctrine of English law, which holds that in the absence of a specific Act of Parliament, civil jurisdiction is founded on one of two principles – either the subject‑matter of the suit lies within England, or the defendant is present at the time of service of the writ in England. If neither condition is satisfied, the maxim “actor sequitur forum rei” applies, as discussed in Cheshire on Private International Law, pp. 139‑40 (3rd Ed.). The Court cited the case of Sirdar Gurdyal Singh v. Rajah of Faridkote (1), where it was clearly stated that in all personal actions the appropriate forum is the court of the country in which the defendant resides, not the court of the country where the cause of action arose. In that case the defendant was residing and domiciled in the State of Jind and, at the date of the suit, had ceased to be a resident of Faridkote; consequently, a decree based on the cause of action arising in Faridkote was held to be a nullity under international law. The Privy Council, at page 185, affirmed the general rule that a plaintiff must sue in the court to which the defendant is subject at the time of the suit, reiterating the principle “actor sequitur forum rei” as articulated by Sir Robert Phillimore (International Law, Vol. 4, p. 891). The Court concluded that all jurisdiction is properly territorial, and that a court may not lawfully adjudicate matters extraterritorially without the consent of the sovereign power whose territory is affected.

Territorial jurisdiction attaches, with certain special exceptions, to all persons who are permanently or temporarily resident within a territory while they remain there. However, this jurisdiction does not follow those persons once they have left the territory and are living in another independent country. The jurisdiction always applies to land within the territory and it may also be exercised over movable property situated within that territory. In matters concerning status or succession that are governed by domicile, jurisdiction may apply to persons who are domiciled in the territory or who were domiciled there while they were living in it.

When different provinces exist under a single sovereignty, such as under the Roman Empire, the sovereign’s legislation may distribute and regulate jurisdiction among those provinces. Nevertheless, no territorial legislation can create jurisdiction that a foreign court must recognise against foreigners, because such foreigners owe no allegiance or obedience to the power that enacted the legislation. Consequently, jurisdiction may be conferred by statute, for example under the Code of Civil Procedure, or it may be based on the two English law principles previously stated.

If those English law principles are the exclusive guides for determining competence, then the mere accrual of a cause of action does not render a court competent to hear the case. Accordingly, Articles 3 and 4 of the Order acknowledge the rule described above and aim to remove any doubts that might arise from the division of provinces and the difficulties that such division creates.

The Court emphasized that the people of the province of Punjab, which had been divided into West Punjab and East Punjab, as well as those of Bengal, were deeply intertwined in matters of relationship, succession, property and business dealings. If no provision had been made to address this interconnection, it would have led to uncertainty, hardships and chaotic conditions. Such outcomes would have been the same as those resulting from the interpretation advanced by the respondent.

The Court explained that if the respondent’s interpretation were accepted in every case, a litigant would have to decide whether his suit could continue or would be barred by the principles previously discussed. Making such a decision is difficult in any forum, and it becomes even more challenging in courts that are subordinate to the High Courts.

The Court noted that the absence of a provision like the one in the Order would have created an almost impossible situation for most proceedings. Even in suits concerning immovable property, difficulties would arise when the property was situated in the jurisdiction of more than one court, for example in the two new provinces of Punjab. This would affect suits for partition of property, succession, enforcement of mortgages and declarations of title under the Punjab Land Revenue Act.

The Court further observed that greater uncertainty would have arisen in cases where original court decrees were under appeal in different districts, and especially in suits where preliminary decrees had been issued but final decrees were still pending. The Court also mentioned that similar problems would occur in matrimonial or testamentary matters, including cases involving guardianship, custody of infants, maintenance and restitution of conjugal rights, if the provision of Article 4 had not been included.

In the absence of a provision comparable to article 4 of the Order, suits of the same character would have faced virtually insurmountable problems. The examples cited illustrate the wide variety of proceedings that required proper provision. To eliminate doubts, hardships and the necessity of commencing fresh actions, paying new court fees and holding new trials, the Governor‑General framed the Order in very general terms, employing language of broad scope. This approach is further supported by reference to criminal matters. The jurisdiction of criminal courts under Chapter XV of the Criminal Procedure Code depends on a range of circumstances, any one of which could create a conflict of jurisdiction. A simple illustration is the trial of an accused whose case is transferred from one district to another when the two districts belong to different provinces; his trial could not proceed without clause 1 of article 4, and any conviction could not become effective without clause 3. Without a provision such as article 4, the situation would have become inconvenient at best and confusing at worst, especially where, under the Criminal Procedure Code, a person might be tried in courts of the two Punjabs and where the rules of International Law might apply. Numerous instances could arise in criminal cases where, had the clause not been given a wide meaning, the legality of the proceedings would have been seriously jeopardised. The third clause of article 4 is expressed in equally expansive language, deliberately so, because its purpose is remedial and to give effect to orders, decrees and sentences issued by courts. If that clause were absent, the first clause would achieve little, for judgments, decrees and sentences rendered by courts of one part of the Punjab would be treated merely as foreign judgments, thereby defeating the whole intention of the Order. It is important to note that the Orders relating to the Federal Court and to the High Courts of Calcutta and Lahore, discussed earlier in this judgment, gave effect to the judgments of one court as if they were the judgments of the other, a principle recognised in the Federal Court decision in Midnapare Zemindary Co. Ltd. v. Province of Bengal & Others. The same wording, unless expressly contradicted, must be given the same meaning, and Parliament later employed identical language in the Indian Independence Pakistan Courts (Pending Proceedings) Act IX of 1952, which was enacted to render ineffective the orders and decrees of Pakistan courts issued under the Special Orders for the continuation of proceedings in Bengal, Assam and the Punjab. By section 3 of that Act (IX of 1952)...

The Act contained the following provision: “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 provision recognised the authority of article 4(3) of the Order and gave no indication that Parliament intended its operation to be confined to the territory claimed by the respondent. Counsel argued that clause 3 of article 4(1) [1949] F.C.R. 309 was intended to require that the court issuing the decree be a court of competent jurisdiction under section 13 of the Civil Procedure Code, and that the losing party could not contest that court’s jurisdiction, submitting that the word “effect” did not mean the same as “execute”. It may be noted that the respondent never raised a jurisdictional challenge at trial, having voluntarily accepted the Lahore Court’s judgment, and therefore he cannot later claim that the judgment fails to bind him, as explained in Cheshire on Private International Law, p. 140 (3rd Ed.). The term “effect” bears a broader meaning than “enforce” or “execute”, since certain decrees are not carried out in the ordinary sense yet are nevertheless given effect, such as decrees for dissolution of marriage, restitution of conjugal rights and injunctions. In criminal matters the word “effect” would denote the carrying out of the sentence imposed by the court. For these reasons the drafters employed the word “effect” in clause 3 of articles 3 and 4 of the Order to cover both civil and criminal adjudications. After partition, the courts situated in the two new provinces of West Punjab and East Punjab became foreign courts to one another, so that, without the Order, some judgments, sentences and orders might no longer have operated effectively. As earlier indicated, article 4 was enacted to address these difficulties and to remove any doubt about the jurisdiction of courts in the provinces that had come into existence. Consequently, a supplementary provision was necessary to give effect to the various decrees and orders that had been issued by the courts in the two provinces. The language of that provision, especially the phrase “court of competent jurisdiction within that Dominion”, demonstrates that decrees rendered by a court in one new Punjab province were to be treated as if they had been rendered by a court of competent jurisdiction in the other province. The deliberate choice of those particular words is highly significant because it underscores the intention to treat judgments from one province as legally equivalent to judgments from the other province. Similar wording appears in clause 3 of article 3, where effect was also to be given to orders passed by the Special Tribunal sitting in Lahore.

In this case the Court considered offences that could have been committed anywhere within the territory of India. It was emphasized that the words used in the relevant provision were not of a lesser scope and therefore did not render a conviction ineffective in any part of India or Pakistan, nor did they make the conviction void throughout those two Dominions. Although the argument might appear repetitive, it was equally relevant to clause three of article four, just as it was to clause three of the third article. It was also contended that the phrase “court of competent jurisdiction” in clause three was employed in the same sense as in International Law, namely a court that possessed the authority to adjudicate the matter. Within the context of the judgment, this phrase could only refer to the court described in clause one of article four, or to a court of similar, equal or co‑ordinate jurisdiction that exercised its powers under either the Civil Procedure Code or the Criminal Procedure Code in whichever of the two Punjabs – West Punjab or East Punjab – the case arose. This interpretation clearly indicated that the effect of article four, clauses one and three, was to ensure that all proceedings – that is, all suits and other related actions – would continue unaffected by the enactment of the Act and by the creation of the two new provinces of West Punjab and East Punjab. Moreover, once a decree was issued or a sentence pronounced by a court in either of the newly formed provinces, that decree was to be given effect as if it had been rendered by a court of competent jurisdiction in the other Dominion, thereby giving the decree the same legal force across both Dominions.

The submission that followed focused on clause two of article four, which referred to any appeal or to the court that possessed appellate jurisdiction. It was argued that the reference did not include the Federal Court of Pakistan because that court did not exist at the relevant time, and the Federal Court that later came into existence under the Federal Court Order possessed only a limited jurisdiction. The word “appeal” in the provision could not be interpreted as restricting the right to a single level of appeal, since the provision expressly stated that an appeal would lie to the court having appellate jurisdiction over the original court, as if the proceedings had been instituted after the appointed day. For proceedings instituted after that appointed day, the jurisdiction of the Privy Council had been conferred, by the laws of Pakistan, upon the Federal Court of Pakistan. Consequently, it would be contrary to the intention of the wording in the Order to limit appeals solely to the district judge or the High Court; the wording must be read to include appeals to the highest court to which an appeal could be taken. It was further submitted that, at the time the suit was filed, the Federal Court’s jurisdiction was limited, and therefore the type of appeal that was later taken could not have been directed to that court at the time. Nonetheless, the Federal Court of Pakistan was undeniably a court of appellate jurisdiction over the lower courts, including the courts mentioned earlier.

The Court observed that the High Courts possessed appellate jurisdiction even though their authority derived from section 205 of the Government of India Act, 1935. It held that the expression “appellate jurisdiction” employed in clause (2) of article 4 of the Order was not altered by any later narrowing of the court’s powers, because the extent of appellate jurisdiction may change over time yet it remains appellate jurisdiction, as affirmed in Midnapore Zemindary Co. Ltd. v. Province of Bengal and Others. The next issue before the Court was whether, as a result of Pakistan’s evacuee legislation, the second appellant had forfeited his rights under the decree. The respondent argued that section 6 of the Pakistan Administration of Evacuee Property Ordinance, 1949 (Act XV of 1949) caused the decree to vest, and to be deemed as having vested, in the Custodian from 1 March 1947. The decree under dispute had been issued by the Senior Subordinate Judge in 1949, and the Lahore Custodian of Evacuee Property had never asserted any claim to it, nor was there any evidence that such a claim had been made subsequently. Although section 13 permitted the Custodian to publish the decree in the official gazette as part of the list of evacuee properties, the record showed no such publication. Section 11 of the same Ordinance stipulated that any amount due to an evacuee or payable in respect of evacuee property must be paid to the Custodian by the person liable. The Court acknowledged that if the decree were classified as evacuee property and thus vested in the Custodian, the Custodian could demand payment from the judgment debtor. The appellant raised two arguments: first, that the situs of the decree was the place where it could be enforced, namely the debtor’s residence; and second, that it was for the Custodian to determine whether the decree constituted evacuee property, a decision he had never taken. Moreover, the decree had never been treated as evacuee property by the Custodian and could no longer be so treated because section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) expressly barred any property not already designated as evacuee property before 1 January 1957 from being treated as such thereafter. Regarding the situs of the decree, Mr. Pritt referred to certain English cases dealing with the situs of a contract debt, relying on those precedents to support his position.

In support of its argument, the learned solicitor‑general referred to several authorities that deal with the location of a contract debt. The authorities cited were In re Russian Bank for Foreign Trade (1), Sutherland v Administration of German Property (2) and The Jupiter (3). The Court also mentioned a decision of this Court, Delhi Cloth & General Mills Co Ltd v Harnam Singh and Others (4), which held that the place of a simple contract debt may vary. At page 423 of that report, Justice Bose observed that “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 that observation, the logical consequence is that the situs of a contract debt would be the place where the debtor resides.

The learned solicitor‑general then argued that the situs of a decree or judgment is the place where it is recorded, relying on Attorney‑General v Bouwen (1). He quoted Dicey’s Conflict of Laws (seventh edition, page 506), which states that judgment debts are situated where the judgment is recorded, and also quoted Cheshire’s International Law (page 456), which explains that English law treats a judgment debt as having a definite locality for purposes such as jurisdiction, death duties, probate or letters of administration. The same source further explained on pages 519‑520 that for jurisdictional purposes, judgment debts are assets where the judgment is recorded, whereas leases are situated where the land lies, specific debts where the instrument occurs, and simple contract debts where the debtor resides at the time of the testator’s death. The passage was taken from Lord Abinger’s observation in Attorney‑General v Bouwen (1). That case involved a claim by the Crown for probate duty on foreign securities owned by a testatrix at her death, and the issue was whether, for administration, those securities were assets locally situated within the jurisdiction of the Ordinary. Because the executors sold and delivered the securities without any act outside the Ordinary’s jurisdiction, duty was payable in England. The quoted observation was made in the context of the limited jurisdiction of the Ordinary. Consequently, Lord Abinger’s reasoning for locating a judgment or decree where it is recorded is that it is normally enforceable in the country that rendered it; therefore, for the purpose of jurisdiction in granting probate, judgment debts are treated as assets located where the judgment is recorded.

The Court observed that a judgment ordinarily takes its legal seat where it is recorded, but in the present matter a legal fiction, as explained in the 1838 case reported at 4 AL and W 172; 150 E.R. 1390, 1398, rendered the decree also a decree of a court possessing competent jurisdiction in what was then the Dominion of India and is now the Union of India. Consequently, the provisions of the evacuee law of Pakistan could not interfere with the appellant’s entitlement to enforce the decree within India. The Court further noted that, for probate jurisdiction, a judgment debt may be situated in the country of its recording; however, as previously indicated by this Court in the Delhi Cloth and General Mills case, the concentration of relevant factors must also be examined. In the unusual facts of this case, the judgment debtor lived and was domiciled in East Punjab, a place where the judgment debt could be enforced, and therefore the situs of the judgment debt could not be limited solely to Pakistan. Moreover, the judgment debtor was an evacuee as defined under Pakistani law, and any of his property would have been vested in the Custodian; consequently, the only jurisdiction capable of enforcing the decree was India. The Court pointed out that no argument had been advanced in support of the High Court’s finding that a transfer and non‑satisfaction certificate was required to execute the decree of the Federal Court. Relying on its interpretation of articles 4(1) and 4(3), the Court held that such an objection could not stand. Even assuming that Order 45, Rule 15 of the Civil Procedure Code might be inapplicable, the High Court nevertheless could and should have transmitted the decree to the Senior Subordinate Judge of Simla for execution in accordance with law. In summary, the Court concluded that (1) the broad wording of article 4 was not narrowed by any language in the article or in the Order, so that decrees of the West Punjab courts issued immediately before the appointed day were not foreign judgments in East Punjab, rendering the respondent’s narrow construction untenable; (2) the decree of the Federal Court of Pakistan fell within the term “appellate jurisdiction” in clause 2 of article 4; (3) the term “effect” in clause 3 of article 4 carried a wide meaning and was not synonymous with “being enforced” through suits on a foreign judgment; (4) clause 3 of article 4 operated as a deeming provision, thereby treating the West Punjab decree as a decree of a competent court in East Punjab, India; (5) the decree’s situs was not confined to Pakistan, as the legal fiction extended to it as well; and (6) the Pakistani evacuee laws did not diminish the decree’s effectiveness in India. Accordingly, the Court allowed the appeal, set aside the High Court’s judgment and order, and restored the appellant’s right to enforce the decree in India.

In the concluding portion of the order, the Court directed that the parties who had filed the appeal – identified as the appellants – were to bear all costs incurred during the proceedings, from the commencement of the litigation until its termination. The Court then expressed that, after giving effect to the reasoning set out in the judgment of the majority of the judges, it was resolved to reject the appeal. Accordingly, the Court ordered that the appeal be dismissed and that the costs of the litigation be assessed against the appellants. The order further clarified that the dismissal of the appeal was final and that the appellants were responsible for the entire cost burden arising from the case in favour of the opposite side. Thus, the Court’s final directive was that the appeal be dismissed and that the appellants shoulder the costs throughout the proceeding.