Raj Rajendra Sardar Maloji Marsingh Rao... vs Sri Shankar Saran And Ors

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 24 of 1960

Decision Date: 30 April 1962

Coram: J.L. Kapur, A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter titled Raj Rajendra Sardar Maloji Marsingh Rao … versus Sri Shankar Saran and Ors, the judgment was delivered on 30 April 1962 by the Supreme Court of India. The opinion was authored by Justice J.L. Kapur and the bench comprised Justices J.L. Kapur, A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar and J.R. Mudholkar. The petitioner was identified as Raj Rajendra Sardar Maloji Marsingh Rao Shitole and the respondents as Sri Shankar Saran and others. The case is reported in 1962 AIR 1737 and in the Supreme Court Reports 1963 SCR (2) 577, with citator references RF 1963 SC1180 (1,3), D 1971 SC 974 (3,12,14,16,29,31) and D 1977 SC 164 (5). The issues addressed involved a foreign decree, the transfer of a decree passed in Gwalior in November 1948 for execution in Uttar Pradesh in September 1951, the maintainability of an execution application under the concept of a “Civil Court in a Part B State,” and the interpretation of several provisions of the Code of Civil Procedure, 1908 (sections 2(5), 2(6), 13, 38, 39, 43 and 44), the Code of Civil Procedure (Amendment) Act, 1951 (Act 11 of 1951), as well as Article 261(3) of the Constitution of India.

The factual backdrop, as set out in the headnote, showed that the appellant commenced a suit in May 1947 in a court of Gwalior State seeking recovery of a sum of money from the respondents, who were residents of Uttar Pradesh. The respondents failed to appear before that court, and consequently, in November 1948, the Gwalior court issued an ex parte decree against them. On 14 September 1951 the Gwalior court transferred the decree to the Allahabad court for execution, and on 16 October 1951 the appellant filed an application before the Allahabad court seeking to enforce the decree. The respondents contested the execution, contending that the decree originated from a foreign court to which they had never submitted, and therefore it was a nullity and could not be the basis of a maintainable execution application. The Supreme Court held that the decree could not be executed in Allahabad. The majority opinion, delivered by Justices Kapur, Ayyangar and Mudholkar, characterized the decree of the Gwalior court as a foreign decree whose nationality did not change despite subsequent constitutional amendments or modifications to the Code of Civil Procedure. At the time the decree was rendered, the Gwalior court qualified as a foreign court under section 2(5) of the Code. The Court observed that none of the conditions required to confer extraterritorial validity upon the judgment were satisfied: (i) the respondents were not subjects of Gwalior; (ii) they were not residents of Gwalior when the suit was instituted; (iii) they were not temporarily present in Gwalior when service of process was effected; (iv) they did not select the forum that issued the decree; (v) they did not voluntarily appear before the Gwalior court; and (vi) they had not contracted to submit to its jurisdiction. Consequently, the decree could not be treated as a decree passed by a civil court within the meaning of section 39, and sections 37 to 42 of the Code, dealing with execution of decrees, were inapplicable.

In this case the Court explained that the provisions of Sections 37 to 42 of the Code of Civil Procedure dealt only with execution of decrees passed by courts governed by the Indian Code. Consequently the decree issued by the Gwalior Court could not be executed under Section 43 of the Code at any time. After the Code was adapted in June 1950, Section 43 applied only to “a decree passed by a Civil Court in a Part B State”. At the time the Gwalior decree was made there were no Part B States, and the language could not be interpreted to mean “a decree passed by a civil court in a State that later became a Part B State”. Similarly, Section 44 was also inapplicable to the decree because it dealt with a different class of courts. Article 261(3) of the Constitution, which provides that final judgments or orders of Civil Courts anywhere in India are enforceable throughout the territory, was held to be prospective and therefore could not be applied retrospectively to the Gwalior decree. The Court further noted, relying on the observations of Sarkar and Das Gupta JJ, that even if the Gwalior decree were not a foreign decree, the Allahabad Court possessed no authority to enforce it under Section 38, 43 or 44. Section 38 permits execution only by the court that passed the decree or by a court to which the decree is sent for execution; the Allahabad Court was neither. Section 39 allows the court that passed the decree to transfer it for execution, but the term “court which passed the decree” in that provision was intended to refer solely to courts governed by the Indian Code. Because the Gwalior Court, when it issued the decree, was governed by the Gwalior Code, it had a separate legal identity from the same court after it came under the Indian Code, making the transfer order invalid. Section 43 originally dealt with execution of decrees from civil courts situated where the Indian Code did not extend, a situation not applicable to the pre‑Constitution Gwalior decree. After the 1950 adaptation, the section was limited to decrees from civil courts in Part B States, a reading that could not be stretched to include a decree from a court that later became part of a Part B State. Section 44, after its 1950 amendment, applied only to decrees of revenue courts, and before that amendment it could be invoked only upon a specific notification by the Uttar Pradesh Government, which was never issued. Hence, the Court concluded that none of the statutory provisions provided a basis for executing the Gwalior decree in Allahabad.

The appeal was filed as Civil Appeal No. 24 of 1960, challenging the judgment and decree dated 1 August 1957 of the Allahabad High Court rendered in Special Appeal No. 249 of 1955. Counsel for the appellant consisted of a senior advocate and two pleaders, while the respondents were represented by two learned counsels. The judgment was pronounced on 30 April 1962. The opinions of Justice Kapur, Justice Ayyangar and Justice Mudholkar were delivered by Justice Kapur, and the opinions of Justice Sarkar and Justice Das Gupta were delivered by Justice Das Gupta. The present appeal questioned the High Court’s order that the decree issued by the Additional District Judge of Gwalior on 18 November 1948, which was in favour of the appellant and against the respondents, could not be executed at Allahabad. In the proceedings before this Court, the appellant was identified as the holder of the decree and the respondents were identified as the judgment debtors. To resolve the issues raised by the appeal, it was necessary to examine the various statutes, orders and agreements that had resulted in the former Indian State of Gwalior becoming part of the Union of India and thereby subject to a uniform civil procedural law. It was also essential to refer to the successive changes in the law of civil procedure that had taken place at the different stages of the litigation leading up to this appeal.

Up to 15 August 1947, which was before India attained independence under the Indian Independence Act (10 & 11 Geo., Ch. 30), Gwalior was classified under the Government of India Act 1935 as an Indian State, and its courts were deemed “foreign courts” within the meaning of section 2(5) of the Indian Code of Civil Procedure. After independence, section 7(i)(b) of that Act terminated the suzerainty of the British Crown and consequently extinguished all treaties, agreements and obligations previously entered into between the rulers of the Indian States and the Crown. The second question arising in these proceedings was postponed for consideration at a later and appropriate stage. By the Instrument of Accession executed on 15 August 1947, as recorded on page 36 of the White Paper on Indian States, the ruler of Gwalior entered into an agreement with the Dominion of India in which certain subjects listed in the schedule to the instrument were transferred to the Dominion, but civil procedure was expressly excluded from that transfer. In April 1948, the rulers of Gwalior, Indore and several other central Indian states signed a covenant that created the United State of Gwalior, Indore and Malwa, which was commonly referred to as the United State (Madhya Bharat). A fresh Instrument of Accession signed on 19 July 1948 brought the United State into the Dominion of India, and when the Constitution of India came into force, the United State became Madhya Bharat, a Part B State governed by the constitutional provisions applicable to such states. This series of events constituted the process by which the former State of Gwalior was transformed into a part of the Republic of India.

On May 15, 1947, the appellant commenced a suit before the Court of the District Judge in Gwalior seeking recovery of Rs. 6,92,236.15‑0 from the respondents, who were the sons and legal representatives of the deceased Munshi Ishwar Saran. The summons were served on the respondents on September 12, 1947, but the respondents failed to appear before the Additional District Judge who actually conducted the trial. Consequently, on November 18, 1947, the trial Judge ordered the suit to proceed ex parte, and on November 18, 1948, the Judge decreed the appellant’s claim, awarding the decree together with costs and interest. Pursuing execution of the decree, the appellant on August 9, 1949, applied to the Court of the Additional District Judge for a transfer of the decree to the Court of Civil Judge, Allahabad, where the father of the respondents possessed property. The Additional District Judge issued an order on April 25, 1950, directing transfer of the execution case, directing that a certificate of transfer concerning non‑satisfaction of the decree be issued to the Civil Judge, First Class, Allahabad, and that the execution case be dismissed. Subsequently, on September 14, 1951, another order was made sending the decree for execution to the Court of the Civil Judge, First Grade, Allahabad, together with a copy of the April 23, 1950 order. That September 14, 1951 order instructed that a certificate be sent to the Allahabad court under Order XXI, Rule VI, along with copies of the decree, the certificate of non‑payment, and other related orders, and it was signed by B. K. Mehra, Additional District and Sessions Judge, District Gwalior, Madhya Bharat.

The parties disagreed as to which of the two orders represented the effective transfer; however, the Court proceeded on the assumption that the later order of September 14, 1951, was the operative transfer order upon which the appellant relied. Acting on that assumption, the appellant filed on October 16, 1951, an application for execution of the decree before the Court of Civil Judge, Allahabad, seeking realization of the amount now accrued to Rs. 8,98,770. This application was entered as Execution Case No. 47 of 1951, and the respondents subsequently filed their objections.

The respondents raised objections under section 47 of the Code of Civil Procedure on 8 February 1952, contending that the Court of Gwalior was a foreign court whose jurisdiction they had never accepted, and therefore the decree issued by that court was an absolute nullity; they further argued that the decree was not in accordance with law and that the application for its execution was not maintainable. By an order issued under section 34 of the Civil Procedure Code, the High Court transferred the execution proceeding to itself and recorded the case as Extraordinary Miscellaneous Case No. 1 of 1954. The transferred matter was then heard by Justice Brij Mohan Lal, who held that the decree had indeed been passed by a foreign court, to the jurisdiction of which the respondents had not submitted, and consequently the decree was not binding on them and could not be enforced in the territory of Uttar Pradesh. Accordingly, the application for execution was dismissed.

On appeal against that dismissal, the appellate court affirmed the judgment of the learned single judge. The appellate court reasoned that the rule articulated in Sirdar Gurdial Singh v. Maharaja of Faridkot (1) applied to the present case, observing that Gwalior was a foreign state at the time the decree was dated and that its status as a foreign state was not altered by the Indian Independence Act of 1947, the Standstill Agreement of 1947, the first Instrument of Accession of 1947, the 1948 Covenant that created the United State of Madhya Bharat (which included Gwalior), or the second Instrument of Accession of 1948. The court held that Gwalior ceased to be a foreign state only upon the commencement of the Constitution of India on 26 January 1950. The appellate court also concluded that the district judge’s court that rendered the decree was a foreign court at the relevant time, and because the appellant had not submitted to that court’s jurisdiction, the decree was an absolute nullity. Even assuming that Gwalior law authorized the decree, the court declared the decree void and rejected the suggestion that subsequent constitutional developments removed the barrier to its execution. The court found no statutory provision permitting execution of a decree from the Gwalior court in Uttar Pradesh, held that article 261(3) of the Constitution was not retrospective and therefore did not render the decree executable, and determined that section 43 of the Code of Civil Procedure, as amended by the Amendment Act II of 1951, was inapplicable. Moreover, the right to resist execution of a decree on the ground of its nullity was not extinguished by the political changes, and consequently the judgment of the single judge was upheld.

Against that judgment and order, the appellant filed a petition before this Court, seeking a certificate of appeal under article 133(i)(a) and (e) of the Constitution. The principal question that required determination was whether the decree issued by the Gwalior court could be enforced in the State of Uttar Pradesh.

The decree that was issued by the Gwalior Court on 18 November 1948 was sought to be executed in the State of Uttar Pradesh, a territory that at one time formed part of British India, while Gwalior itself, at the relevant period, formed a component of the United State referred to above. In order to determine whether such execution could lawfully proceed, the Court identified four distinct questions for consideration. First, it was necessary to ascertain whether the decree constituted a decree of a foreign court. Second, the Court examined whether the Gwalior Court possessed the authority to order that the decree be transferred for execution before the Allahabad Civil Court. Third, assuming that such transfer was not permissible, the Court needed to decide whether the decree could nevertheless be executed at Allahabad on the basis of sections 43 and 44 of the Code of Civil Procedure. Fourth, the Court considered whether the respondents‑judgment debtors were entitled to raise an objection to the execution of the decree on the ground that the decree was an absolute nullity because it originated from a foreign court. The analysis began with an enquiry into the nationality of the decree granted in favour of the appellant, a step that required a determination of whether the court that passed the decree fell within the meaning of section 2(5) of the Indian Code of Civil Procedure (Act V of 1909), hereinafter referred to as the “Indian Code”.

The enquiry proceeded by tracing the statutory definition of “Foreign Court” as it existed at the relevant times. When the suit was instituted on 15 May 1947, section 2(b) of the Indian Code defined a “Foreign Court” as “a court situate beyond the limits of British India which has no authority in British India and is not established or, continued by the Central Government or the Crown representative.” Subsequently, the Adaptation Order of 23 March 1948 amended the definition to read: “Foreign Court means a court situate beyond the limits of provinces which has no authority in the provinces and is not established or continued by the Central Government.” A further amendment by the Adaptation Order of 26 January 1950 altered the definition to: “Foreign Court means a court situate beyond the limits of the States which has no authority in States and is not established or continued by the Central Government.” Finally, after Act II of 1951 became effective on 1 April 1951, the definition was revised to: “Foreign Court means a court situate outside India and not established or continued by the authority of the Central Government.” At the time the decree was rendered on 18 November 1948, the operative definition was the one embodied in the March 1948 Adaptation Order, namely a court situated beyond the limits of the provinces—i.e., beyond the provinces of former British India—lacking authority therein and not created or maintained by the Central Government. The Court concluded that the Gwalior Court satisfied each element of this definition; therefore, on a plain reading, the Gwalior Court was a foreign court, and any judgment it issued qualified as a “foreign judgment” within the meaning of section 2(6) of the Indian Code.

The Court explained that the decision rendered by the Gwalior Court was, by definition, a judgment of a foreign court. Consequently, under the Indian Code, that judgment fell within the ambit of section 13 of the Code, and its conclusive effect was governed by clauses (a) through (f) of that provision. The Court emphasized that the rules set out in section 13 were substantive legal rules rather than merely procedural guidelines. It further observed that, in the present case, the respondents had never consented to the jurisdiction of the Gwalior Court. Referring to Halsbury’s Laws of England, volume VII, page 144, paragraph 257 (third edition), the Court listed the conditions that must be satisfied for a foreign court to acquire jurisdiction, noting that at least one of those conditions must be fulfilled before a foreign judgment can acquire extraterritorial validity. The Court held that none of those conditions were met. First, the respondents were not subjects of Gwalior; they owed no allegiance to the ruler of Gwalior and therefore had no duty to accept judgments issued by that State’s courts. Second, the respondents were not residents of Gwalior at the time the suit was instituted. Third, they were not temporarily present in Gwalior when service of process was effected upon them. Fourth, in their capacity as plaintiffs in the foreign proceeding, they had not themselves chosen the forum in which the judgment against them was rendered. Fifth, they did not voluntarily appear before that court. Sixth, they had never entered into any contract to submit to the jurisdiction of the foreign court. Because these requisites were absent, the Gwalior Court was held not to be a court of competent jurisdiction. Accordingly, the judgment issued by the Gwalior Court was deemed a nullity outside the United State (Madhya Bharat). The Court cited Gurdyal Singh v. Raja of Faridkot for support. In that case, Lord Selborne had observed that the situation did not depart from the general rule that a plaintiff must sue in a court to which the defendant is subject at the time of the suit (“Actor sequitur forum rei”), a principle reiterated by Sir Robert Phillimore in International Law, volume 4, page 891. The Court reiterated that all jurisdiction is fundamentally territorial and that “extra territorium jus dicenti, imprimere non paretur.” Territorial jurisdiction attaches, with limited exceptions, to persons who are permanently or temporarily resident within the territory while they are present there, but it does not follow them after they reside in another independent country. Territorial jurisdiction always applies to land within the territory and may extend to movables situated there; in matters of status or succession governed by domicile, it may also apply to persons who were domiciled within the territory at the relevant time. While a sovereign may allocate jurisdiction among its provinces, no territorial legislation can confer jurisdiction that a foreign court must recognize against foreigners who owe allegiance to a different sovereign.

The appellant contended that the Gwalior Court could no longer be described as a foreign court. First, the appellant argued that the constitutional instruments executed by the rulers of the Indian States caused the United State of Madhya Bharat to become part of the Dominion of India. Consequently, any decree issued by a court of that State could not be treated as a decree of a foreign court. Second, the appellant submitted that the coming into force of the Constitution of India transformed the United State of Madhya Bharat into a Part B State of the Union of India. In the appellant’s view, this change meant that a decree previously considered a nullity in the former province of Uttar Pradesh ceased to be a nullity, acquired Indian nationality, and therefore became enforceable within Uttar Pradesh. Third, the appellant maintained that the decree issued by the Gwalior Court was a valid decree within the United State of Madhya Bharat and was not an absolute nullity; any obstacle to its enforceability was removed when the United State of Madhya Bharat merged into the Union of India. Fourth, the appellant relied on subsequent modifications to the Indian procedural code, namely the Adaptation Order of 26 January 1950 made under Article 372 of the Constitution, the amendment of that order on 5 June 1950 (which was deemed retrospective to 26 January 1950), and the Civil Procedure Amendment Act (Act II of 1951). According to the appellant, these changes rendered the Gwalior Court competent to transmit its decrees for execution to the Allahabad Court, and, under the evolving provisions relating to execution, the decree in question became executable by the Allahabad Court.

The Court rejected the appellant’s first contention. It observed that the constitutional changes cited by the appellant did not alter the status or nationality of the Gwalior Court until after the decree dated 18 November 1948 had been issued. In the absence of a specific provision to the contrary, the Court held that those constitutional changes left the decree untouched. Moreover, the Court found that the United State of Madhya Bharat had not become part of the Dominion of India despite the various constitutional documents executed by the rulers of the Indian States. The Court examined the effect of those documents by referring to earlier decisions, including Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, Virendra Singh v. State of Uttar Pradesh, and Prem Nath Kaul v. State of Jammu & Kashmir. In Rao Shiv Bahadur Singh’s case, the Court had held that, notwithstanding the Instrument of Accession—which transferred all subjects listed in Schedules I and III of the Government of India Act 1935 to the Dominion Government—and notwithstanding the Covenant whereby the Rajpramukh declared that the Constitution of India to be adopted by the Constituent Assembly would apply, the status of the court did not change. The Court’s analysis thus concluded that the appellant’s reliance on the constitutional instruments and subsequent procedural reforms could not transform the Gwalior Court’s earlier decree into a decree that was no longer foreign or that could be executed by an Indian court.

In this matter, the Court explained that the Constitution of India became the supreme law for Vindhya Pradesh and that it expressly repealed any earlier constitutional enactments of the State that conflicted with it. The effect of those arrangements was to create an integrated United State of Vindhya Pradesh within the Dominion of India, but only through accession. The Court then cited the earlier decision of Virendra Singh, recalling the observation of Justice Bose that despite the readjustment, the totality of sovereignty that had previously rested in each ruler before the covenant now rested in the whole State and its parts, and that no sovereignty was lost to the Dominion of India (p. 419). A comparable view was noted in the Court of Appeal decision in Sayco v. Ameer Ruler Sadiq Mohammad of Bahawalpur, where the ruler of Bahawalpur claimed he retained independent status and that his State was not within His Majesty’s Dominion, despite his accession to the Dominion of Pakistan, as reported in [1953] 1 S.C.R. 415, 418, 419; [1959] Supp 2 S.C.R. 275; and [1952] 2 Q.B. 390, 394.

At the relevant date of 18 November 1948, the various constitutional changes did not alter the position or status of the United States of Madhya Bharat, which included Gwalior; it had not become part of the Dominion of India and continued to retain its separate status. The United State of Madhya Bharat was not incorporated into the “Territory of India” until after the Constitution came into force on 26 January 1950. The Court held that the Constitution operates prospectively and not retrospectively, citing Janardhan Reddy v. State of Hyderabad, Lachmandas Kewal Ram Ahuja v. State of Bombay, and Keshavan Madhua Menon v. State of Bombay. Consequently, before the Constitution Madhya Bharat was not a Part B State; it only acquired that classification as a result of the Constitution. Therefore, the decree that was sought to be executed remained a decree of a foreign court as defined in section 2(5) of the then‑applicable Indian Code, and its judgment could be enforced only in the same manner as foreign judgments: either by instituting a suit founded on that judgment or by complying with a specific provision of the Indian Code, as explained in Mull’s Civil Procedure Code, page 96, and Dicey’s Conflict of Laws, Rule 162 (7th Ed.). A judgment governed by the rule in Sirdar Gurdyal Singh’s case, which was not rendered by a court of competent jurisdiction under international law principles as set out in Cheshire’s Private International Law (p. 641, 6th Ed.), and to which the respondent had not submitted, was held to be a nullity outside the territory of the State where the decree‑issuing court was situated. The Court referred to authorities including (1) (1951) S.C.R. 344, 368; (2) (1952) S.C.R. 710, 730; (3) (1951) S.C.R. 288; and (4) (1894) L.R. 21.

I.A. 171 contains a quoted statement that explains the effect of a decree issued in absentia by a foreign court when the defendant has never submitted to that court’s jurisdiction. The quotation says that, under international law, such a decree is an absolute nullity; the defendant owes no obligation to obey it, and every nation’s courts must treat it as a mere nullity unless special local legislation expressly authorises its enforcement in the forum where it was pronounced. Because the decree in question was issued by a court situated in an Indian State, the quoted proposition means that no legal action could be instituted in what was then British India on the basis of that decree. Element 27 of the Adaptation of Laws Order dated 26 January 1950 provides that any right, privilege, obligation or liability that had already been acquired, accrued or incurred under any existing law remains unaffected by the order. The same provision was later amended on 5 June 1950, being renumbered as element 20, but its wording was left unchanged. Consequently, even though the definition of “foreign court’’ and other provisions of the Indian Code were later altered, those changes did not create any new rights for the appellant nor impose any new liabilities on the respondents; if the decree was already a nullity outside the United State of Madhya Bharat, it continued to be a nullity, and the Adaptation Order did not alter its legal force. The application of Act II of 1951, which extended the Indian Code to Madhya Bharat, likewise did not affect the rights and liabilities arising from earlier orders and decrees, a point that will be examined more fully later in the judgment under section 20 of that Act. In support of this view, the Court referred to its earlier decision in Kishori Lal v. Shanti Devi (1). In that case an order issued under section 488 of the Criminal Procedure Code by a magistrate in Lahore before the Partition of India was sought to be enforced under section 490 of the same Code by a magistrate’s court in Delhi. An objection was raised that the Lahore order should be treated as an order of a foreign court, i.e., a Pakistani court, and therefore not enforceable. The Court held that the order was made by an Indian court at the time of its issuance and remained, at the time of enforcement in Delhi, an order of a domestic tribunal. In the absence of any specific statutory bar, there was no justification for the order to lose its Indian character merely because Lahore was no longer part of India. Justice Bose, speaking at page 442, observed that after the Partition a number of enabling statutes were enacted to address special situations of this sort, and that where specific legislation exists, it must be given effect; however, where no such specific provision applies, as in the present circumstance, the earlier order retains its validity.

The Court observed that, in the absence of any specific statutory prohibition, an order that was valid and competent when it was issued by a tribunal that was domestic at that time, and that could have been enforced in an Indian court on that date, does not lose its effect merely because of the Partition. Although this situation is the reverse of the present case, the principle that a judgment rendered before constitutional changes retains its legal force unless a specific provision alters that effect is applicable here as well. Referring to the decision in Kishori Lal’s case, the Court noted that Wanchoo J., speaking in Laxmi Chand v. Mst. Tipuri, held that the decisive date for assessing the validity or enforceability of an order or a decree is the date of its issuance. Consequently, if a decree was unenforceable in a particular court at the time it was passed, it does not become enforceable or valid simply because of subsequent political changes, unless a specific provision provides otherwise.

The Court then cited the Calcutta High Court’s ruling in Shah Kanti Lal v. Dominion of India, which confirmed that the Constitution has no retrospective effect, including its definition of “Territory of India,” and therefore does not transform a foreign judgment made before the Constitution into a domestic judgment after its commencement. Accordingly, the argument that the decree of the Gwalior Court, initially a nullity, ceased to be so after the Constitution was enacted must fail. The next argument asserted that the decree dated 18 November 1948, issued by the Gwalior Court, was not a nullity because, under the Madhya Bharat Code of Civil Procedure, it was a valid decree, with only an impediment to its execution that the constitutional changes and subsequent amendments to the Indian Code removed. The Court found this contention unsubstantiated. In the international sense, the decree remained a nullity outside Madhya Bharat, despite the State’s internal law treating it otherwise. The Court reiterated that it had already held the decree to be foreign when it originated in Gwalior and that no process existed to convert it into a naturalised Indian decree. In the absence of any specific provision, a decree that is a nullity outside the courts of Madhya Bharat cannot be enforced there. Moreover, it would be incorrect to say that the decree, which was a nullity before the Constitution came into force, suffered only a defect of enforceability by execution, because Section 13 creates substantive rights and is not merely procedural; therefore, the defenses available to the respondents remained intact.

In the present case the Court observed that the rights and liabilities created by the decree of the Gwalior Court were not removed by any constitutional amendment because there was no specific provision that operated in the opposite direction. The Court considered it to be a mistake to claim that the decree was unenforceable at the time it was passed merely because an obstacle that later constitutional changes eliminated had existed. Rather, the Court held that the decree suffered from a more basic flaw – it was a nullity – and that this fundamental defect meant that the rights and obligations arising from the decree remained unchanged even after later constitutional developments. The Court explained that this conclusion follows the reasoning set out in its earlier decision in Kishori Lal’s case, reported in A.I.R. (1953) S.C. 441. The Court also referred to the decision in E. Radhesham Roshan Lal v. Kundanlal Mohanlal, reported in I.L.R. 1956 Punj. 434, where it was determined that a judgment debtor’s right to claim that a decree is a nullity is not merely a procedural issue but a vested right that cannot be taken away by a law that does not have retrospective effect. In a similar vein, the Court cited the Nagpur High Court’s ruling in Ram Kishan Jankilal v. Seth Harmukharai Lachmi Narayan, reported in A.I.R. 1955 Nag. 103, which held that a decree issued by the Indore High Court before the Constitution came into force was issued by a court lacking jurisdiction, and that the later inclusion of Indore within the territory of India did not retrospectively confer jurisdiction on that court to transform the null decree into a valid one. The parties then argued that, because of subsequent amendments to the Indian Code of Civil Procedure that resulted from constitutional changes and legislative updates, the decrees of courts in Madhya Bharat had become enforceable under the revised Code, and therefore the Gwalior Court could lawfully transfer the decree for execution to the Allahabad Court. The Court stated that it would examine the authority of the Gwalior Court to issue the transfer order dated 14 September 1951, assuming without deciding that the order relied upon by the appellant was a judicial order of transfer. The Court noted that at the time the suit was instituted, on 15 May 1947, the procedural law applicable in Gwalior State was the Gwalior Civil Procedure Code, enacted as Gwalior Act 1 of Samvat 1966 (1909). The provisions governing the transfer of decrees in that Code were sections 227 and 229, which corresponded respectively to sections 38 and 39 of the Indian Code of Civil Procedure, while sub‑section (2) of section 229 aligned with section 41 of the Indian Code. The Court further explained that the Indian Code was adapted for Madhya Bharat by the Madhya Bharat Indian Civil Procedure Adaptation Act, Act 70 of Samvat 2006 (1949), and that this adapted Code, hereafter referred to as the Madhya Bharat Code, was scheduled to become effective on 23 January 1950, fifteen days after its publication in the Gazette. By the operation of this adaptation, the Indian Code was incorporated into Madhya Bharat law with the necessary modifications.

In Madhya Bharat, the provisions of the Indian Code of Civil Procedure were given force and effect mutatis mutandis. The enactment also stipulated that any amendment made to the Indian Code would automatically apply to Madhya Bharat, subject to any necessary modifications. Section 4 of the Madhya Bharat Code provided that all earlier procedural codes that had been operating in the constituent states of Madhya Bharat were hereby repealed. That section further declared, inter alia, that every decree and judgment issued under the repealed codes, as well as any other acts performed under those codes, would retain the same legal force as if those decisions had been rendered by an authority competent under the Madhya Bharat Code. Consequently, on 23 January 1950 the Indian Code, together with its required amendments and adaptations, became applicable to the State of Madhya Bharat. This application was effected by the legislative authority of Madhya Bharat, which possessed jurisdiction solely over the territory of that State. Subsequently, on 26 January 1950, the President of India issued an Adaptation of Laws Order under Article 372 of the Constitution. That order adapted existing statutes in accordance with the schedule annexed to it. Clause 27 of the order expressly provided that nothing in the order would affect the prior operation of any existing law, nor any act lawfully performed or any right, privilege, obligation, or liability already acquired, accrued, or incurred under such law, nor any penalty, forfeiture, or punishment already imposed for an offence committed under that law. As a result of the adaptation, certain modifications were introduced into the Indian Code, but the order expressly preserved all actions already taken and all liabilities that had already arisen, leaving earlier decrees undisturbed. On 5 June 1950 the President issued the Adaptation of Laws (Amendment) Order, 1950, which was given retrospective effect so that it was deemed to have commenced on 26 January 1950. The amended order introduced further changes to the Indian Code, which are discussed later in this judgment, while nevertheless leaving Clause 27 of the original order fully operative. The Adaptation of Laws (Third Amendment) Order dated 4 April 1951 subsequently renumbered Clause 27 as Item 20. Later, the Code of Civil Procedure (Amendment) Act, 1951 (Act II of 1951) came into force on 1 April 1951, thereby extending the Indian Code to the entire territory of India, except for the specific areas listed in Section 2, which are not relevant to the present appeal. Accordingly, the Indian Code became applicable to Madhya Bharat, which at that time was a Part B State, and it therefore became operative in the territory that had formerly formed the Indian State of Gwalior. Section 20 of the Amendment Act deals with repeals and savings, and it provides that, immediately before the date on which the Code becomes effective in any Part B State, the preceding law shall be repealed, subject to provisions preserving the earlier operation of any repealed law, any accrued rights or liabilities, and any pending investigations or legal proceedings, which may continue as if the amendment had not been made. The section then continues with the specific language of clause (1).

When the Code was made applicable in any Part B State, the law that corresponded to that Code was deemed repealed on the date it came into force. However, the repeal did not disturb the earlier operation of the repealed law, any duties performed under it, nor any right, privilege, obligation or liability that had accrued under that law. Moreover, any investigation, legal proceeding or remedy relating to such rights or liabilities could continue, be instituted or be enforced, and any penalty, forfeiture or punishment could be imposed as though the new Act had never been enacted. The second provision stated that, subject to the first provision, any notifications, declarations, rules, appointments, agreements, scales, forms, or powers that had been made under the repealed enactment would, to the extent they were consistent with the Code, retain the same force and effect as if they had been issued under the Code by the authority empowered to do so. The third provision provided that, in any law or notification issued before this Act commenced, any reference to a chapter or section of a repealed law would, as far as practicable, be treated as a reference to the corresponding part, order, section or rule of the Code.

On the date that Act II of 1951 came into force, the rights and privileges that had been acquired or accrued under the decree previously passed were not impaired by the repeal. All such rights, privileges, liabilities and obligations continued to exist and could be enforced as if the new Act had not been passed. Consequently, the decree of the Gwalior Court dated 11 November 1948 remained enforceable as a decree under the Madhya Bharat Code. For the purposes of this appeal, the Court assumed that the order of transfer issued by the Gwalior Court was the one dated 14 September 1951. By that date, Act II of 1951 had brought a single Civil Procedure Code into operation throughout Gwalior, the United Provinces and, in effect, the whole of India. The issue before the Court was whether the order dated 14 September 1951, which transferred the decree for execution to the Civil Judge of Allahabad, was a valid order under sections 38 and 39 of the Indian Code and whether the decree so transferred could be executed by the execution Court at Allahabad. The appellant contended that the decree fell within sections 38 and 39, that the Gwalior Court possessed the power to transfer it, and that the Allahabad Court therefore had the authority under law to execute it.

The Court concluded that the view presented by the appellant was untenable. It observed that the principal rules governing the execution of decrees are set out in Part II, titled “Execution”, of the Indian Code, while subsidiary procedural matters are dealt with in Order 21. Within this framework, sections 36 to 42 specify which courts have authority to execute decrees, how decrees may be transferred, and the powers of a court that is called upon to execute a decree that has been transferred to it. By contrast, sections 43 to 45 concern the execution of decrees that originate from civil courts in jurisdictions where the Indian Code does not apply, including decrees issued by revenue courts, courts of the United Kingdom, other reciprocal territories, and foreign jurisdictions.

Section 38 of the Indian Code provides that a decree may be executed either by the court that originally passed the decree or by a court to which the decree is sent for execution. The meaning of “court which passed a decree” is defined in section 37. Section 39 deals expressly with the transfer of decrees for execution and states in subsection (1) that “the court which passed a decree may, on the application of the decree holder, send it for execution to another court.” Section 40 authorises the transfer of a decree to a court in another State, stipulating that such transfer must follow the procedural rules that are operative in the destination State. Section 42 then sets out the powers of the court that is called upon to execute a transferred decree, expressly providing that the executing court’s powers shall be the same as if the decree had been originally passed by that court.

These provisions collectively constitute the legal framework that governs both the transfer of decrees to courts in other jurisdictions and the execution of such decrees by those courts. The Court therefore examined the jurisdiction of the Allahabad Court to execute a decree that had been sent to it by the Gwalior Court from two perspectives. First, it considered whether the Gwalior Court, at the time of the transfer, qualified as a “court which passed a decree” within the meaning of section 39 and thus possessed the authority to transfer the decree to the Allahabad Court for execution. Second, it assessed whether the decree that was transferred fell within the category of decrees that a court governed by the Indian Code – such as the Allahabad Court – is empowered to execute.

The Court found that the Gwalior Court could not have exercised the power conferred by section 39 to transfer a decree because, at the time it had passed the original decree, it was not governed by the Indian Code. The Court rejected the notion that the Gwalior Court operating under the Indian Code was the same entity as the court that had functioned earlier under a different procedural code. In the Court’s view, the Gwalior Court that issued the order of transfer in September 1951, when it was subject to the Indian Code, was a distinct judicial body from the one that had passed the original decree while operating under a separate Code of Civil Procedure. Consequently, the Court that issued the September 1951 transfer order could not be said to be “the court which passed the decree” within the meaning of section 39, and therefore the transfer was not effected by a court vested with the statutory power to do so.

In this case, the Court observed that the decree referred to in Section 39 must be a decree passed by a court that was subject to the Indian Civil Procedure Code. The statutes dealing with execution of decrees, namely Sections 37 to 42, are applicable only to decrees that were issued by courts governed by the Indian Civil Procedure Code, because those provisions presuppose a decree that arises out of a suit filed under that Code. The preamble to the Indian Civil Procedure Code states that its purpose is to consolidate and amend the laws relating to the procedure of civil courts. Section 1(3) of the Code, as presently framed, extends the Code to the whole of India except certain tribal areas. Before the amendment made by Act 11 of 1951, Section 1(3) read: “This section and sections 155 to 158 extend to the whole of India except Part B States; the rest of the Code extends to the whole of India except Part B States and the Scheduled Districts.” Consequently, at that time the Code did not apply to the territories that later became Part B States under the Constitution of India. The Code defines a “decree” as the formal expression of an adjudication that conclusively determines the rights of the parties with respect to all or any matters in controversy in the suit, as far as the court rendering it is concerned. This definition implies that a decree which is to be executed under the Indian Code by a transferee court must be a decree that originated in a civil suit instituted by the filing of a plaint under Section 25 of the Code. Therefore, any decree mentioned in Part II of the Code, which deals with execution and comprises Sections 37 to 42, is a decree that was passed in a suit commenced in accordance with the procedure laid down in the Indian Code. Nothing in Act 11 of 1951 altered that legal position. Counsel for the appellant referred to sub‑section (2) of Section 30 of Act 11 of 1951, but that provision matters only to judgments and decrees that have already been passed and to other matters such as notifications, declarations, rules and appointments. It does not address decrees or orders made under the local Codes of Civil Procedure, and therefore provides no assistance to the appellant’s argument. The rights or privileges that the appellant had acquired under the Madhya Bharat Code remained in force; the decree issued under that Code did not become a decree under the Indian Code merely by virtue of Section 20 of Act 11 of 1951. On the contrary, clauses (b) and (c) of sub‑section (1) of the same provision confirm that the decree continued to be governed by the Madhya Bharat Code and could be executed only under that Code.

The Court observed that the Gwalior Court did not possess authority under sections 38 and 39 of the Code to transfer the decree dated 18 November 1948. Because the Gwalior Court could not transfer the decree, the Allahabad Court likewise lacked authority to execute it. It was further submitted that, even if the Gwalior Court could not transfer the decree under sections 38 to 42 of the Code, the decree might still be executed under sections 43 and 44 of the Code. The Court noted that the decree was not in fact invoked for execution under either of those two sections, but it nevertheless examined the applicability of sections 43 and 44 to the Allahabad Courts at the relevant time.

In addressing the scope of section 43, the Court first referred to the version that existed prior to the Indian Independence (Adaptation of Central Acts and Ordinances) Order of 1948, hereinafter called the Adaptation Order 1948. At that stage the provision read: “Execution of decrees passed by British Courts or in places to which this part does not extend or in foreign territory. Any decree passed by a Civil Court established in any part of British India to which the provisions relating to execution do not extend, or by any Court established or continued by the authority of the Central Government or the Crown Representative in the territories of any foreign Prince or State, may, if it cannot be executed within the jurisdiction of the court by which it was passed, be executed in manner herein provided within the jurisdiction of any court in British India.” After the Adaptation Order 1948 the wording was essentially the same, the only changes being in terminology: “British India” was replaced by “the provinces of India,” and “territories of any foreign Prince or State” was replaced by “in any Indian State.” When the Constitution came into force, the Adaptation of Laws Order dated 6 January 1950 further altered the language, substituting the word “State” for “Province of India.” These alterations were purely nominal and did not affect the substantive effect of the provision. The next substantive amendment occurred with the Adaptation of Laws (Amendment) Order dated 5 June 1950, which was given retrospective effect from 25 January 1950. Section 43 was then amended to read: “Execution of decrees passed by Civil Courts in Part B States, in places to which this Part does not extend or in foreign territory. Any decree passed: (a) by a Civil Court in a Part B State, or (b) by a Civil Court in any area within a Part C State or Part B State to which the provisions relating to execution do not extend, or (c) by a Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in a manner herein provided within the jurisdiction of any court in the States.” This amendment clarified that a decree originating in a Part B State could be executed in any court having jurisdiction within the territories of the States of India, namely Part A, Part B, and Part C States.

The Court explained that by operation of Act 11 of 1951 section 43 of the Civil Procedure Code was amended to read: “Execution of decrees passed by Civil Courts in places to which this Code does not extend. Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend, or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends.” Consequently, after the Constitution became operative through the Adaptation Order, a decree issued by a Civil Court in a Part B State could, under the amended provision, be enforced by any Court having jurisdiction in the States of India, that is, in Part A, Part B and Part C States. The appellant contended that the words in section 43 as adapted by the June 5 1950 Adaptation Order – “Any decree passed by a Civil Court in a Part B State” – should be interpreted to mean “a Civil Court in what became a Part B State.” The Court rejected this argument, observing that such an interpretation would render the Constitution retrospective, whereas the Court has consistently held the Constitution to be prospective. The Court noted that Madhya Bharat was not a Part B State before the Constitution took effect on 26 January 1950; it acquired that status only as a result of the Constitution. Accordingly, a decree issued before the Constitution by a Civil Court in Madhya Bharat could not be treated as a decree of a Civil Court in a Part B State. When the Indian Code was extended to Part B States by Act 11 of 1951, section 43 allowed execution only of decrees passed by Civil Courts established in parts of India to which the Code did not extend, or by Courts established or continued by the Central Government outside India. The decree issued by the Gwalior Court after Madhya Bharat’s establishment did not fall within either category, nor was it a decree from a part of India where the Code did not extend, as defined in section 1(3) of the Code. Therefore, under section 43 of the Indian Code of Civil Procedure, the decree could not be executed. The Court expressly declined to consider section 44 of the Code, which permits a Provincial Government, by official notification, to declare that decrees of Courts of Indian States may be executed as if they were passed by Courts of British India.

The provision originally allowed that the decrees of any civil or revenue court in any Indian State, provided that such court was not one established or continued by the authority of the Central Government or the Crown Representative, could be executed in a Province as if the decrees had been passed by courts of British India. The Adaptation Order of 1948 replaced the expression “British India” with the words “that Province”. Subsequently, the Adaptation Order dated 26 January 1950 amended the section to read: “Execution of decrees passed by courts of Part B States. The State Government may, by notification in the Official Gazette, declare that the decrees of any civil or revenue courts in any Part B State, or any class of such decrees, may be executed in the State as if they had been passed by courts of that State.” This amendment was further modified by the Adaptation Order of 6 June 1950, which gave it retrospective effect from 26 January 1950, and recast it as: “Execution of decrees passed by revenue courts of Part B States. The Government of a Part A State or Part C State may, by notification in the Official Gazette, declare that the decree of any revenue court in any Part B State, or any class of such decrees, may be executed in the Part A State or Part C State, as the case may be, as if they had been passed by courts of that State.” Finally, after the coming into force of Act 11 of 1951 on 1 April 1951, section 44 took the following form: “Execution of decrees passed by revenue courts in places to which this Code does not extend. The State Government may, by notification in the Official Gazette, declare that the decrees of any revenue court in any part of India to which the provisions of this Code do not extend, or any class of such decrees, may be executed in the State as if they had been passed by courts in that State.” When the decree in question was sought to be executed before the Execution Court at Allahabad, the operative provision was the version of section 44 substituted by Act 11 of 1951. The appellant could not rely upon that provision because it applied only to decrees of revenue courts and had no application to decrees of civil courts. The contention concerning the executability of decrees of Part B States was therefore identical to the argument previously advanced under section 43 of the Code, which had already been considered. It was further submitted that, in construing the phrase “the decree of a civil court in a Part B State,” reference should be made to the fact that at the same time section 43 was amended in this manner, section 44 was also amended in such a way that it became impossible for a State Government to issue a notification—though it could have done so but for the amendment—declaring that the decrees of civil courts in an Indian State might be executed in another State.

In the matter before the Court, it was submitted that the amendment which prescribed that a decree should be treated “as if it had been passed in the courts of that State” eliminated any possibility that a decree issued by a court of an Indian State could be executed in other parts of the country. Consequently, the contention was advanced that the expression “the decree of a civil court in a Part B State” ought to be understood to encompass decrees issued by a civil court in a territory which later became a Part B State while it was still an Indian State. It was further argued that the legislature could not have intended, by the amendment of 3 June 1950, to completely extinguish the chance of executability that had existed under the previous law. The Court, however, observed that such an argument was not a relevant consideration. If the legislature had intended to preserve the possibility of future executability through a subsequent notification, it could have expressly provided for that outcome.

The Court noted that any right of executability which had attached to a decree on the basis of a notification already issued would continue to subsist after the date of the amendment. Only in the hypothetical situation where the law had not been altered on 3 June 1950 would there have remained a chance that decrees of courts of Indian States, for which no notification had been made under section 44, could become executable by a future notification made under that provision. The power to issue such a notification in respect of decrees of civil courts in Indian States, however, had been deliberately removed. Accordingly, the Court held that it was futile and irrelevant to speculate about a loss of executability that might have been possible under the earlier law.

The final submission before the Court relied on Article 261 of the Constitution, asserting that the decree passed by the Gwalior Court was executable by virtue of that article. The first clause of Article 261 required that full faith and credit be given throughout the territory of India to judicial proceedings of the Union and of every State. Clause 3 of the same article provided that “final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law.” The Court first examined the effect of the Constitution, emphasizing that it operated prospectively and not retrospectively. Consequently, the Constitution applied only to decrees passed after it came into force and not to those passed earlier. In view of this prospective operation, neither clause 1 nor clause 3 of Article 261 could be invoked to give effect to the decree that the appellant sought to enforce.

In the Court’s opinion, the decree issued by the Gwalior Court and presented for execution was, in legal terms, a decree of a foreign court. Its character did not change despite later constitutional amendments or modifications to the Code of Civil Procedure. Accordingly, the Gwalior Court was unable to transfer the decree for execution to the Court at Allahabad under sections 38 and 39, and the Court at Allahabad likewise lacked the authority to execute the decree without such a transfer.

The Court held that the Allahabad Court could not execute the decree without a proper transfer, and therefore sections 43 and 44 of the Code of Civil Procedure were inapplicable. Consequently, the appeal was dismissed and costs were awarded to the respondents.

This appeal was filed by a decree‑holder whose request for execution of a decree had been rejected. The decree in question had been pronounced on 18 November 1948 by the District Judge of Gwalior, a court then belonging to Gwalior State. The decree was passed ex parte because the defendants, who are now residents of Uttar Pradesh, had not appeared before the Gwalior Court. On 9 August 1949 the decree‑holder applied to the Gwalior Court for a transfer of the decree to the Civil Judge of Allahabad for execution. The Gwalior Court issued an order on 25 April 1950 directing that the decree be transferred to the Civil Judge, First Grade, Allahabad.

It is necessary to note that at the time the suit was instituted (15 May 1947), at the time the decree was passed (18 November 1948), at the time the application for transfer was made (9 August 1949), and even on the date of the transfer order (25 April 1950), the Code of Civil Procedure then in force in India did not apply to the courts of Gwalior. Although Gwalior State had executed an Instrument of Accession on 15 August 1947, it subsequently became part of the United State of Madhya Bharat by a covenant in April 1948, and Madhya Bharat again acceded to the Dominion of India on 19 July 1948. After the Constitution of India came into force, Madhya Bharat was designated a Part B State. However, the Indian Code of Civil Procedure only became applicable to the courts in Gwalior after the enactment of Act 11 of 1951, which came into force on 1 April 1951. From that date onward, the Indian Code governed the Gwalior courts as well.

Although the Gwalior Court had issued an order on 25 April 1950 for the transfer of the decree, the subsequent procedural step required by Order 21, Rule 6 of the Code—to send the decree for execution—was not taken until 14 September 1951. On that later date the Gwalior Court issued an order certifying that the decree amount had not been paid or realized by execution and directed that this certificate be forwarded to the Civil Judge, First Grade, Allahabad under Order 41, Rule 6. The order concluded by directing that a copy of the order, together with copies of the decree passed in connection with the execution, be sent directly to the Allahabad Court.

The order issued by the Gwalior Court stipulated that the decree and the accompanying documents for execution should be sent directly to the Court of the Civil Judge, First Grade, in Allahabad. Accordingly, an application for execution was filed in the Allahabad Court of the Civil Judge, First Grade on 16 October 1951. The judgment‑debtor opposed this application by invoking section 47 of the Code of Civil Procedure. The matter was subsequently placed before a single Judge of the High Court of Allahabad, who dismissed the application on the ground that the decree obtained by the appellant was a nullity and, therefore, could not be executed in Allahabad. The appellant challenged this dismissal, but the same High Court, upon hearing the appeal, affirmed the original decision and upheld the view that the decree was a nullity and thus inexecutable in the Allahabad courts.

The appeal before this Court raised three distinct questions. The first question asked whether the decree that the appellant sought to enforce was, as far as the Allahabad Court was concerned, a foreign decree that the Court correctly treated as a nullity and consequently deemed inexecutable. The second question inquired, assuming that the decree was not a foreign decree, whether the Allahabad Court was a court to which the decree could lawfully be sent for execution within the meaning of sections 37 and 38 of the Code of Civil Procedure. The third question examined whether sections 43 or 44 of the Code of Civil Procedure conferred on the Allahabad Court the authority to execute the decree. In the present judgment, it is unnecessary to analyse the first question in detail. The objection concerning the nullity of the decree could only be raised in the Allahabad Court, the forum where execution was sought. However, before such an objection could arise, the Allahabad Court first needed to possess the power to execute the decree—either by a valid transfer of the decree to it under section 38 or by invoking the provisions of sections 43 or 44. For reasons that will be explained later, this Court does not consider that a valid transfer of the decree to the Allahabad Court was possible, nor that the Court had any power to execute the decree under sections 43 or 44. Consequently, the issue of whether the decree was a nullity does not fall for determination in this case. The case also has no bearing on other methods of enforcing a foreign decree. To address the second and third questions, it is necessary first to understand the scheme of the Indian Code of Civil Procedure with respect to which courts in India may execute decrees. Part II of the Code, which deals with execution of decrees, contains only three relevant sections: sections 38, 43 and 44. Section 38 provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. Section 43, as presently worded, states: “Any decree passed by any civil court established in any part of India to which the provisions of this Code do not extend, or by …”.

Section 43 of the Code of Civil Procedure provides that any decree passed by a civil court established in any part of India to which the provisions of the Code do not extend, or by any court that has been established or continued by the authority of the Central Government outside India, may be executed in the manner prescribed in this provision within the jurisdiction of any court in the territories to which the Code extends, if it cannot be executed within the jurisdiction of the court that passed it. The Court noted that this section has been amended several times between the date the decree in question was made and the present, and that those amendments will be considered later in the judgment. Section 44, likewise, states that the State Government may, by notification in the Official Gazette, declare that the decrees of any revenue court in any part of India to which the provisions of the Code do not extend, or any class of such decrees, may be executed in the State as if they had been passed by courts in that State. This provision too has undergone amendment during the relevant period, and the Court will refer to those changes in due course.

The next issue before the Court was whether the Allahabad Court, where the decree‑holder sought execution, qualified as a court under section 38 that could execute the decree. It is clear that the Allahabad Court was not the court that originally passed the decree. The dispute therefore turned on whether the Allahabad Court was a court to which the decree had been sent for execution. Section 39 of the Code of Civil Procedure governs the procedure for sending a decree for execution to another court by the court that originally passed it. According to the decree‑holder, the Gwalior Court sent the decree to the Allahabad Court by an order dated 14 September 1951. The judgment‑debtors, however, contended that the only order of transfer was the one dated 25 April 1950. If the judgment‑debtors’ contention were correct, there would have been no order of transfer made under section 39, because on 25 April 1950 the Gwalior Court was not governed by the Indian Code of Civil Procedure.

The counsel for the decree‑holder argued that the directions issued on 14 September 1951 effectively constituted an order of transfer under section 39. He further contended that the earlier order of 25 April 1950 should be disregarded as non‑existent, thereby permitting the Gwalior Court, which by September 1951 was subject to the Indian Code of Civil Procedure, to make a fresh order of transfer on that date. He explained that if the April 1950 order had been made under the Indian Code of Civil Procedure, then the September 1951 directions would have amounted only to a ministerial implementation of the earlier order under Order 21 rule 6 of the Code, and not to a new order of transfer. However, because the April 1950 order was admittedly not made under the Indian Code of Civil Procedure, the September 1951 directions could not be characterized as a mere ministerial act. The matter therefore required a detailed examination of whether the September 1951 directions satisfied the requirements of an order within the meaning of section 39.

The Court acknowledged that the situation was difficult, but proceeded on the assumption that the order dated 14 September 1951 was an order issued by the Gwalior Court, which at that time was governed by the Indian Code of Civil Procedure, and that the order purported to transfer the decree to the Allahabad Court for execution. The remaining question was whether that order qualified as an order within the meaning of section 39 of the Code of Civil Procedure. The answer depended on whether the Gwalior Court functioning on 14 September 1951 could be described as “the Court which passed the decree.” Under the Indian Code of Civil Procedure, the right to execute a decree arises immediately upon the decree’s making. At the moment the decree is made, the Court that passed the decree acquires jurisdiction to execute it and, simultaneously, possesses the jurisdiction to transfer the decree to another court governed by the Indian Code of Civil Procedure for execution. It is reasonable to interpret the phrase “courts which passed the decree” in sections 37 and 39 as referring only to courts that are subject to the Indian Code of Civil Procedure, because the Code concerns itself solely with the procedure of such courts. On the date the present decree was made, the Indian Code of Civil Procedure did not apply to the Gwalior Court; consequently, that court was not a “court” within the meaning of the Indian Code. Although, from April 1951, the Indian Code became applicable to the Gwalior Court, the Court held that the court operating under the Gwalior Code of Civil Procedure possessed a distinct identity from the same court after it came under the Indian Code. Therefore, the order of transfer issued on 14 September 1961 was not issued by “the Court which passed the decree” as contemplated by section 39. As a result, the Allahabad Court lacked authority to execute the decree under section 38 of the Civil Procedure Code because there was no valid transfer from the “court which passed the decree.” The Court then examined whether sections 43 or 44 could aid the decree‑holder. Regarding section 44, it was noted that until 23 March 1948 the provision read: “The Provincial Government may by notification in the Official Gazette declare that the decree of any Civil or Revenue Courts in any Indian State, not being courts established or continued by the authority of the Central Government or of the Crown Representative, or any class of such decrees, may be executed in the Province as if they had been by courts of British India.” This section was materially amended on 3 June 1960, with retrospective effect from 26 January 1950, and the amended wording was later set out in the judgment.”

The Court explained that after the amendment made on 3 June 1960 the provision read: “The Government of a Part A State or Part B State may, by notification in the Official Gazette, declare that the decrees of any Revenue Court in any Part B State or any class of such decrees may be executed in the Part A State or Part C State, as the case may be, as if they had been passed by courts of that State.” The Court observed that, in view of this wording, a decree‑holder could obtain no advantage from section 44 following the amendment. The Court added that, hypothetically, if the Government of Uttar Pradesh had issued a notification under the original version of section 44 concerning decrees of Civil Courts in Gwalior State, then the decree in dispute would have become executable in the Allahabad Courts on 26 January 1950, and that right of execution would have persisted to the present. However, the Court noted that no such notification had ever been issued. Consequently, the Court concluded that section 44 provided no assistance to the decree‑holder. The Court turned to section 43 and found it equally unhelpful. The original text of section 43, as it stood before amendment, provided: “Any decree passed by any civil court established in any part of British India to which the provisions relating to execution do not extend, or by any court established or continued by the authority of the Central Government or the Crown Representative in the territories of any foreign prince or State outside India, may if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any court in British India.” The Court held that the decree issued by the Gwalior Court did not fall within this description. The Court recorded that the provision was later amended after 23 March 1948, substituting the words “in any part of British India” with “in any area within the provinces of India.” The Court explained that this substitution nevertheless could not bring a decree of Gwalior State within the ambit of the section. The Court further noted a subsequent amendment on 3 June 1950, with retrospective effect from 26 January 1950, which re‑phrased section 43 to read: “Any decree passed, (a) by a Civil Court in a Part B State or (b) by a civil court in any area within a Part A State or Part C State to which the provisions relating to execution do not extend, or (c) by a court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in a manner provided within the jurisdiction of any court in the States.” The Court observed that counsel for the decree‑holder vigorously argued that the decree dated 18 November 1948, issued by the Gwalior Court, ought to be treated as a decree passed by a civil court in a Part B State. The Court acknowledged that Gwalior became part of a Part B State on 26 January 1950, and that thereafter courts in Gwalior were deemed civil courts of a Part B State. However, the Court concluded that the decree in question was rendered before that date, and therefore could not attract the benefit of the amended section 43.

The Court noted that, from the date of the reorganisation, the courts in Gwalior were deemed to be civil courts in any Part B State. Consequently, every decree issued by a Gwalior court after 26 January 1958 would therefore attract the benefit of section 43 as amended. However, the Court expressed its inability to see how a decree rendered by a Gwalior civil court before that date could obtain the same benefit. The appellant’s counsel conceded that a decree passed by a Gwalior civil court prior to Gwalior’s inclusion in a Part B State would be a decree “passed by a civil court in a Part B State.” That concession invited the Court to interpret the words “by a civil court in a Part B State” as meaning “by a civil court in an Indian State which later became a Part B State.” The Court found no justification for such a construction. Counsel argued that the legislature could not have intended a radical departure from the scheme that allowed decrees of Indian State courts to be executed in provincial courts. It was pointed out that, under the original provision of section 44, a decree of this sort would become executable in provincial courts if the Provincial Government issued the required notification pursuant to section 44. The position remained secure when such a notification existed, and even in its absence there was always a possibility that a notification might later be issued. That possibility vanished when section 44 was amended on 3 June 1950. Counsel further contended that, at the same time as the amendment of section 44, the legislature deliberately employed the expression “any decree passed by a civil court in a Part B State” to include “decrees made by a civil court in an Indian State which later became a Part B State.” In the Court’s opinion, the language actually used by the legislature does not support that interpretation. If the legislature had intended to preserve the executability of decrees from Indian States, it could have done so by appropriate wording either in section 43 or section 44. A proper reading of the language “any decree passed by a civil court in a Part B State” provides no reason to infer that it was meant to cover “decrees made by a civil court in an Indian State which later became a Part B State.” Accordingly, the provision as it stood after the amendment of 3 June 1951 offered no assistance to the decree‑holder. Section 43 was subsequently amended by Act 11 of 1951, and the present wording has already been set out. The appellant correctly did not argue that the current version of section 43 applies to the decrees in question. The Court therefore concluded that

The Court held that the Allahabad Court possessed no authority to enforce the decree either pursuant to section 38 of the Code of Civil Procedure or under sections 43 or 44 of the same Code. In other words, the statutory provisions that might have conferred jurisdiction for execution were not applicable to the present decree. Consequently, even assuming, for the sake of argument, that the decree in question was not a foreign decree, the decree‑holder’s petition seeking execution could not be sustained because the requisite power of the court to carry out such execution was absent. Accordingly, the Court found that the lower court’s order dismissing the decree‑holder’s application for execution was proper and justified. As a result of this finding, the appeal filed by the decree‑holder was rejected. The Court further ordered that the costs of the appeal be borne by the appellant, thereby imposing the financial burden of the unsuccessful proceedings on the party who had challenged the dismissal. In sum, the appeal was dismissed with costs, confirming the lower court’s decision and affirming that no execution could be ordered under the cited provisions of the Code of Civil Procedure.