K.S.HEGDE - (1.) THIS is an execution appeal. The decreeholders are the appellants herein. THIS case has a long and chequered history. The decree-holders obtained a decree against the respondents in the Court of Sub-Judge, Bankura (West Bengal) for a sum of over Rs. 12,000.00, on 3/12/1949. On 28/03/1950 they applied to the Court which passed the decree to transfer the decree together with a certificate of non-satisfaction to the Court at Morena in the then State of Madhya Bharat for execution. It was ordered accordingly. The execution proceedings commenced in the Court of Additional District Judge at Morena on 21/09/1950 (Money Execution Case No. 8 of 1950). The judgment-debtors resisted the execution on the ground that the Court had no jurisdiction to execute the same as the decree was that of a foreign Court and that the same had been passed ex parte. The Court accepted that contention and dismissed the execution petition on 29/12/1950. On 1/04/1951 the Code of Civil Procedure (Amendment) Act, (Act II of 1951) came into force. As a result of that the Code of Civil Procedure (in short the 'Code') was extended to the former State of Madhya Bharat as well as to various other places. Meanwhile the decree-holders appealed against the order of the learned Additional District Judge, Morena dismissing the execution petition, to the High Court of Madhya Pradesh. The Madhya Pradesh High Court allowed their appeal. As against that the judgment-debtors appealed to this Court. THIS Court allowed the appeal of the judgment debtors and restored the order of the learned Additional District Judge, Morena. The decision of this Court is reported in Hansraj Nathu Ram v. Lalji Raja and Sons of Bankura, (1963) 2 SCR 619 = ( AIR 1963 SC 1180). Therein this Court ruled that the transfer ordered by the Bankura Court was without jurisdiction as on that date 'the Code' did not apply to the Morena Court. THIS Court held that Morena Court not being a Court to which 'the Code' applied, the decree could not have been transferred to it. It further held that Sections 38 and 39 of 'the Code' did not afford justification for such a transfer. It may be noted that at the time the Bankura Court ordered the transfer of the decree, the Morena Court was governed by the Indian Code of Civil Procedure as adapted by the Madhya Bharat Adaptation Order, 1948. In other words it was governed by a law passed by the then Madhya Bharat State. In the course of its judgment this Court observed that under 'the Code' "a decree can be executed by a Court which passed the decree or to which it was transferred for execution and the decree which could be transferred has to be a decree passed under the Code and the Court to which it could be transferred has to be a Court which was governed by the Indian Code of Civil Procedure". The first stage of the execution proceedings came to an end by the decision of this Court rendered on 30/04/1962.
(2.) ON February 15, l963, the decree-holders filed another execution case before the Bankura Court. Therein they prayed for the transfer of the decree again to the Morena Court for execution. As noticed earlier, by that time 'the Code' had been extended to the Madhya Bharat State which later became a part of the State of Madhya Pradesh. The Bankura Court again ordered the transfer of the decree to the Morena Court. The execution proceedings were started afresh in the Morena Court on 31/08/1963 (Execution Case No. 1 of 1963). The judgment-debtors resisted the execution on various grounds viz, (a) that it is barred by res judicata in view of the decision of this Court referred to earlier. (b) that it is barred by Section 48 of 'the Code'; (c) that it is barred by limitation and (d) that the decree is not executable as it is a decree of a foreign Court. The learned Additional District Judge rejected the objections raised by the judgment-debtors. The judgment-debtor, appeals against that order to the High Court of Madhya Pradesh. The High Court agreed with the executing Court that the execution petition is neither barred by res judicata nor by Section 48 of 'the Code', nor is there any bar of limitation but it disagreed with that Court and held that the decree was not executable as the Court which passed the decree was a foreign Court. In arriving at that conclusion it purported to rely on the decision of this Court in Raj Rajendra Sardar Moloji Narsingh Rao Shitole v Sri Shankar Saran, (1963) 2 SCR 577 = (AIR 1962 SC 1737). Aggrieved by that decision, the decree-holders have brought this appeal by special leave. From the contentions advanced before us, two questions arise for decision. They are (1) whether the decree under execution is not executable by Courts situate in the area comprised in the former State of Madhya Bharat and (2) whether the decree is barred by Section 48 of 'the Code'.
(3.) THE contention of the judgment-debtors is that the decree under execution being a decree of a foreign Court is a nullity-qua the Courts in the former State of Madhya Bharat and therefore the same is not executable in the Morena Court. According to the decree-holders the decree in question is not a decree of a foreign Court as contemplated by 'the Code' and the Court to which the decree is transferred for execution namely the Morena Court is a 'Court' as contemplated by Sections 38 and 39 of 'the Code' and therefore there can be no valid objection to its execution in the Morena Court. Before referring: to the decided cases on the point it is necessary to read the relevant provisions of 'the Code' as the execution is sought in accordance with provisions therein. 'Foreign Court' is defined in Section 2 (5) of 'the Code'. That definition as it stood on the date the decree under execution was passed read thus: " "foreign Court" means a Court situate beyond the limits of British India which has no authority in British India and is not established or continued by the Central Government". ;