Kapur, J. - (1.) This is an appeal against the judgment and order of the High Court of Madhya Bharat at Gwalior on a certificate of that Court under Art. 133 (1) (c) and like Civil Appeal No. 24 of 1961 (1960), (Rajendra Sardar Moloji Nar Singh vs. Shankar Saran, AIR 1962 SC 1737) raised the question of the applicability of the Indian Code of Civil Procedure and the question whether the decree sought to be executed was a decree of a foreign Court or not. It is a reverse case in the sense that the decree sought to be executed was passed by a Court in West Bengal - a province of what was British India. In this appeal the appellant is the judgment-debtor and the decree-holder is the respondent.
(2.) On December 3, 1949, a decree was passed in favour of the respondent by the Sub-ordinate Judge, Bankura, in West Bengal and a certificate of transfer was applied for on July 27, 1950, granted on August 8, 1950, and was transferred for execution on August 28, 1950. On September 25, 1950, the decree-holder took out execution in the Court of the Additional District Judge, Morena, in what was Gwalior State and subsequently became a part of the United State named Madhya Bharat and after the Constitution the Part B State of Madhya Bharat. On the judgment-debtor's objection the application for execution was dismissed on December 29, 1950, but the appeal against that order was allowed by the High Court on November 15, 1954.
(3.) It is unnecessary to set out the various Sections of the Indian Code of Civil Procedure or to trace the various steps by which Ss. 43 and 44 were amended in that Code; that we have done in C. A. No. 24 of 1960 decided today. It was contended before us by the judgment-debtor that the Court had no power to transfer the decree under S. 38 to the Court in Morena. On the date when the decree was transferred the Courts in Madhya Bharat were governed by the Indian Code of Civil Procedure as adopted by the Madhya Bharat Adaptation order of 1948 but the power of transfer by the Court at Bankura was governed by Ss. 38 and 39 of the Indian Code of Civil Procedure. Under that Code, the Court to which the decree could be transferred was one established in what was British India because the Code extended to the territories of what was British India and it was not till the coming into force of Act II of 1951 on April 1, 1951, that the Indian Code was applied to the "Territories of India" which comprised Parts A, B and C States.;