Chaturvedi, J. - (1.)THIS is second appeal preferred by the judgment -debtor in execution proceedings and raises an important question of law. The District Judge, Gwalior, and the Civil Judge, First Class, Lashkar, overruled the judgment -debtor's objections that the decree -holder's application for execution should be rejected and so the judgment -debtor has come to this Court in appeal.
(2.)IT appears that the respondent -decree -holder had obtained an ex parte decree on 22 -12 -1941 against the appellant Brajmohan Bose and others in the Court of the Munsiff a Kasganj, in the District of Aligarh, in the State of Uttar Pradesh. The first application for execution in that Court was filed on 13 -12 -1944, the second on 13 -12 -1947, and the third on 7 -12 -1949, and there is no doubt that the third application for execution which is in dispute was filed within time under the provisions of Article 182 (sub -cl. 5) of the Indian Limitation Act.
The decree was then transferred for execution to the Court of Subordinate Judge, Lashkar, in the State of Madhya Bharat under orders of the Munsiff, Kasganj dated 8 -2 -1950 as the judgment -debtor had no property in the State of Uttar Pradesh and a certificate under Order 21, Rule 6 of the Indian Civil Procedure Code to this effect was granted on that date. The appellant -judgment -debtor on 27 -10 -50 filed an application objecting to the execution of the decree against him contending, inter alia, that the Munsiff of Kasganj had no jurisdiction to pass a decree against him and that he had not borrowed any money from the decree -holder.

He also contended therein that he had also applied to the Munsiff of Kasganj for setting aside the ex parte decree passed against him. The objection was overruled by the Civil Judge, Lashkar, and that order was upheld by the District Judge, Gwalior, so the judgment -debtor has come in second appeal in this Court, and the main contention advanced by Mr. Bhagwandas Gupta is that till 26 -1 -1950 the Kasganj Court was a foreign Court qua Gwalior Courts and that a decree pronounced by a Court in a personal action, in absentem, the absent party not having submitted himself to its authority, is a nullity.

Mr. Bhagwandas Gupta further urged that if the decree was a nullity any subsequent alteration of the law could not have the effect of validating the execution proceedings against the judgment -debtor, and consequently the subsequent change in the capacity or the authority of the Court functioning in the territory which was formerly the territory of the Gwalior State or of Madhya Bharat State cannot operate to deprive the judgment -debtor of his right to claim exemption from execution of the decree which when passed against him was a mere nullity.

Mr. Bhagwandas Gupta in support of his contention cited many decisions including a ruling of their Lordships of the Privy Council in the case of - - 'Gurdyal Singh v. Raja of Faridkot',, 22 Cal 222 (PC) (A) where their Lordships observed:

In a personal action, to which none of these causes of jurisdiction apply, the decree pronounced 'in absentem' by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. Ha is under no obligation of any kind to obey it; and it must be regarded as a mere nullity by the Courts of every nation except (when authorised by special local legislation) in the country of the forum by which it was pronounced.
Mr. Maheshwari on behalf of the respondent -decree -holder placed reliance on a ruling of a Division Bench of this Court, at Indore, in - - 'Firm Lunaji Narayan v. Purshottam',, AIR 1953 MP 225 (B) which has followed a Full Bench decision of the Bombay High Court in - - Bhag -wan Shankar v. Raja Ram Bapu', : AIR 1951 Bom 125 (C) which upheld a ruling of the Division Bench of that Court in - - 'Chunnilal Kosturchand v. Dundapa Damappa', : AIR 1951 Bom 190 (D). The Division Bench at Indore on the basis of these rulings came to the conclusion that the judgments pronounced by foreign Courts against non -resident -foreigner are not absolute nullities in the sense that they are void from their inception.
They are valid and binding in the country of the forum which passed them and are executable there until they are satisfied or become barred by the operation of statute of limitation or otherwise become inoperative. It was further held that the executability of a binding judgment within a certain territory is a matter not affecting vested right of a judgment -debtor. It is therefore held to be competent for the decree -bolder who obtained an ex parte decree against a resident of a Part B State from a Court in Part A State before the promulgation of the Constitution to execute the same through a Court in Part B State.

Mr. Maheshwari also placed reliance on - - 'Moosakutee Hajee v. Pylotu Joseph',, AIR 1952 TC. 89 (E) winch following - - ' : AIR 1951 Bom 125 (FB) (C)' expressed the opinion that the point of time that has to be regarded in considering the question of executability is not the time at which the decree was passed, but the time when it is sought to be executed because, notwithstanding the existence of any obstacle for execution at the time the decree was passed, if that obstacle is removed by the time the execution of the decree is sought, that obstacle cannot operate as it is only its continued existence that can stand in the way of execution.

Thus it was held that an ex parte decree obtained against a non -resident foreigner at the time the decree was passed can be executed against him if at the time the execution is taken out he has become a citizen by virtue of an act of State. Mr. Maheshwari also invited our attention to the application of the judgment -debtor in which he had stated that an application to set aside the ex parte judgment had been submitted to the Kasganj Court whereby the learned counsel meant (though the point was not argued fully) that the judgment -debtor had submitted to the jurisdiction of the Kasganj Court.

(3.)FROM the papers on record in the execution Court, it appears, that the application to set aside the ex parte decree was dismissed on 17 -3 -51 in default (Civil Miscellaneous File 210 of 1951). It further appears that the application in the Court of the Munsiff of Kasganj to set aside the ex parte decree was made by the judgment -debtor in 1951 i. e. after the Court had ceased to be a foreign Court qua the Gwalior Court. I do not think, therefore, that the subsequent conduct of the judgment -debtor in approaching the Kasganj Court and asking for setting aside the ex parte decree would be any evidence to show that he had submitted to the jurisdiction of the Kasganj Court before the decree was passed. At any rate I cannot give to his subsequent conduct a retrospective significance.
So the only point before us is whether the judgment -debtor was deprived of a substantive right which, before the Constitution came into force on 26 -1 -1950, was vested in him by virtue of the provisions in the Gwalior Civil Procedure Code. This matter, in my opinion, is to be governed by the principles of Private International Law.

The distinction between matters which belong to "procedure" and matters which affect substantive rights of the parties is very subtle, and, in the opinion of English lawyers, the expression "procedure", as interpreted by English Judges, includes all legal remedies and everything connected with the enforcement of a right; but any rule of law which solely affects not the enforcement of the right but the nature of the right itself, does not come under the head of "procedure". Thus if the law which governed, e. g. the making of a contract, renders the contract absolutely void, this is not a matter of procedure, for it affects the rights of the parties to the contract, and not the remedy for the enforcement of such rights, (Dicey's Conflict of Laws page 861, 6th Edn.). So Salmond also observes:

Although the distinction between substantive law and procedure is sharply drawn in theory, there are many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law. In such cases the difference between these two branches of the law is one of form rather than of substance. A rule belonging to one department may by a change of form pass over into the other without materially affecting the practical issue. In legal history such transitions are frequent, and in legal theory they are not without interest and importance. (pages 476 -477 of Jurisprudence, 10th Edn).

Dr. Cheshire in his Private International Law also refers to this difficulty in determining what rules are procedural and what are matters of substance and fears that if a rule is improperly relegated to the domain of procedure the result may be to deprive a party of a right which he has acquired under a foreign system of jurisprudence. He then observes:

Historically they are inseparably connected. Much of substantive law is secreted in the interstices of procedure, and a great American has said that 'wherever we trace a leading doctrine of substantive law far enough back, we are likely to find some forgotten circumstance of procedure at its source.' Moreover, it is still true that certain riles which on the surface appear merely to affect remedies are in fact rules of substance, not of procedure.

The truth is, as an American jurist has so convincingly shown, that substance arid procedure cannot be relegated to clear -cut categories. There is no preordained dividing line between the two, having some kind of objective existence discoverable by logic. What is procedural, what substantive, cannot be determined 'in vacuo'. A line between the two must, of course, be drawn, but in deciding where to draw it we must have regard to the relativity of legal terms and must realize the exact purpose for which we are making the distinction.

The line should not be drawn in the same place for all purposes. It should be drawn in the light of the relevant circumstances, one of which is that the purposes of Private International Law as distinct from municipal law require fulfilment, (pages 828 -829; 3rd Edn. 1948 Reprint).

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