Ranawat, J. - (1.) THIS is a Civil Execution Second Appeal by the decree-holder against the judgment of the District Judge, Ajmer, dated the 27th of October 1956, confirming on appeal the order of the Sub Judge, First Glass, Ajmer, dated the 27th of September 1954, dismissing the execution petition of the appellant.
(2.) THE facts leading to this appeal may briefly stated thus - A decree was obtained by Sunderlal against Rao Shambhoo Singh from the court of the Civil Judge, Jaipur, on the 31st of August 1944. THE defendant in that case failed to put in his appearance and the case proceeded ex parte against him and an ex parte decree for Rs. 3,107/2/- was passed. After the formation of the State of Rajasthan, the decree-holder applied for transfer of the decree for execution to the court of the Civil Judge, Ajmer, and the decree was accordingly transferred to the court. THE judgment-debtor filed an objection that the decree was not executable against him at Ajmer being a decree of a foreign court against a non-resident foreigner, who did not submit to the jurisdiction of the court. It was also urged that the judgment-debtor could not be held liable for the debts of his father, on account of the provision of sec. 29 of the Ajmer Land Revenue Regulation (II of 1877), which lays down that no money decree can be passed against any person as the representative of a deceased Istimrardar. THE judgment debtor claimed that he was an Istimrardar within the meaning of sec. 29 of the Ajmer Land Revenue Regulation. THE court executing the decree, accepted the objection of the judgment-debtor and dismissed the execution petition. On appeal, the learned District Judge upheld the decision and concurred with view of the trial court that the decree was not executable as it was a nullity, being a decree of a foreign court against a non-resident foreigner, who did not submit to the jurisdiction of that court. On the second point, regarding the application of sec. 29 of the Ajmer Land Revenue Regulation, the opinion of the first court was not approved by the learned District Judge, on the ground that an objection of that nature could not be agitated before a court in execution of a decree, and it could only be raised at the time of the trial of the suit. However, in view of his opinion on the first point, the learned District Judge dismissed the appeal. In this appeal, it has been urged by the learned counsel for decree-holder that though the position at the time the appeal was heard by the lower court may have been adverse to him, yet it has changed in his favour since then on account of the fact that the Rajasthan Civil Courts Ordinance and the Rajasthan Small Cause Courts Ordinance of 1950 were extended to the area covered by the former State of Ajmer by Civil Courts Laws Extension Act of 1957 (Act No. II of 1957 ). It is also urged that by sec. 50 of the States Re-Organisation Act, 1956, the Courts which exercised the functions of High Courts in the two States of Ajmer and Rajasthan were abolished and a new High Court was set up for the newly constituted State of Rajasthan under sec. 49 (2) of the States Reorganisation Act of 1956, and all pending proceedings of the Ajmer Judicial Commissioner's Court were transferred to the newly constituted High Court under sec. 64 of the said Act. The laws in force immediately before the appointed day with respect to practice and procedure in the High Court were saved by sec. 54 of the State Reorganisation Act, and the portion of the Rajasthan High Court Ordinance, 1949, which relates to matters of practice and procedure, continued to govern these matters in the High Court of the State of Rajasthan. The argument of the learned counsel is that since the courts of the Civil Judges both at Ajmer and Jaipur are now courts under the Rajasthan Civil Courts Ordinance, it cannot be maintained that the premerger decree of the Jaipur Court, is a decree of a foreign court vis-a-vis the court of the Civil Judge, Ajmer, and though such an objection may have been available to the judgement-debtor before the formation of the new State of Rajasthan, yet it cannot be availed of now, after the formation of the State of Rajasthan, and extension of Rajasthan Civil Courts Ordinance to the area covered by the former State of Ajmer. Reliance is placed in this behalf on a Full Bench decision of this Court in the case of Laxmichand vs. Mst. Tipuri (1 ). We may also refer to two decisions of this Court on this point, in Shah Premchand vs. Shah Danmal (2) and the other in Badheyshiam vs. Firm Sawai Modi Basdeo Prnsad (3 ). In Shah Premchand's case, the question related to the execution of a decree passed by a court at Kurnool in Madras Presidency in 1948 against a subject of the former State of Sirohi and it was held that the decree was a nullity and could not be executed. In Radheysham's case a decree passed by a court of the former State of Jaipur was being executed by a court at Dholpur, within the State of Rajasthan, and it was held that the decree passed by the court of the former State of Jaipur was executable within the area covered by the former State of Dholpur after the formation of the State of Rajasthan. By the decision in Laxmichand's case, it was held that though decrees of courts outside Rajasthan passed before the 26th January 1950, were not executable in the State of Rajasthan inasmuch as those decrees were unllity for purposes of execution within the limits of the State of Rajasthan, yet it was held that decree of the courts of the covenanting State which merged into the State of Rajasthan were executable throughout Rajasthan,no matter that they were formerly in executable in areas other than those of the covenanting States to which they belonged. It was observed that since there was a provision in S. 49 of the High Court Ordinance regarding transfer of all the records, whether pending or past, of the High Courts of the covenanting States that were abolished, to the newly constituted High Court for the State of Rajasthan the decrees of the courts of the covenanting States, became the decrees of the newly constituted High court for the State of Rajasthan by virtue of sec. 49 of the High Court Ordinance. Similarly, it was also observed that on account of sec. 5 of the Civil Courts Ordinance and similar corresponding provisions of the Small cause Courts Ordinance, the courts of the covenanting States became courts of the State of Rajasthan and their decrees became the decrees of the courts of the State of Rajasthan and they were thus executable throughout the limits of she State of Rajasthan irrespective of the fact that at the time they were passed, they were not executable outside the limits of the States by the courts of which they were passed. Since the Ajmer territory has now merged into the territory of the newly constituted State of Rajasthan, the position has undergone a change regarding the executability of the decree in the present case at Ajmer. Before the 1st of November 1956, the decree was not executable at Ajmer but since that date it has become executable on account of the Civil Courts Extension Act (No. II of 1957 ). The order of the lower court at the time it was passed was perfectly correct. But since then be-case of the change in the law, the decree in the present case can be executed at Ajmer by an application to the court of the Civil Judge, Ajmer. The question, however, remans whether execution can be proceeded with of this decree on the execution petition that was filed in the years 1953 in the Ajmer court. At the time that petition was presented, the decree, in view of the decision in Laxmichand's case, not executable at Ajmer and the petition, therefore, cannot be regarded to be a proper one. We would, therefore, not be justified in ordering execution of the decree on the execution petition already filed by the decree-holder in the court of the Civil Judge at Ajmer. It is however, open to him to present a fresh petition for execution of the decree in the court of the Civil Judge, Ajmer, on account of the changed position of law and to proceed with the execution of his decree in accordance with law. With these observations, we would confirm the judgment of the lower court and would leave the appellant to his remedy by way of a fresh execution petition. As the respondent has not put in his appearance, there would be no order as to cost. .;