H M SUBBARAYA SETTY AND SONS Vs. S K PALANI CHETTY AND SONS

JUDGEMENT

(1.) These two cases were heard together, the same point being involved for decision. In B. A. No. 105/50-51 the respondents filed a suit O. S. No. 37 of 1949 in the Court of the Subordinate Judge at Coimbatore against the appellant who is a merchant in Arsikere in Mysore State and obtained an ex parte decree on 28-3-1949. The Appellant did not enter appearance and did not submit himself to the Jurisdiction of that Court. The Respondents subsequently got the decree transferred to the Court of the Subordinate Judge at Hassan and sought execution there. The appellant-judgment-debtor objected to the execution of the decree on the ground that it was an ex parte decree passed by a foreign Court when he was still a subject of the Mysore State, permanently residing at Arsikere. The learned Subordinate Judge overruled that objection and directed execution to proceed. The Judgment-debtor has appealed.

(2.) It is contended by Mr. V. L. Narasimhamur-thy, learned Counsel for the appellant that it has been held in a series of cases of this Court as well as in, what was formerly, British India that an ex parte decree obtained against a non-resident foreigner, who has not submitted himself to the jurisdiction of that Court, is a nullity and that a decree like the present cannot be executed in Mysore. He urges that nothing has happened since for departing from that rule in the present case as the decree in question was passed by the Coimbatore Court before 26th January 1950 when the Mysore State acceded to and became a part of the Indian Union. It is not disputed that it has all along been held by this Court in a series of cases beginning with '20 Mys CCR 214' that a decree obtained in a Court foreign to Mysore against a subject of the Mysore State, who had not submitted himself to the jurisdiction of that Court, was a nullity; under the Code of Civil Procedure as was in force in Mysore a foreign Court was defined as a Court not established or continued by the Government of Mysore; and a foreign judgment is a Judgment of the foreign Court. In '20 Mys. CCB 214' a decree of the Court of the District Munsiff of Conjeevaram in the Madras Presidency was transferred for execution to the Munsiff's Court at Chick ballapur and Miller C. J. and Mr. Humza Husein J. held that it was competent to the latter Court to refuse execution on the ground that the decree was passed without jurisdiction and that the judgments of Courts in British India are foreign judgments within the meaning of that expression in Section 13 of the Code ol Civil Procedure. Miller C. J. pointed out that the same question had been recently dealt with by the Full Bench of the Madras High Court in 'VEERARAGHAVA AIYAR v. J. D. MUGA SEIT', 27 Mad LJ 535, from the point of view of the British Indian Courts and had been answered in the same way by all the three learned Judges who decided the Letters Patent Appeal. He observed that not merely (sic) as a matter of policy he would be sorry to have to hold that the Mysore Courts were bound to give to the decrees of the Court in the Madras Presidency greater efficacy and finality than the Courts there are prepared to accord to those of our Courts and that he would consequently be glad to be able to accept the opinion of the Full Bench of the Madras High Court as a correct interpretation of the Code of Civil Procedure in British India and a decision applicable to the Code in force in Mysore. In support of his judgment Mir Humza Husein J. relied upon a case decided by the Privy Council in 'GURDYAL S1NGH v. RAJAH OF FARID-KOTE', 22 Cal 222 (PC) where their Lordships of the Privy Council held that a decree passed ex parte against a non-resident foreigner was by International Law a nullity. In the latter case, which has been followed consistently both in Mysore and in British India, as it then was, it was laid down that as to land within the territory, jurisdiction always exists and may exist over movables within it and exists in question of status or succession governed by domicile. But no territorial jurisdiction can give jurisdiction which a Court of a foreign State ought to recognize over an absent foreigner owing no allegiance to the State so legislating. In a personal action to which none of the above causes of jurisdiction apply, the decree pronounced by a Court of a foreign state in 'absentum', the latter not having submitted himself to that authority, is by International Law a nullity.

(3.) It is contended by Mr. V. L. Narasimhamur-thy, learned Counsel for the Appellant, that the accession of Mysore to the Indian Union by virtue of the Constitution, "which came into force on 26th January 1950, cannot have the effect of converting such foreign decrees into valid and executable ones in the Mysore Courts. He urges that the proviso to S. 6 of the Part B States Laws Act No. III of 1951 expressly provides that the repeal of any law corresponding to any of the Acts extended to the State by virtue of the powers conferred on the Central Government to do so under the Constitution shall not affect the previous operation of any law so repealed or anything duly done or suffered therein or any right, privilege, obligation or liability accrued or incurred under any law so repealed, that Section 13 of the Code of Civil Procedure and the principles of International Law were the only factors governing the recognition of such foreign decrees and that the introduction into Mysore of the Indian Code of Civil Procedure Act V of 1908 cannot operate retrospectively so as to render such decrees which were made before 26th January 1950 executable in Mysore. He further urges that Article 261(3) of the Constitution on which reliance has been placed by the Court below declares 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 cannot operate retrospectively so as to validate and render executable in Mysore those otherwise in-executable decrees.