METAL CORPORATION OF INDIA LTD Vs. PCOLOMBI

JUDGEMENT

(1.) This second appeal arises out of execution proceedings. But it raises a very important point of law as to whether a decree passed by a foreign court prior to the Constitution is executable in another State after the Constitution by which both the courts have now become parts of the Indian Union. The decree in question was passed on 13-1-1950 by the High Court of Calcutta in its Original Jurisdiction the defendant who was then a resident of Kolar in the Mysore State remaining ex parte. On 30-9-53 the decree was transferred to the Court of the Subordinate Judge at Kolar. On 25-1-54, an execution petition was filed in the Court of the Subordinate Judge, Kolar, the same having been registered as Ex. 2 of 1954. The judgment-debtor raised several contentions, one of them being that inasmuch he declined to submit himself to the jurisdiction of Calcutta High Court, the judgment of that court being one of a foreign court, was not valid and binding on him. It was thus contended that it was inexecutable in the Court of the Subordinate Judge at Kolar in the Mysore State. The executing court held that the decree was executable, while in appeal the District Judge came to the conclusion that it was not executable. It is against that the order that the present appeal has been filed by the decree holder.

(2.) A curious feature of this case is that while at the date of the passing of the decree, Calcutta Court was a foreign territory with reference to the court at Kolar where the defendant was residing, both of them came within the territory of India by reason of the accession of the State of Native Princes to the Dominion of India and the formation of a Soverign Democratic Republic by the Constitution of India. The phenomenon has given rise to several cases like the one under consideration in various states. Consequently there have been several decisions on this point by various High Courts. Unfortunately the decision have been widely divergent and in some points the differences have been very sharp. One set of decisions takes the view that, under the above circumstances, the decree becomes executable after both the courts--the one passing the decree and the one executing it--became parts of the territory of India after the Constitution. The other set of decisions takes a contrary view viz., that, in spite of the coming in of the Constitution and the formation of one common territory of India, the decree remains inexecutable as a decree of a foreign court. Unfortunately, the matter has not yet reached the Supreme Court whose decision could set at rest the controversy. Under these circumstances, the matter needs a very careful consideration.

(3.) The question involves a principle of international law. Both the schools of thought do agree on the point that the Judgment of a court in the former British India is a foreign judgment in a Court in the former Princely State of India and vice versa. But one of them is of opinion India after the formation of the Indian Union, both the courts come within one country and that they no longer remain foreign courts with relation to each other. Consequently, it is concluded that what once was a foreign court is no longer such after the Constitution. On this process of reasoning, it is decided that there is no longer any bar for the execution of the decree. The other school however, is of opinion that the bar continues even after the Constitution and even after the formation of one territory of India for all the courts. As can be deduced from a careful consideration of these two sets of decisions it is found that there are two cardinal principles on which the two sets are at variance. According to those who hold that the decree becomes executable, the material point of time to consider the nature or validity of the decree is the date when execution is sought and not when the Judgment was rendered. They are also of opinion that the Judgment of a foreign court is not void ab initio or a nullity. In view of the fact that such a decree can be executed within the jurisdiction of the court which passed it it is a valid judgment. There is merely an impediment for its execution in a foreign court. That impediment having been removed by the Constitution and by the formation of the Indian Union within whose limits both the court come in, there is no reason why the decree should not be executable. According to those who are of opinion that the decree is not executable, the material date is the date of the decree and not the date when execution is sought. The decree is a nullity with reference to the foreign court where its execution may be sought. That being so the coming in of the Constitution or of the formation of the Indian Union cannot make a decree valid such that it could be executed after the Constitution in a State where it could not have been done before the Constitution. In view of this sharp difference of opinion, it is necessary to examine the above two stand points.