THE PROJECT TOPIC

ON
MOLOJI NAR SINGH RAO v SANKAR SARAN
UNDER CIVIL PROCEDURE CODE, 1908

SUBMITTED BY:-
MOHD SAKIB
GU17R0032
3TH YEAR, 6TH SEMESTER

SUBMITTED TO:–
DR. VAISHALI Ma’am
(Faculty of Law)
 TABLE OF CONTENTS

STATEMENT OF JURISDICTION……...…………….... (6)

STATEMENT OF FACTS……………………………….. (6)

STATEMENT OF ISSUES……………………………….. (7)

SUMMARY OF ARGUMENTS………………………….. (8)

CONCLUSION……………………………………………. (16)

STATEMENT OF JURISDICTION
An aggrieved party can file an appeal to the High Court from every decree passed in appeal by
any court subordinate to the High Court, if the High Court is satisfied that the case involves a
substantial question of law

STATEMENT OF FACTS

1.1 On 15-5-1947 Brigadier-General Raj-Rajendra Sardar Maloji Rao Narsingh Rao Shitole
instituted a suit in the Court of the District Judge of Gwalior for the recovery of a sum of Rs.
6,92,236-15-0, It was alleged that the late Munshi Iswar Saran of Allahabad had been his
agent for a certain purpose and had died without rendering account. His three sons were
impleaded as defendants and a decree for the above sum was sought against them.
Summonses were served on the defendants on 18-11-1947, but none of them put in
appearance in the Gwalior court. An 'ex parte' decree was passed against them on 18-11-
1948.

1.2 On 14-9-1951 the District Judge of Gwalior transferred the decree to the District Judge of
Allahabad for execution. On 16-10-1951 an execution application was presented in the court
of the Civil Judge at Allahabad for the recovery of a sum of Rs. 8,98,257-7-0 by attachment
and sale of certain items of immoveable property situate at Allahabad. 

1.3 The defendants filed an objection on 8-2-1952 in the court of the Civil Judge at Allahabad.
They contended that the court of the District Judge of Gwalior was a "foreign court" and its
judgment was a "foreign judgment". They pleaded that they had never submitted to the
jurisdiction of the District Judge of Gwalior and the said judge was therefore not competent
to pass a decree against them and the decree was consequently not executable. Lastly, it was
pleaded that the property sought to be attached did not form part of the assets of the late
Munshi Iswar Saran.
1.4 With the consent of the parties, the execution case, including the objection filed 'by the
judgment-debtors, was transferred to this Court under Section 24, Civil P. C.

STATEMENT OF ISSUES

The following issues were framed: 

1. Whether the court of the District Judge of Gwalior was a foreign court 

(a) on the date of the institution of the suit, or 

(b) on the date of the decree. 

2. If the aforesaid court is held to be a foreign court, did the defendants submit to the jurisdiction
of that court? If not, is the decree binding on them?

3. Whether the decree passed by the District Judge of Gwalior on 18-11-1948 is executable in
Uttar Pradesh?

4. Whether the properties sought to be attached form part of the assets of the late Munshi Iswar
Saran?"

SUMMARY OF ARGUMENTS
1. Whether the court of the District Judge of Gwalior was a foreign court.

1.1 Yes the Court of the Gwalior was a foreign Court. Section 2(6), Civil P. C. defines "foreign
judgment" as the "judgment of a foreign court". This definition has remained unaltered at all
material times but it is noteworthy that the meaning of the term "foreign court" which forms
a component part of this definition has undergone changes from time to time. This term, i.e.
"foreign court" has had no less than four different definitions from the date of the suit till
now. It is, therefore, necessary to examine all these definitions. 

1.2 It is true that, for the purposes of deciding this issue, the first two definitions only need be
considered. But, in order to appreciate the arguments advanced by the learned counsel on
either side on other issues, it will be necessary to refer to the third and the fourth definitions
also. Consequently, I propose to scrutinise and examine all the four definitions. 

1.3 The definition of the term "foreign court" is contained in Section 2(5), Civil P. C. This
definition stood, on the date of the suit, as follows. 
" 'foreign court' means a court situate beyond the limits or British India which has no authority in
British India and is not established or continued by the Central Government or the Crown
Representative." 

1.4 It has not been contended before me that Gwalior fell under any one of the aforesaid
categories. A Maharaja still ruled there. It is true that an Instrument of Accession had been
executed by him under Section 6, Government of India Act sometime between 3-6-1947 and
15-8-1947, but the sovereignty' still vested in the Maharaja. Later Gwalior, Indore and
several other states formed, with the consent and approval of the Government of India, a
union known as the Union of Madhya Bharat with the Maharaja of Gwalior as its
Rajpramukh. This new Union acceded to the Government of India on 13-9-1948, i.e. before
the decision of the suit.
1.5 The learned counsel for the parties differed as to the status of the Rajapramukh and the state
of Madhya Bharat. Arguments were advanced as to whether or not Gwalior or Madhya
Bharat was a sovereign state. I am, however, of the opinion that the political structure of the
state of Gwalior or Madhya Bharat is irrelevant for the purposes of determining whether or
not the Gwalior court was a "foreign court". This question is to be determined with reference
to the definition, cited above, which was in force on the date of the decree. 

1.6 Since it is nobody's case that Gwalior fell within the definition of a "Province", it is obvious
that the court of the District Judge of Gwalior was a "foreign court" within the meaning of
the definition (quoted above) which was in force on the date of the decree. 

1.7 The next change in the definition of the term "foreign court" was introduced on 26-1-1950
when the Constitution came into force. The President of India, acting under Article 372(2) of
the Constitution, issued the Adaptation of Laws Order, 1950. As a result thereof, the
following definition of "foreign court" was substituted in place of the old definition, viz. 

'foreign court' means a court situate beyond the limits of the States which has no authority in the
States and is not established or continued by the Central Government." 

1.8 The next and the last change in the definition of the terra "foreign court" came over on 1-4-
1951 when the Code of Civil Procedure (Amendment) Act (2 of 1951) came into force. By
this amending Act the Code of Civil Procedure was extended to Part B States also, and the
following definition of the term "foreign court" was substituted in place of the definition
previously in force, viz. 

'foreign court' means a court situate outside India and not established or continued by the
authority of the Central Government." It was then, for the first time, that the courts of Madhya
Bharat ceased to be foreign courts. This completes the history of the definition of the term
"foreign court". The effects of these changes will be discussed hereafter. 

1.9 For the reasons stated above, I hold that the court of the District Judge of Gwalior was a
foreign court both on the date of the institution of the suit and on the date of the decree.
2. If the aforesaid court is held to be a foreign court, did the defendants
submit to the jurisdiction of that court? If not, is the decree binding on them?

2.1 No, the defendant can’t submit to the jurisdiction of the Gwalior Court because that court is a
foreign court and I have no hesitation in holding that the defendant objectors never submitted
themselves to the jurisdiction of the court of the District Judge of Gwalior. .

2.2 It will be more convenient to split up this issue in two parts. For the present I propose to deal
with the first part only, viz. whether the defendants submitted to the jurisdiction of the
Gwalior court. The second part viz. whether the decree of the District Judge of Gwalior is
binding on them, can more appropriately be discussed with the next issue.

2.3 The parties are agreed that the judgment-debtors objectors do not reside and none of them
has ever resided in the territory of Gwalior or Madhya Bharat. It is, further, common ground
between the parties that the judgment-debtors objectors do not own and have never owned
any property in the aforesaid territory. There is also agreement between them on the question
that the defendants objectors never put in appearance in the court of the jDistrict Judge of
Gwalior. They throughout ignored that court and proceedings pending therein. In the
circumstances, I have no hesitation in holding that the defendants objectors never submitted
themselves to the jurisdiction of the court of the District Judge of Gwaiior.

3. Whether the decree passed by the District Judge of Gwalior on 18-11-1948

is executable in Uttar Pradesh?1

1.1 No, one although the decree-holder, by virtue of Section 43, Civil P. C., as it stood prior to
the amendment of 1951, could put the decree in execution, the judgment-debtors could
successfully plead that the decree sought to be executed against them was not a decree of a
competent court and was therefore not executable in the State of Uttar Pradesh.  The point
that has arisen for decision before me is whether the said decree can be executed in the State

1
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 of Uttar Pradesh. On this point the Privy Council case says beyond doubt that the decree is a
nullity in this State. 

1.2 Issue No. 3 and Second Part of Issue No. 2: The question that arises for decision is as to how
far the judgment of a foreign court is enforceable against the objectors. Section 13(a), Civil
P. C. makes the judgment of a foreign court binding between the parties, provided, inter alia,
it has been pronounced by a court of competent jurisdiction.

1.3 The law on the question of competence of a court to decide cases against foreigners is
contained in the Famous Privy Council case of -- 'Sirdar Gurdyal Singh v. Rajah At
Fariclkote',

In that case- Sirdar Gurdyal Singh v. Rajah At Fariclkote2

The rules laid down by the Privy Council in that case are that a court can exercise jurisdiction
over foreigners if they reside within its juris-diction or (residing outside) submit to its
jurisdiction, and if neither of these two conditions exists, the decree passed against a foreigner is
an absolute nullity outside the country of the forum by which it was pronounced. 

Within that country it will be a good decree if there is a special local legislation empowering the
court to exercise such jurisdiction. If there is no such special local legislation, the decree will be
a nullity even within the country in which the court passing it is situate. 

1.4 It remains to see whether there is any other law which takes this case out of the operation of
the rules laid down by the Privy Council. The first provision of law to be examined in this
connection is Article 261(3) of the Constitution. It runs as follows :-- 

"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." 

2
Ind App 171 (PC)
1.5 The territory of India is defined, as already stated, in Article 1(3) of the Constitution. This
definition came into existence when the Constitution came into force on 26-1-1950. Before
that date there was no "territory of India" as understood by this definition. Therefore, the
decree which was pronounced in this case before 26-1-1950 was not a decree passed by a
court situate within the territory of India. 

In that case-  'Janardan Reddy v. The State3

This view is supported by a decision of the Supreme Court in the case of -- 'Janardan Reddy v.
The State,. In that case the petitioners had approached the Supreme Court with a prayer to grant
them special leave to appeal under Article 136(1) of the Constitution against a judgment of the
Hyderabad High Court delivered prior to 26-1-1950. This Article empowers the Supreme Court
to grant such leave to appeal against any judgment, decree, determination, sentence or order in
any cause or matter passed or made "by any court or tribunal in the territory of India". The
Supreme Court held that the judgment of the Hyderabad High Court delivered prior to 26-1-
1950 was not a judgment by a court in the territory of India. Adopting this view, it is obvious
that the cases to which Article 261(3), Constitution of India will apply are the cases decided after
26-1-1950. The present case, as already stated, was decided much earlier than that date, and the
decree-holder cannot, therefore, take advantage of Article 261(3) of the Constitution. 

1.6 The above view, about the interpretation of Article 261(3) of the Constitution, has been
taken by almost every High Court in India, and all the cases to be referred hereafter, whether
cited on behalf of the decree-holder or the judgment-debtors, contain a discussion of Article
261 of the Constitution and adopt the view that this Article does not apply retrospectively to
decrees passed prior to the coming into force of the Constitution.

In that case- 'Sheo Tahal Ram v-. Binaek Shukul 4

3
AIR 1951 SC 124
4
AIR 1931 All 689
In that case a decree had been obtained by a plaintiff in the erstwhile Banaras State against a
person who was a resident of Mirzapur within British India. The decree was ex parte and the
defendant had not submitted to the jurisdiction of the Banaras court. It was put in execution in
Mirzapur under Section 44, Civil P. C. which at that time corresponded to Section 43, as it stood
prior to 1951. 

It was held by a Bench of this Court that, notwithstanding the provisions of Section 44 which
enabled the decree-holder to put the decree in execution the judgment-debtor had a right to plead
that the court, which passed the decree was a court without jurisdiction and, if he succeeded in
proving that, the decree could not be executed. The Court gave effect to the plea that the Banaras
court was a foreign court and it had no jurisdiction to pass a decree against an absent foreigner
when the latter had not submitted to its jurisdiction.

3.7 The same principle applies here. Therefore, one arrives at the conclusion that, although the
decree-holder, by virtue of Section 43, Civil P. C., as it stood prior to the amendment of
1951, could put the decree in execution, the judgment-debtors could successfully plead that
the decree sought to be executed against them was not a decree of a competent court and was
therefore not executable in the State of Uttar Pradesh. 

3.8 I am, therefore, of the opinion that neither Section 6(c), General Clauses Act nor Section 20,
Civil P. C. (Amendment) Act (2 of 1951) is of any help to the decree-holder. Nor do
Sections 43 and 44, Civil P. C. help him. It was conceded before me that Section 44A, Civil
P. C. also cannot be availed of by the decree-holder because Madhya Bharat is not a
"reciprocating territory". 

3.9 On the contrary, the judgment-debtors can take advantage of Section 6(c), General Clauses
Act. They can argue that the Amending Act 2 of 1951 has repealed the definition of 'foreign
Court' and has substituted a new definition bringing the Gwalior court to the level of a
domestic court, as distinguished from a foreign court. They can claim that under Section
6(c), General Clauses Act they retain the right which they formerly, possessed, viz., that of
treating the decree passed by the Gwalior court as a nullity. This was a vested right of which
 they could not be deprived. The judgment-debtors had not put in appearance in the Gwalior
court because they felt secure that, as the law then stood, the." decree passed by that court
would be a nullity.

3.10 As has been pointed out above, the courts in Gwalior or Madhya Bharat continued to be
foreign courts notwithstanding the accession of Madhya Bharat to India and notwidistanding
the unificaion of India brought about by the Constitution. In spite of the unification of India
and accession. of Madhya Bharat to India the court in Gwalior continued to be a foreign
court and the judgment-debtors' right of immunity from the decree of the Gwalior court
remained intact. It was because of the Code of Civil Procedure (Amendment) Act (2 of
1951) that the Gwalior court ceased to be a foreign court, It is, therefore, obvious that the
right of treating the decree as a decree of domestic court which the decree-holder now puts
forward is a right given by the repeal of an Act and not by an Act of State. This aspect of the
case appears to have been overlooked in most of the rulings cited by the learned counsel for
the decree-holder which shall. be discussed hereafter.

3.11 The learned counsel for the decree-holder cited the case of –

Lachmeshwar Prasad v. Keshwar Lal5

What was decided by their Lordships of the Federal Court in that case was that, if the law
changes during the pendency of an appeal, the appellate court can take notice of the change
and can mould the relief so as to conform to the amended law. But this case is no authority
for the proposition that an execution court can ignore a decree passed by a trial court and can
say that, in view of the altered circumstances, the decree which was a nullity on the date on
which it was passed has become a valid and good decree afterwards.

Chunnilal Kasturchand v. Dundappa Damappa6

5
AIR 1941 FC 5
6
AIR 1951 Bom 190
In the Full Bench case a decree was passed by a court at Sholapur in Bombay Presidency (within
British India) against a resident of Akalkot (a native State). Later on Akalkot merged in the
Bombay Presidency. The question that arose for decision was whether that decree could be
executed within the jurisdiction of Akalkot court after merger. In that case also the judgment-
debtors had not submitted themselves to the jurisdiction of the court which had passed the
decree. The Full Bench of the Bombay High Court held that Section 20(c), Civil P. C. was a
special local legislation within the meaning of the term as used by their Lordships of the Privy
Council in the aforesaid case 21 Ind App 171 (PC) (A) that the decree, though passed against an
absent foreigner by the Sholapur court, was executable within the jurisdiction of the country in
which that forum was situate and that since the territorial jurisdiction of that State had been
enlarged so as to include the territory of the former native State, the decree could be executed.

The present case is not a case of merger. Gwalior State has at no stage merged with the State of
Uttar Pradesh. I am, therefore, of the opinion that this decision is clearly distinguishable and
does not help the decree-holder.

Radhey-shiam v. Firm Sawai Modi7

The next case relied upon by the learned counsel for the decree-holder was a Full Bench decision
of the High Court of Rajasthan in that case a decree had been passed by a court situate in Jaipur
State against a defendant who was a resident of Dholpur State. The defendant had not submitted
to the jurisdiction of the court passing the decree. The decree was passed against an absent
foreigner and was therefore a nullity on the date on which it was passed. Later on both the States
merged in the State of Rajasthan and became part of one State.

Now, In our opinion, if any decree passed the courts at Dholpur and the courts at Jaipur arc
now courts of the same State and if a decree passed by a Jaipur court is executable within the
jurisdiction of the Jaipur court it cannot be held to be inexecutable at Dholpur if it is transferred
by the Jaipur court to the Dholpur court for execution under the provisions of the Civil
Procedure Code. Both Dholpur and Jaipur are parts of the same State and it would be absurd to
regard a decree executable in one district of the State not executable in its other district."
7
AIR 1953 Raj 204
Here Madhya Bharat and Uttar Pradesh continue to be two different entities. This ruling is thus
clearly distinguishable,

Patel Kala Bochar v. Patel Mohan Bhagwan8

Another authority relied upon by the learned counsel for the decree-holder was the case of --
'Patel Kala Bochar v. Patel Mohan Bhagwan', That case is exactly similar to the Rajasthan case
just discussed. In that case the decree had been passed by a court situate in Vala State against a
defendant who was a resident of Bhavnagar State. On the date of the decree the defendant was a
non-resident foreigner and the decree was one which could not be executed against him outside
the jurisdiction of the State whose court had passed the decree. But later on both the States had
merged in the State of Saurashtra and had become different districts of the same State. For the
reasons already stated, this case is also distinguishable.

Dominion of India v. Hiralal9

Another case on which reliance was placed by the learned counsel for the decree-holder was that
In that case a decree had been passed by the Munsif of Jamalpur on 15-5-1947. Jamalpur was a
part of British India on the date on which the decree was passed. As a result of the partition of
the country, Jamalpur fell within Pakistan. After 15-8-1947, the decree-holder sought to execute
the decree against the judgment-debtor in Calcutta. The decree was held not excutable. The
reason given by the Court was that Pakistan was not a "reciprocating territory" and since no
notification had been made permitting the execution of decrees of one Dominion in the other, the
decree-holder could not put the decree in execution against the judgment-debtor. Incidentally, it
was remarked that the crucial date on which the status of a court is to be looked at is the date of
the execution of a decree. It was held that notwithstanding the fact that the court of the Munsif of
Jamalpur was a domestic court on the date on which the decree was passed it had become a
foreign court on the date on which the decree was sought to be executed.

8
AIR 1953 Sau 16
9
AIR 1950 Cal 12
Saidul Hamid v. Federal Indian Assurance Co., Ltd., New Delhi10

Before commenting on this case, it is necessary to refer to another very similar case which
followed it. This latter case is reported In this case the decree was passed by the commercial
Subordinate Judge, first class, Lahore on 27-6-1947 i. e., before partition. It was sent for
execution to Delhi. A learned single Judge of the Punjab High Court who decided this case
followed the Calcutta case and held that, notwithstanding the fact that the court which passed the
decree was a domestic court on the date of the decree, it had become a foreign court since then
and, since no notification had been made under Section 44A, Civil P. C., permitting the
execution of decrees of one Dominion in the other, the decree could not be executed.

 Both cases over-ruled by that case which we have above mentioned.

Kishori Lal v. Shanti Devi11

They are no longer good law in view of a later pronouncement of their Lordships of the Supreme
Court In that case a wife had obtained an order under Section 490, Criminal P. C. against her
husband for the payment of a certain amount of maintenance to her from the court of a
magistrate at Lahore. This order was obtained before the partition of the country. Their
Lordships of the Supreme Court held that, even after partition, this order could be enforced.
Their Lordships observed at p. 442 as follows:

"An order which was good and competent when it was made and which was passed by a tribunal
which was domestic at the date of its making and which could, at that date, have been enforced
in an Indian Court, does not lose its efficacy by reason of the partition."

In view of this principle, I have no hesitation in saying that the view taken by the learned Judges
who decided the Calcutta and Punjab cases is no longer good law and does not help the decree-
holder.12
10
AIR 1951 Pun 255
11
AIR 1953 SC 441
12
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Premchand v. Danmal13

There a decree had been passed by a court at Kurnool, which is in Andhra State and which at
that time formed part ot Madras State. The defendant was a resident of Sirohi, a State in Rajas
than. In other words, he was an absent foreigner and had not submitted to the jurisdiction of the
court which passed the decree. When an attempt was made to execute the decree against him in
the State of Rajasthan it was held that the decree was not executable.

Subbaraya Setty and Sons v. S. K. Palani Chetty and Sons14

It is also lays down the same principle. In that case a decree had been passed on 28-3-1949 by a
court in Coimbatore in Madras Presidency against a defendant who was a resident of Arsikere in
Mysore State. He had not submitted to the jurisdiction of the Coimbatore court. It was held that
the decree could not be executed, notwithstanding the fact that Mysore State had become part of
the Indian Union.

CONCLUSION

As a result of all these authorities, I have come to the conclusion that the decree passed by the
District Judge of Gwalior against the defendants-objectors on 18-11-1948 was a nullity and
could not be executed in Uttar Pradesh and that the judgment-debtors had a right to question the
decree on the ground that the court passing it was not a court of competent jurisdiction. This
right of the judgment-debtors had remained intact notwithstanding the facts that Gwalior and
13
AIR 1954 Raj 4
14
AIR 1952 Mys 69 (T)
Madhya Bharat have acceded to the Indian Union, that since the coming into force of the
Constitution Gwalior and Madhya Bharat have become part of the Indian Union and that courts
in Gwalior have long ceased to be foreign courts.

The validity or otherwise of a decree is to be judged with reference to the date on which it was
passed and if it was a nullity on that date it cannot be made a valid and executable decree by
reason of subsequent events. The judgment-debtors, who never submitted to the jurisdiction of
the court which passed the decree, can still treat the decree as a nullity. I hold that it cannot be
executed against them.