SHALIG RAM Vs. FIRM DAULATRAM KUNDANMAL

JUDGEMENT

(1.) This is an appeal on a certificate of the High Court under Article 133 (1) (c) of the Constitution against the judgment and order of the High Court of Bombay. The appellant was the judgment debtor and the decree-holder is the respondent.

(2.) The decree was passed on August 26. 1981, in Summary Suit No. 2437 of 1930 by the High Court of Bombay against three defendants who-were residents of Parbhani District in the former State of Hyderabad. Before the decree was passed the appellant had applied for leave to defend and leave was conditionally granted on his depositing Rs. 5,000 within four weeks. This, he did not do and on his failure to do so an ex parte decree was granted for Rs. 52,032-7-0 including costs and future interest at 6 per cent per annum. The appellant did not file any written statement. The decree was transferred for execution to the District Judge, Bhir, in Hyderabad State. The respondent took out execution on June 18, 1954, in the Court of the District Judge, Bhir, to which objection was taken by the appellant, inter alia, on the ground that he had not submitted to the jurisdiction of the Bombay High Court which was a foreign Court and, therefore, the decree was a foreign decree and could not be executed in the Court at Bhir. This objection was overruled. Against that order an appeal was taken to the High Court and it was held by that Court on July 29, 1958, that the appellant had submitted to the Jurisdiction of 'the Bombay High Court and the appeal was. therefore, dismissed and the order of the Executing Court upheld. The Letters Patent appeal against that Judgment was dismissed in limine on October 24, 1958. It is against that order that the appeal has been brought on the certificate of the High Court under Art. 133 (1) (c).

(3.) A person who appears in obedience to the process of a foreign Court and applies for leave to defend the suit without objecting to the jurisdiction of the Court when he is not compellable by law to do so must be held to have voluntarily submitted to the jurisdiction of such Court. Shaikh Atham Sahib vs. Davud Sahib, (1909) ILR 32 Mad 469. Therefore, it cannot be said that this decree suffered from the defects which a foreign ex parte decree without such submission would suffer from. The order for transfer was made at a time when the Indian Code of Civil Procedure became applicable to the whole of India including the, former territories of Hyderabad State. The order of transfer was, therefore valid and effective and the decree could. Therefore, be executed.