JAMMU AND KASHMIR BANK LIMITED Vs. RAWINDAN

JUDGEMENT

(1.) The principal question which arises for determination in this appeal is whether - the respondent is a displaced person within the meaning of the Displaced Persons (Debts Adjustment) Act, 1951, hereinafter referred to as the Act. If it is held that he is a displaced person within the meaning of the Act, he may be entitled to certain benefits of the benevolent legislation in question. If not, he must be regarded as an ordinary debtor subject to all the rights and obligations of such debtor. Incidentally it has to beonstrued as to what is the meaning of the term "debt" within the meaning of the Act and what is the effect of the Act not being in force in the State of Jammu and Kashmir.

(2.) The facts giving rise to the present appeal may briefly be stated. The appellant, the Jammu & Kashmir Bank Ltd., filed a suit for the recovery of Rupees 81,487.50 in the court of the District Judge, Jammu. on 3rd Baisakh 2005 (Bikrami Samvat) against the defendants, Ravinandan and Kripal Chand, proprietors of Hindustan Trading Company, Jammu. The contention of the appellant-Bank was that the aforesaid defendants had opened an account with it on March 18, 1940 declaring themselves to be partners of Hindustan Trading Company. Certain advances were made to the said defendants against demand pronotes by way of collateral security. In as much as there was an overdraft which the defendants failed to liquidate despite demand, hence the suit. The suit was decreed ex parte on 27th Kar. 2005 "but later the ex parte decree was set aside on a motion of only Kripal Chand who contested the suit. It is not clear from the record whether the respondent before us was ever served. Be that as it may, the appellant's suit was decreed by. the District Judge, Jammu on 11th Maghar, 2006. It seems, part of the decretal amount was recovered by the appellant but for recovery of Rs. 54,472.91 the appellant applied for and obtained a transfer certificate for the courts at Delhi. An execution application was then moved in the courts at Delhi on November 18, 1961. The District Judge, Delhi, to whom this application was moved, assigned the matter to a Sub Judge, 1st Class. On January 9, 1969 the respondent filed objections under Section 47 of the Civil P. C. contending that the decree could not be executed against him as it was passed ex parte against him, that the Court which passed the decree was a foreign Court and so, its decree could not be executed unless it was established that the respondent had submitted to the jurisdiction of the foreign Court. It was contended that the decree was a nullity. It was further pleaded that in any case the decretal debt was a debt which fell within the ambit of the Act and the respondent being a displaced person. Section 37 of the Act barred the execution of the decree against him. The appellant resisted the objections. On the pleadings of the parties the following issues were settled:

(3.) The learned single Judge on a concession made by the learned counsel for the appellant came to the conclusion that the decree of the District Judge, Jammu was a decree of a foreign Court. The learned Judge, however, went on to hold that the decree was not a nullity despite its being that of a foreign Court. Reliance had been placed on certain principles of Private International Law to be found in Cheshire's book on Private International Law and the observations of Dicey in his 'Conflict of Laws'. A number of authorities were also noticed in this regard. It was held that the decree was executable in Indian Courts.