MOOSAKUTTY HAJEE Vs. JOSEPH

JUDGEMENT

(1.) The Petitioner before this Court is a trader doing business within the jurisdiction of the District Munsiffs Court at Tellicherry in the Province (State) of Madras. The respondent is also a trader residing and doing business in Trichur Cochin State. The respondent purchased certain articles from the petitioner at Tellicherry on credit. The petitioner filed Small Cause No. 344 of 1948 in the Court of the District Munsiff of Tellicherry for the balance due to him from the respondent. The respondent did not appear at the hearing and the decree passed against him was ex parte. That decree was transferred to the District Munsiffs Court, Trichur for execution. The respondent objected to the execution and the Court passed the following order.

(2.) This is the order which is sought to be revised. At the time that the decree was passed, the respondent was not subject to the jurisdiction of the Court that passed it, having been a non resident foreigner, and not having submitted himself to that Courts jurisdiction. The Court, however could entertain the suit and pass the decree as the cause of action for the suit arose within its jurisdiction. The decree was therefore good for internal purposes, though not for international purposes, that is to say, it could be executed within the jurisdiction of the Court which passed it as also any where within the jurisdiction of the Dominion of India against any property of the judgment debtor or even against the judgment debtor personally if such execution be available within the territory of the Dominion of India. It could not, however, have been executed outside the Dominion of India by proceeding against the person or property of the judgment debtor. There was an agreement between the Government of India and the Cochin State for reciprocal execution of decrees. Had the respondent submitted to the jurisdiction of the Court at Tellichery, that is, had he appeared and contested the suit and had there been a decree after contest, it could have been transferred to the Court at Trichur where the respondent was residing and executed against him personally or against his property. This not having happened and the decree having been one passed ex parte against a non resident foreigner at the time that it was passed, that is, in the year 1948, the decree could not have been executed, against the respondent personally or against his properties, in the Court at Trichur. The order passed by the Court below would have been right had it been passed in the year 1948. The contention raised on behalf of the decree holder-petitioner is that the change that has been brought about by the Constitution of India enables the execution of the decree against the respondent in the court at Trichur. It is contended that Travancore and Cochin which were independent States, became a single State on account of their integration and that the integrated State of Travancore - Cochin is one of the States specified in Part B of Sch. 1 to the Constitution of India and that the consequence of the Constitution of India is that the States of Madras and Cochin which were formerly independent States, became dependent States. Arts. 1 and 5 of the Constitution read as follows:

(3.) The question is whether the decree in this case which was passed before 26th January 1950, which could not have been executed at Trichur before that date, became so executable on account of the operation of the Constitution of India. The reason why the decree could not have been executed at Trichur at the time it was passed was that Trichur was in the Cochin State which was then an independent State whose subjects were not amenable to the jurisdiction of the Court at Tellichery which passed the decree, but the Cochin State ceased to be an independent State and the respondent ceased to be a foreigner so far as the Court at Tellichery is concerned on account of the Constitution of India, with the result that the only obstacle that there was to the execution of the decree in the Cochin State ceased to exist and the decree became executable. A similar question arose for the consideration of the Bombay High Court in Bhagwan Shankar v. Rajaram Bapu Vithal (AIR 1951 Bom. 125 (F.B.)). That was also a case of a decree passed ex parte by the Court at Sholapur against a resident of the State of Akalkot which was then an independent State, whose subjects were not amenable to the jurisdiction of the Court at Sholapur. Subsequently the Akalkot State got itself merged in Sholapur. The question was whether the decree passed by the Court at Sholapur which was not executable against the judgment debtor at the time it was passed, became so executable on account of merger of the Akalkot State in Sholapur. It was held that the decree could be executed. The contention of the judgment debtor was that he had a vested right in the shape of an immunity from execution of that decree which he should not be deprived of. This contention was answered by saying that the change is one brought about by an act of State about which it is not competent for him to object. I am in respectful agreement with the Full Bench decision of the Bombay High Court in the aforesaid case which applies to the facts of the present case. The circumstance that whereas in the said decision of the Bombay High Court it was a case of a merger of a State with another, whereas here it is a case of two States which were originally independent becoming dependent, makes no difference for the application of the principle. Chagla, C.J., comments upon the use of the word void by the Privy Council in the leading case of Gurdyal Singh v. Raja of Faridkot (ILR 22 Cal. 222) that when a decree is valid for any purpose, it can hardly be said to be void if that expression is meant to convey the idea of an absolute nullity which on the very hypothesis, it is not. It may be said to be a defective decree in that it had not then behind it the sanction for its operation beyond the territory of the Court within which it was situate. The decree in question could have been executed, as already stated, anywhere within the territory of the Dominion of India. The consequence of the Constitution of India is to enlarge the territory of India by including within it the territory of the State of Travancore - Cochin. The point of time that has to be regarded in considering the question of executability is not the time at which the decree was passed, but the time when it is sought to be executed because, notwithstanding the existence of any obstacle to execution at the time the decree was passed, if that obstacle is removed by the time the execution of the decree is sought, that obstacle cannot operate as it is only its continued existence that can stand in the way of execution. The order in question having been passed on 12th July 1950 when the only obstacle to the execution had ceased to exist, the order passed by the Court below refusing execution cannot be supported and has to be set aside.