VAREED Vs. GOPALBAI PATEL

JUDGEMENT

(1.) The question involved in this appeal relates to the execution of a decree obtained against the appellant in the Court of the Subordinate Judge of Coimbatore. The decree was based on a promissory note and was passed on 24.10.1949. The appellant was not resident or present in the Province of Madras at the time the action was commenced and it is agreed that there has been no submission by him to the jurisdiction of the Court which passed the decree. It is also agreed that the decree, though ex parte, was a decree on the merits.

(2.) It is conceded that the Coimbatore Court was a "proper court", that is, a court which is authorised by law of the country to which it belongs, or under whose authority it acts, to adjudicate upon the matter involved in the suit. But it is not the same thing as being a court of competent jurisdiction for the purposes of private international law. In actions in personam a foreign court can be considered as a court of competent jurisdiction only under certain specified circumstances. The three cases in which it will be so considered are summarised by Dicey (Conflict of Laws, Sixth Edition, P. 351) as follows:-

(3.) It is clear from what has been stated in paragraph (1) above, and it is conceded by the respondent (subject to the argument dealt with in paragraph 8 below) that the decree on the date it was passed was not a decree of a competent court and that at that time it was incapable of execution outside what was then British Indian territory. The contention that we have to deal with in this case and which has found favour with the court below is that even though it was not possible to execute the decree in this State at the time it was passed it has since become capable of such execution by virtue of events that have transpired subsequent to the passing of the decree. The argument in essence is that consequent on the inauguration of the Indian Constitution on the 26th January, 1950 there has been a change of status in respect of the appellant and the Courts concerned and as a result the decree can now be executed within this State. According to the decree holder respondent the Constitution of India introduced a common citizenship throughout the country and the appellant as a citizen of India cannot now contend that the decree of a court in the Province of Madras is a nullity on the ground that he was an absent foreigner who had not submitted to the jurisdiction of the Court that passed the decree.