G S SANTHAJI RAO Vs. B CHINNAYYA SETHI

JUDGEMENT

(1.) The second judgment-debtor is the appellant. The respondent brought an action on 6-2-1950 in District Court of Bangalore for recovering a sum of money due to him on dealings. The defendants are residents of Anantapur. None of them appeared in the Bangalore Court to contest the suit with the result that an ex parte decree was obtained on 21-7-1950 for Rs. 19015-7-6 with subsequent interest and costs. The decree-holder got the decree transferred for execution on 8-1-1951 to the District Court, Anantapur,' within whose jurisdiction the judgment-debtors reside. In the latter Court the execution sought was by way of attachment and sale of immoveable properties of the defendants. Two notices were taken to the Judgment-debtors but they did not choose to appear in Court. The Court held that the service was sufficient and ordered attachment on 5-4-1951. The properties were attached on 22-1-1951 and 24-4-1951 and sale notice was ordered. At this stage, the appellant filed a petition in the lower Court under Section 47 C. P. C., for dismissal of the execution petition on the ground that the ex parte decree passed by the Bangalore Court against a non-resident foreigner who did not submit to its Jurisdiction was a nullity and therefore inexecutable outside the Mysore State. This objection did not find favour with the lower Court which thought that the only remedy which the-appellant had was to set aside the decree by appropriate proceedings. In that view the application was dismissed and further execution was ordered. It is that order that is under appeal now.

(2.) Mr. Venkatarama Sastri appearing in support of the appeal challenges the correctness of the decision of the District Judge. It is argued by him that the judgment rendered by the Bangalore Court was a foreign judgment within the meaning of Section 2(5), C. P. C. That being so it is a nullity by the international law and consequently could not be executed outside Mysore State. The foundation of this contention is the definition of a foreign Court as obtaining on the date on which the judgment was entered for the respondent, that Is 21-7-1950. Section 2(5), C. P. C., as it stood prior to Adaptation of Indian Laws Order, 1837, denned a foreign Court as a

(3.) Mr. Venkatarama Sastri called in aid the decisions of the Mysore High Court in - 'Subbaraya Setty and Sons v. Palani Chetty and Sons', AIR 1952 Mys 69 (A), of the Rajssthan High Court in --'Premchand v. Danmal', AIR 1954 Raj 4 (B) and of the Calcutta High Court in --'Firm Shah Kantilal v. Dominion of India', In the Mysore High Court it was ruled that a judgment rendered ex parte by the Subordinate Judge at Coimbatore against a resident of Arsi-kere in Mysore State before it became an Integral part of the Indian Union by virtue of the Constitution which came into force on 26-1-1950 was inexecutable even after that date. Similarly in the Calcutta case the view taken was that a decree passed by a Court in Baroda. State before it merged with the province of Bombay was a foreign decree within the meaning of the Civil Procedure Code and as such was unenforceable against the defendant who had not submitted to the Jurisdiction of the Baroda Court and that the latter had no authority over the defendant, Dominion of India. To the same effect is the decision of the Rajasthan Court.