BHAGWAN SHANKAR Vs. RAJARAM BAPU VITHAL

JUDGEMENT

(1.) THE applt. before us obtained a money decree in the Joint Second Class Subordinate Judge's Ct. at Sholapur. This decree was transferred to the Ct. of Nyayadhish, Akalkot. The darkhast for the execution of the decree was presented on 9-6-1945, and it was dismissed by the Dist. J. at Akalkot, It is from that order that this appeal is preferred.

(2.) THE J. D. was a foreigner quae the Ct. at Sholapur which passed the decree, and his contention was that as he had not submitted to the jurisdiction of that Ct. the Sholapur Ct. was not a competent Ct. as far as Akalkot was concerned and therefore the Akalkot Ct. could not execute a foreign judgment within the meaning of Section 13 Civil P. C. This contention was upheld by the Dist. J. Akalkot. Mr. Chitale before us controverts both the findings of the Ct. below.

(3.) HIS first contention is that inasmuch as Akalkot has now merged with the State of Bombay the J. D. is no longer a foreigner quae the Sholapur Ct. and therefore the Sholapur Ct. which passed the decree was a competent Ct. and there is no bar against the execution of the decree under Section 13 and his second contention is that the J. D. submitted to the jurisdiction of the Sholapur Ct, and even though he might be a foreigner by submitting to its jurisdiction, he made the Sholapur Ct. a competent Ct. for the purpose of Section 13. In support of the first argument. Mr Chitale reld. Upon a judgment of a Divisional Bench of Rajadhyaksha J. and Shah J. in Chunilal Kasturchand v. Dundappa, 52 Bom. L. K. 660. The facts of that case were very similar to the facts before us and the view that found acceptance with both the learned Judges was that although a Ct. may not be a competent Ct. quae a particular J. D. , if the status of J. D. alters by subsequent events and the J. D. is no longer a foreigner quae that Ct. the decree of that Ct. can be executed. It appears on a perusal of both the judgments that emphasis was laid on the fact that the Ct. that passed the decree had jurisdiction as judged by municipal law. In this case also it is not disputed that the Sholapur Ct. had jurisdiction judged by municipal law. But the difficulty which seems to present itself is this that although the Sholapur Ct. had jurisdiction under the municipal law, it is quite clear that under private international law it had no jurisdiction to pass a decree against a foreigner who had not submitted to the jurisdiction of that Ct. It seems to be equally clear on the authorities that the decree which a Ct. passes against a foreigner who has not submitted to its jurisdiction is a nullity. There-fore, the question that arises is whether a decree which is a nullity can cease to be a nullity and can become executable by reason of political events supervening. On the one hand we have the view taken by the two learned Judges that the J. D. had no substantive right in the decree passed against him being a nullity and that right could be taken away by reason of subsequent events. On the other hand, it is suggested that no event that subsequently transpires can possibly affect the nature of a decree which must be determined at the date when it was passed. If a decree is a nullity, it must continue to remain a nullity, whatever may subsequently happen. It is also suggested that the right given to a person to ignore the summons of a foreign Ct. would become entirely illusory if after exercising that option and refusing to submit to the foreign Ct. he finds himself bound by a decree passed by that Ct. by reason of political changes is his country or in the country in which the foreign Ct. was situated. Mr. Gokhale suggests that the judgment to which we have just refd. deserves reconsideration.