K KRISHNAMURTHY Vs. G VENKATA RAO

JUDGEMENT

(1.) The question referred to the Full Bench is whether an ex parte decree passed by the erstwhile British Indian Courts against a resident of the then Hyderabad State and who had not submitted to the jurisdiction of those Courts, can be executed by the Courts of the Hyderabad State after 26th January,1950. Both the cases raise the same point. We will deal with this controversy with reference to S.A. No. 410/2 of 1952.

(2.) The respondent obtained on 27th September, 1946, an exparte decree against the appellant for a sum of Rs. 1,500 in the Court of the District Munsif, Kakinada. He applied for transfer of the decree under section 39 of the Civil Procedure Code, to the Subordinate Judge's Court, Warangal. An application for execution was filed in that Sub-Court in February, 1950. An objection was raised by the judgment-debtor that this being an ex parte decree of a foreign Court, it could not be executed but there should be a regular suit filed on the basis of that judgment under the provisions of section 13 of the Civil Procedure Code. This plea of the judgment-debtor was negatived by the trial Court as well as by the lower appellate Court. The judgment-debtor has come up in Second Appeal. It was first heard by Srinivasachari, J., who thought that this involved an important question of law in regard to which there was a strong cleavage of judicial opinion and should be decided by a Bench of this Court. Manohar Pershad and Kumarayya, JJ., before whom the appeal was posted thereafter, referred the matter to the Full Bench for the same reasons. The point for determination in this appeal is whether the exparte judgment given by a Court situate in the then British India against the appellant, a resident of Hyderabad State who was not amenable to the jurisdiction of the adjudicating Court and who had not in fact submitted to that Court, could be executed after the inauguration of the Constitution.

(3.) That the judgment in question is a foreign judgment cannot admit of doubt. A foreign Court was defined by section 2 (5) of the Civil Procedure Code as a Court situate beyond the limits of British India, which had no authority in British India and was not established or continued by the Governor-General-in-Council. This section was substituted by Act II of 1951 by the following :- "Foreign Court means a Court situate outside India and not established or continued by the authority of the Central Government."