GANGULI ENGINEERING LTD Vs. SUSHILA BALA DASI

JUDGEMENT

(1.) This is an appeal from ex , parte order passed by Sri G. S. Chatterjee, Subordinate Judge, 6th Court, 24-Parganas allowing an objection under Section 47 of the- Code of Civil Procedure and dismissing Money .Execution Case No. 1 of 1953 as not maintainable. The facts are briefly as follows. The appellant Ganguly Engineering Ltd. obtained a money decree for Rs. 10462 7/- including costs in Money Suit No. 1 of 1940 of the 2nd Additional Court of Subordinate Judge, Alipore. The decree was obtained on 31-5-1941 and after obtaining the decree the appellant started Money Execution Case No. 10 of 1941. This execution case was stayed under Section 34, Bengal Agricultural Debtors Act on 28-8-1944, the debtor having made an application before the Debt Settlement Board at Jhenidah in the district of Jessore for settlement of the debt comprising the decretal amount. The money execution ease was still stayed under Section 34 of the Bengal Agricultural Debtors Act on the date of the partition, namely, 15-8-1947. After the partition the Special Officer, Debt Conciliation Board at Jhenidah who had taken the charge of the cases before the Debt Settlement Board made an award under Section 19 (1) (a) Bengal Agricultural Debtors Act by which the debt was determined at Rs. 10562/7/- and this amount was made payable in 11 annual instalments, the first ten instalments being of Rs. 1000/- each and the last instalment being Rs. 562/7/-, the first instalment being payable in Chaitra, 1355 B. S. This settlement was made on 3-12-1949 and the settlement was communicated by an intimation to the Subordinate Judge's Court at Alipor'e where the Money Execution Case No. 10 of 1941 was pending, and on 6-1-1950 the Subordinate Judge then in charge of the court recorded an order referring to the intimation received from the Debt Settlement Board, Jhenidah, that the debt had been settled and noting that the execution case had abated. Thereafter, on 4-4-1952 the present appellant filed an application for setting aside the order of abatement, but' ultimately the appellant did not press the application to a hearing, but he filed a petition for withdrawing the same with leave to file a fresh execution petition. The learned Subordinate Judge on 5-1-1953 passed an order permitting the decree-holder to withdraw the petition filed on 4-4-1952 at his own risk, after pointing out that O. 23 R. 1 of the Code of Civil Procedure had no application to the present case. On the same date, that is, 5-1-1953 the present execution case was started. As soon as notices under Order 21, Rule 22 C. P. C. had been served on the judgment-debtors, Sm. Sushila Bala Dasi and another, they appeared and filed an objection under Section 47 of the Code of Civil Procedure objecting that the execution case could not proceed in view of the fact that the Money Execution case had abated and the decree had become merged in the award of the Jhenidah Debt Settlement Board. The objection was fixed for hearing on 25-7-1953. On that date the decree-holder appellant filed an application for time, but the application for time was rejected and thereafter the objection under Section 47 filed by the judgment-debtors was decided ex parte. The learned Subordinate Judge decided that in view of the award of the Debt Settlement Board and in view of the fact that the previous execution case had abated no fresh execution case was maintainable. The Money Execution Case No. 1 of 1953 was thereupon , dismissed as not maintainable. Against this ex parte order the decree-holder has filed the present appeal.

(2.) It is contended on behalf of the decree-holder appellant that after the partition of India and the creation of two dominions, the award of a Board or a Special Officer in Pakistan could no longer be taken notice of by an Indian Court and therefore the order passed on 6-1-1950 that the first execution case had abated was an order made without jurisdiction and therefore Void, and there was nothing therefore to bar the present execution case, namely, Money Execution Case No. 1 of 1953. The question for decision, therefore, is whether any execution case can proceed in respect of the decree which the appellant obtained on the 31st of May, 1951 in spite of the award made by the Debt Settlement Board, Jhenidah,

(3.) The general principle of law is that any decision by a foreign Court or . Tribunal or a foreign quasi-judicial functionary is not enforcelable in a country unless such decree or decision is embodied in a decree of the court of that con try. In other words, ordinarily no decree or I order of adjudication by a Pakistan authority Would be binding in India unless such decree or order of adjudication is given additional I force by a decree obtained in India by the interested party. Mr. Banerjee appearing for the respondents has urged that once a proceeding had started before a court or a Tribunal or any proceedings would go on in spite of the fact that the country had been divided and that the court or functionary is now in a foreign 'state. This, however, is contrary to the accepted principle of international law. A reference to the adaptations made in the Bengal Agricultural Debtors Act would also show that the law provides that the courts in India are to take notice of decrees and awards of the Debt Settlement Boards or Special Officers having powers of the Debt Settlement Board when they are situated in Indian territory. Section 18 (3) of the Indian Independence Act, 1947 made the provision that