MURARI LAL SARAF Vs. BHAGWAN GURDYAL (FIRM)

JUDGEMENT

(1.) THE question we are called upon to decide in this appeal filed against an order of the Subordinates Judge City Judge Jammu is whether an ex parte decree passed by the Senior Subordinate Judge,; Amritsar, on 4 -6 -1951 against the respondent,; a State subject now designated as a permanent; resident of the State was executable in the State; Courts on the date when the appellant decree -holders application for execution instituted on 27 -10 -1951 corresponding to llth Katik 2008 was rejected by the executing Court of the aforesaid Subordinate Judge, Jammu, on 25 -10 -1952 corresponding to 10th Katik 2009. Section 44 of the State Civil P. C., as it stood" at the time when the decree in this case was sought to be executed by the appellant, read as follows.

(2.) FURTHER by the Constitution Application to Jammu and Kashmir Order, 1950 Art. 2613 of the Constitution became applicable to the State and it reads as follows:

(3.) THE position of law, as it now stands, is that the definition of foreign Court in the Civil Procedure Code has been amended and foreign Court now means "a Court situate beyond the limits of India which has no authority in India and is not established or continued by the Central Government of India" and the above mentioned provision of S. 44 has been substituted by the following, namely - "44. Execution of decrees passed by Courts in other States in India -The Government may by notification in the Government Gazette declare that decrees of any Civil or Revenue Court situate in India beyond the limits of the Jammu and Kashmir State or of any Court established or continued by the authority of the Central Government of India outside India Or any class of such decrees may be executed in the State as if they had been passed by Courts of the State." Vide the Code of Civil Procedure Amendment Act, 2011, published in the Government Gazette dated 12th Baisakh, 2011 corresponding to 24th April, 1954. The notification under the newly amended S. 44, Civil P. C., has also been issued and it is contained in the Government Gazette dated 14th Sawan, 2011 corresponding to 29 -7 -1954. According to this notification, the Government has declared: "that decrees of any civil court situate in India beyond the limits of the Jammu and Kashmir State or of any Court established or continued by the authority of the Central Government outside India may, if they cannot be executed within the jurisdiction of the Court by which they were passed be executed in the State as if they had been passed by Courts of the State." There is, therefore, no dispute now regarding the executability of decrees passed ex parte by Courts in other states of India in this State. But as already indicated even S. 44 and other relevant provisions of the State Civil P. C., as these stood at the time of the pendency of the execution application in the executing court, could not create an impediment in the execution of this decree. According to the ordinary canons of interpretation the definition of foreign Courtin our Civil Procedure Code at the time must be held subservient to the provisions in the Constitution of India, namely, Art. 5, conferring on the State subjects the citizenship of India and cl. 3 of Art. 261 by which final judgments or orders delivered or passed by civil courts in any part of the territory of India are made capable of execution anywhere within that territory. The definition of foreign Court contained in the Civil P. C. at that time must to the extent of its repugnancy to the provisions indicated above be held inoperative and of no effect.