RADHEYSHIAM Vs. FIRM SAWAI MODI BASDEO PRASAD

JUDGEMENT

(1.) IN view of the importance of the questions involved herein, a Division Bench of this Court has referred this case to a larger Bench of this Court for decision.

(2.) ON 24-3-1947 an ex parte decree was obtained by Radheyshiam and Radha Kishan against the firm of Sawai Modi Basdeo Prasad and Ramprasad of Dholpur for Rs. 2498/6/-plus costs in the court of the Civil Judge, Jaipur city. The defrndants at that time were the subjects of the then Dholpur State. The suit was entertained in the court of the Civil Judge, Jaipur, as the cause of action arose within the limits of the jurisdiction of that court. The defendants did not enter appearance and the proceedings against them were taken ex parte. At that time the Jaipur State and the Dholpur State were two different Indian States and for the purposes of execution the decrees of the courts of one State were considered to be decrees of the courts of a foreign State in the other. As the decree in this case was a personal decree passed by a court of the Jaipur State against the defendant who, being a subject of the then Dholpur State not residing within the State of Jaipur, was a non-resident foreigner, it could not be regarded by the then Dholpur State courts to have conclusively determined the rights of the parties in the meaning of Section 13, Civil P. C. , and as such it could not be executed there at that time. The Dholpur State merged into the Matsya Union on 18-3-1948 and subsequently the Matsya Union became part of the Rajasthan State from 15-5-1949. ON 23-5-1949 the decree-holders applied to the court of the Civil Judge, Jaipur, for transfer of their decree to the court of the Civil Judge, Dholpur, for execution and the decree was accordingly transferred on 24-5-1949. The Civil Judge, Dholpur, sent the decree for execution to the court or the Munsif, Dholpur. The judgment-debtors appeared before the Munsif and raised an objection that the decree was not executable in the territories of the former Dholpur State, as the judgment-debtors were not subject to the jurisdiction of the Jaipur court at the time of the passing of the decree. In other words the objection was that as the decree was a personal decree of a foreign court against a non-resident foreigner who had not submitted to the jurisdiction of that court it could not be considered to be a decree of a competent court in the meaning of Section 13, Civil P. C. The learned Munsif disallowed this objection on 29-10-1949 but on appeal the Civil Judge, Dholpur, on 20-12-1949, accepted the objection of the judgment-debtor and held that the decree was not executable within the territories of the former Dholpur State as it could not be regarded to be a decree passed by a competent court because it was a personal decree of a foreign court against a non-resident foreigner who had not submitted to the jurisdiction of such court. The decree-holders filed an appeal in this court against the aforesaid order of the Civil Judge. This appeal was at first heard by a Single Judge, who referred it to a Division Bench on 29-9-1950 and the case was again referred to a larger Bench on 5-12-1952. The following two points arise in this appeal : 1. Whether even after the merger of the former States of Jaipur and Dholpur in the State of Rajasthan the decree passed by the Civil Judge of Jaipur on 24-3-1947 before merger, which was a personal decree against the judgment-debtor, who was a subject of the then Dholpur State and who had not submitted to the jurisdiction of the then Jaipur State court is not executable within the territories of the former Dholpur State, on the ground that the- decree not being one of a competent court within the meaning of Section 13 (a), Civil P. C. is a nullity? 2. Whether the court of the Civil Judge, Dholpur, had no jurisdiction to execute the decree because it had not been transferred to him for execution through the court of the District Judge, Bharatpur, in contravention of the provisions of Order 21 Rule 5 Civil P. C. (2a) It has been admitted by the learned counsel of both the sides that the decree in the present case which had been passed by the court of the Civil Judge of Jaipur was in the nature of a personal decree and that at the time it was passed it was a decree of a foreign court in so far as the then Dholpur State was concerned. It is also admitted that the judgment-debtor in this case was the resident of the then Dholpur State who had not submitted to the jurisdiction of the Jaipur State court. It is also not disputed that before the merger of the two States into the State of Rajasthan this decree was not executable within the territories of the then Dholpur State.

(3.) IT may be pointed out that an objection was at once taken by the judgment-debtor in --'22 Cal 764 (J)', which is not the position in the present case. No such objection was ever taken by the judgment-debtor in the court at Dholpur or even in the court of first appeal. This objection has been raised far the first time in this Court at the time the case was heard by a Division Bench of this Court The next case on the point is --'prakash-Chandra v. Baldeoram', AIR 1914 Cal 786 (1) (K ). In that case the District Judge of Gaya sent a decree for execution to the court of the Subordinate Judge ot Palamau at Rancni. The transferee court took an objection that the decree should not have been forwarded direct to him but that it should have been sent to the court of the Judicial Commissioner of Chhota Nagpur in order that he might send it to him. The transferee court therefore refused to proceed in the matter. The learned Judges of the Calcutta High Court held that in refusing to proceed in the matter the Subordinate Judge acted erroneously, for, if he had no jurisdiction to deal with the matter he should have returned the papers to the District Judge of Gaya in order that he might adopt the correct procedure. The principle laid down in --'debidayal Sahu's case (J)', was followed in this case. In--'kunja Becharisingh v. Tarapada Mitra', AIR 1919 Pat 324 (L), the principle laid down by the Calcutta High Court in --'detaidayal Sahu's case (J)', was followed. Dalipsingh J. in --'pyarelal Debisahai v, Naunemal Pannalal', AIR 1933 Lah 839 (M), placed reliance on the aforesaid authorities of the Calcutta High Court and the Patna High Court cases, but felt that the point was a difficult one and the arguments which had been advanced by the party against the view which had been accepted in this case were not altogether devoid of force. Din Mohammad J. in --'barkat Ram v, Bhagwan Sahai', AIR 1940 Lah 394 (N), followed the ruling of--'air 1933 Lah 839 (M)'. In --'juluri Venkataratnam v Balabhadruni Chennayya', AIr 1940 Mad 214 (O), the authority of the Calcutta High Court was dissented from. IT was held that the order transferring a decree to another court takes effect from the date on which it is passed and the transferee court has jurisdiction to entertain, application for execution from the date of the passing of the order of transfer. The decree under Order 21, Rule 5 C. P. C. , it has been further held, has to be sent to the District Court for mere transmission to the transferee court and therefore no application lies to the District Court and Order 21, Rule 8 has no application ta such a case.