LAXMICHAND Vs. TIPURI

JUDGEMENT

(1.) These five appeals have been referred to this Bench for decision because of an apparent conflict between two decisions of this Court. The first of these decisions was given by a Bench of three Judges sitting at Jaipur on 31-3-1953 (See Radhey Shiam v. Firm Sawai Modi Basdeo Prasad AIR 1953 Raj 204 (PB) (A) ). The exact question, which was before that Bench for decision, was whether the ex parte decree passed in the former State of Jaipur against a resident of the former State of Dholpur in 1947 could be executed at Dholpur after 26-1-1950, The Bench took the view that even though, at the time the decree was passed, it was the decree of a foreign Court against a non-resident foreigner who had not submitted to its jurisdiction, the political changes, that had taken place in India after 1947, would make the decree executable after 26-1-1950, In what was the former State of Dholpur. The Pull Bench followed the view taken in Bhagwan Shankar v. Rajaram', AIR 1951 Bom 125 (FB) (B) & 'Chunnilal Kasturchand v. Dundappa Damappa AIR 1951 Bom 190 CO, and dissented from the view taken in H.M. Subbaraya Setty and Sons v. Palani Chetty and Sons, AIR 1952 Mys 69 (D).

(2.) Seven days later followed a decision by another Bench of this Court in Prem Chand v. Dan Mal AIR 1954 Raj 4 (E), to which I was a party. In that case, the exact question, which arose for decision, was whether an ex parte decree passed by a Court at Kurnool in Madras Presidency in 1948 against a subject of the former State of Sirohi could be executed after 28-1-1950, in Sirohi in spite of its being a decree against a non-resident foreigner who had not submitted to its jurisdiction. The Bench took the view that the political changes which took place after the passing of the decree did not affect the character of the decree, and it continued to be a nullity and inexecutable in the area comprised in the former Sirohi State. The view taken in the two Bombay cases referred to above was dissented from, and the Mysore case referred to above was approved. It may be mentioned that the Division Bench had no knowledge of the earlier Full Bench case, and that is how the conflict came to arise.

(3.) Since then there have been cases decided by other High Courts, which disclose a similar conflict of opinion. The High Courts of Hyderabad vide Meherunnissa Begum v. Venkat Murli Monohar Rao (S) AIR 1955 Hyd 184 (F) and Madhya Bharat vide Brajmohan Bose v. Kishorilal Kishanlal (S) AIR 1955 Madh-B 1 (PB) (G) have taken the same view which has been taken in Radhey Shiam's case (A), while the High Courts of Allahabad (vide Maloji Rao Narsingh Rao v. Sankar Saran (S) AIR 1955 All 490 (H), Nagpur (vide Ramkisan Jankilal v. Harmukharai Lachminarayan (S) AIR 1955 Nag 103 (I) & Travancore-Cochin (vide P.C. Vareed v. Gopalbai Bahubai Patel Rambai Gopalbai Patel AIR 1954 Trav-C 358 (FB) (J) have taken the view expressed in Shah Prem Chand's case (E). The decision of the Supreme Court in Kishori Lal v. Sm. Shanti Devi AIR 1953 SC 441 (K) (decided on 18-9-1951) was not noticed in either of the two judgments of this Court, as probably it had not been published till then, and it will also have to be considered in arriving at what is the correct view of the law in this matter.