MITHALAL Vs. KAPOORCHAND

JUDGEMENT

(1.) THIS is an appeal by the judgment-debtors Mithalal and another in an execution matter.

(2.) THE facts leading to this appeal may be shortly stated as follows. The respondents decree-holders Kapoorchand and another obtained an ex parte decree against the judgment-debtors appellants for money from the City Civil Court, bombay, on 18-10-1949. The respondents got this decree transferred to the court of Civil Judge, Balotra, and they filed an execution application on 10-5-1952, it appears that no notice under Order 21, Rule 22, C. P. C. , was issued against the judgment-debtor. appellants and some immovable property of theirs was attached and a notice under Order 21, Rule 66 was issued against them. It was in response to this notice that the appellants appeared in the execution court and objected to the execution of the decree in November, 1952. They raised a number of objections but only two of them are material for the purposes of the present appeal. The first objection was that the decree was of a foreign court as the courts in the Bombay State were in 1949, and, therefore, it was inexecutable in the courts of this State. In the second place, it was contended that a notice under Order 21, Rule 22, had not been issued against the judgment-debtors, 'and, therefore,' the executing court had no jurisdiction to take any step in execution of the decree. The Civil Judge Balotra who was the executing court by his judgment dated 5-111952, treated both these questions as of pure law and without framing any issue or recording any evidence, upheld the objections and dismissed the execution application. The decree-holders went in appeal to the learned District Judge, balotra, who set aside the judgment of the executing court and remanded the case with a direction that an issue as to the non-executability of the decree be framed and the parties given an opportunity to produce evidence in support of their respective contentions and to decide the case afresh on the merits in accordance with law. As for the contention relating to want of notice under Order 21, Rule 22, c. P. C. , the learned Judge held that it was immaterial. The judgment-debtors have now come up in appeal against the aforesaid judgment.

(3.) THE contentions of the appellants in this Court are the same as in the courts below. The first point to decide, therefore, is whether the learned District Judge has fallen into error in remanding the case for an issue to be framed as to the non-executability of the decree in question and for deciding it after giving opportunity to both parties to lead their evidence on this aspect of the case. I have no hesitation in saying that the order of the learned District Judge on this point is on the whole correct. It is true that the decree-holders in this case are seeking to execute a decree of a foreign court. It is also true that the appellants objected to the executability of this decree on the ground that it was a nullity in the courts of this State. I cannot help stating, however, that this was a very unsatisfactory way of raising the objection which was sought to be raised by the judgment-debtors. The judgment-debtors should have really stated the various facts on which they relied to induce the court to come to the conclusion that the decree was a nullity according to international law having not been passed by a court of competent jurisdiction, these facts being that the defendants judgment-debtors were nonresident foreigners, that the decree had been passed against them in absentum and that they had not submitted to the jurisdiction of the court which had passed the decree. Apart from that I should further like to make it clear that the learned executing judge was not right in rushing to the conclusion that the decree in this case was a nullity, merely because he thought that it was an ex parte decree of a foreign court. In this connection I should like to draw attention to Section 14 of the Code of Civil Procedure which lays down that when a certified copy of a foreign judgment is produced before a court, it must be presumed that the judgment was pronounced by a court of competent jurisdiction unless the contrary appears in the record, though such a presumption can always be rebutted by showing that the court had no jurisdiction to pass the decree. Reference may further be made to Section 13 of the Civil Procedure Code which enacts that a foreign judgment is conclusive on the matter directly decided by it between the same parties or their legal representatives or successors-in-interest except in those cases mentioned in the section itself. Thus, it would be open to the judgment-debtor, among other matters, to show that a foreign decree is not binding on him on the ground that it was not pronounced by a court of competent jurisdiction but until any such ground is properly established, the decree must be held to be binding and conclusive between the parties and cannot be condemned as a nullity.