# [1963] 2 S.C.R. 619

- **Citation:** [1963] 2 S.C.R. 619
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeal No. 17!1 of 1956
- **Bench:** J. L. Kapur, A. K. Sarkar, K. c. DAS GuPTA, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1963-2-s-c-r-619-2527
- **Pages:** 6

## Headnote

Execution of Decree-Trans/e"' to a court UJ/iere Indian
Cnde of Civil Proceaure not extentle<l -If exeoutabk-Foreign
aecre.e-Foreigners Act, 1946 (31of1946), s. 2(a) (iii)-Coae
of Civil Procedure (Act V of 1908), 81. 38, 39, 43, 44.
A decree passed in favour of the respondent by a
Subordinate Judge of West Bengal was transferred for execu·
lion ·on August 28, 1950 to the Court of the Additional
District Judge of Morena in what was originally Gwalior
State and subsequently became a part of the United States of
'Madnya Bharat· and aftn the Constitution State of Madhya
Bharat. On the date when the decree wa. transferred, IJle
1962
Raj Raj"end,a Sardar
Maloji Marsingh
Rao Skito,/1
y
Shankar Saran
Das Gupta J.
1962
A/1ri/ 30.
1161
HtmWoj Nrtltu Rsm
••
Lalji Ra.i fl: S on.i
oJ Barikura
620 SUPREME COURT REPORTS (11163]
Courts in Madhya Bharat were governed by the Indian Code
of Civil Procedure as adapted by 1he Madhya Bharat Adapt·
atio11 Order of 1948 but the power of transfer by the Court
of Bankura was governed by ss. 38 and 39 of the Indian Code
of Civil Procedure. On the judgment debtor's objection the.
application for execution was dismissed but the appeal against
that order was allowed by the High Court. The appellant
contended that the Court had no power to transfer the decree
under s. 38 to the Court in Morena. The question wa• with
regard to the applicability of the Indian Code of Civil
Procedure and whether the decree sought to be executed
was a decree of a foreign Court or not.
field, that the Court at Morena not being a court,- to
which
Indian Civil Procedure Code applied, the decree
could not be transferred to it under the Indian Code of
Procedure and SS. 38 and 39 were inapplicable to justifv
such a transfer.
The Indian Civil Procedure Code was not extended to
Madhya Bharat till April
I, 1951, by the Act 2 of 1951.
The decrees of foreign courts were under the Gwalior Court
of which Morena was a part, not executable under s. 233
which required a suit to be brought on the basis of foreign
decree under not the Madhya IJharat Court of Civil Procedure.
Helcl, further, that the Foreigners Act is not relevant
for the purpose of finding out whether the decree was a
foreign decree or not because the execution of decree is
gove~ned by the provisions of the Code of Civil Procedure
anrl not by F orcigners Act.
A ser-tion of an enactment has to be intcrprf".ted as it
i~ and a Court cannot read it as if its language wa~ diffe:-
en t from what it actually is.

## Text

2 S.C.R.
SUPREME COURT REPORTS
619
therefore as i• stood after the amendment of June
3, 1951 is of no assistance to the decree-holder.
Section 43 was further amended by Act IC of
195! and the words as they stand at present have
already been set out. The appellant rightly does
not contend that s. 43 as it now stands applies to
the present decrees ..
Our conclusion therefore is that the Allahabad
Court bad no power to execute the decree either
under sections 38 or under ss. 43 or 44 of the Code
of Civil l'rocrdure. Therefore, eTcD if the deeree was
not a foreign decree, the decree-holder's application
for execution was rightly dismissed.
Tbe appeal is accordingly dismissed with
costs.
Appeal dismissed.
HANSRAJ NATHU RAM
v.
l.ALJI itAJA & SONS OF BANK.URA
( J. L. KAPUR, A. K. SARKAR, K. c. DAS
GuPTA, N. RAJAGOPALA AYYANGAR and
J. R. MUDHOLKAR, JJ.)
Execution of Decree-Trans/e"' to a court UJ/iere Indian
Cnde of Civil Proceaure not extentle<l -If exeoutabk-Foreign
aecre.e-Foreigners Act, 1946 (31of1946), s. 2(a) (iii)-Coae
of Civil Procedure (Act V of 1908), 81. 38, 39, 43, 44.
A decree passed in favour of the respondent by a
Subordinate Judge of West Bengal was transferred for execu·
lion ·on August 28, 1950 to the Court of the Additional
District Judge of Morena in what was originally Gwalior
State and subsequently became a part of the United States of
'Madnya Bharat· and aftn the Constitution State of Madhya
Bharat. On the date when the decree wa. transferred, IJle
1962
Raj Raj"end,a Sardar
Maloji Marsingh
Rao Skito,/1
y
Shankar Saran
Das Gupta J.
1962
A/1ri/ 30.
1161
HtmWoj Nrtltu Rsm
••
Lalji Ra.i fl: S on.i
oJ Barikura
620 SUPREME COURT REPORTS (11163]
Courts in Madhya Bharat were governed by the Indian Code
of Civil Procedure as adapted by 1he Madhya Bharat Adapt·
atio11 Order of 1948 but the power of transfer by the Court
of Bankura was governed by ss. 38 and 39 of the Indian Code
of Civil Procedure. On the judgment debtor's objection the.
application for execution was dismissed but the appeal against
that order was allowed by the High Court. The appellant
contended that the Court had no power to transfer the decree
under s. 38 to the Court in Morena. The question wa• with
regard to the applicability of the Indian Code of Civil
Procedure and whether the decree sought to be executed
was a decree of a foreign Court or not.
field, that the Court at Morena not being a court,- to
which
Indian Civil Procedure Code applied, the decree
could not be transferred to it under the Indian Code of
Procedure and SS. 38 and 39 were inapplicable to justifv
such a transfer.
The Indian Civil Procedure Code was not extended to
Madhya Bharat till April
I, 1951, by the Act 2 of 1951.
The decrees of foreign courts were under the Gwalior Court
of which Morena was a part, not executable under s. 233
which required a suit to be brought on the basis of foreign
decree under not the Madhya IJharat Court of Civil Procedure.
Helcl, further, that the Foreigners Act is not relevant
for the purpose of finding out whether the decree was a
foreign decree or not because the execution of decree is
gove~ned by the provisions of the Code of Civil Procedure
anrl not by F orcigners Act.
A ser-tion of an enactment has to be intcrprf".ted as it
i~ and a Court cannot read it as if its language wa~ diffe:-
en t from what it actually is.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 17!1 of 1956.
Appeal
from the judgment and order . dated
N ovcm ber J 5, 1954, of the former Madhya Pradesh
High Court at Gwalior in C. F. A. No. 9 of 1!151.
Ganpat Rai, for the appellant.
N. 8. Bindra and D. D. Sharma for· the
re11pond1ont.
. ·•
J
,
.
\
2 S.C.R.
SUPREME COURT REPORTS
621
1962. April 30. The Judgment of.the Court
was delivered by
KAPUR, J.-This is an appeal against the
judgment and order of the High Court of Madhya
Bharat at Gwalior on a certificate of that Court
under Art. 133 (l) (c) and like Civil Appeal No. 24
of 1961, raised the question of the applicability of
the Indian Code of Civil Procedure and the question
whether the decree sought to be executed was a decree of a foreign Court or not. It is a reverse case in
the sen8e that the decr;,e sought to be executed
was passed by a Court in West Bengal-a province
of what was British India. In the appeal the appellant is the judgment-debtor and the decree-holder
is th" respondent.
On Deoember :i, 1949, a decree was passed in
favour of the respondent by the Subordinate Judge,
Bankura, in the West Bengal and a oertificate of
transfer was applied for on July 27, 1950, granted
on.August 8, 1950, and was transferred for extcution
on August 28, 1950. On September 25, 1950, the
decree-holder took out execution in the Court of
the Additional District .Judge, Morena, in what was
Gwalior State and subsequently became a part of
the Unit-t1d State named Madhya Bharat and after
the Constitution the Part B State of Madhya
Bharat. On the judgment-debtor's objection the
application for execution was dismissed on December 29, 1950 but the appeal against that order was
allowed by the High Court on November 15,
1954.
It is unnecessary to set out the ;arious sections of the Indian Code of Civil Procedure or to
trace the various steps by which ss. 43 and 44
were amended in that Code ; that we have done
in C. A. No. 24 of 1960 decided today. It was
contended before us by the judgment-debtor that
IHI
HinsrfJ; Nothu Ram
••
!. alji Roja ~ Sons
of Bankura
EapurJ.
Haru'oj NailuJ Rrm
..
lAlj i Ra;o ct Sonr
of Bankwra
KuputJ.
622
SUPREME OOURT REPORTS [1963]
tho Court had no power to transfer the decree
under s. 38 to tho Court ic Morena.
On the date
when the decree wa.s transferred tho Courts in
Madhya Bh"rat were governed by the Indian Code
of Civil Procedure as adapted by the Madhya
Bharat Adaptation Order of l 941l but the power of
transfer by the Court at Banknra was governed by
ss. 38 and 31J of the Indian Code of Civil Procedure.
Under the Code, the Court to which the decree
could be transferred was one established in what
was British India because tho Code extended to
the territories of what was British India and it
was not till, the coming into force of Act II of
1951
':Jn April I, 1951, th"t the Indi~n Code was
applied to the "Territories of India" which comprised Parts A, Band C State.
It was contended by Mr. N. S. Bindra counsel
for the respondent that under BB. 38 and 3!) of the
Indian Code of Civil Pror:edure a decree could he
sent for execution to any Court, the expression
"Court" being understood as a place where justice
was administered and for this reliance was placed
on Man11w11/a
Go'Undan
v. Knmrtmppa Re,ddy (1)
where the word "Court" in s. 622 of the old Civil
Procedure was defined as a place where justice is
judicially administered ; but that was in a case
whore it had to bl'! determined whether a District
Registrar was Court for the purpose of Civil ProclJ·
dure Code. The definition as given in that case is
.. -
not of any help in determining tho question now
k~
before us because what we have to see is whether
the Court at Morena even though it administered
justice judicially was covered by the word "Court'.'
in s. 38 or not.
As we have said above "Court"
in th'l section means a court to which the Indian
Code of Civil Procedure applies and not an_t Court.
Similarly at the relevant time in ss. 40 and 42 of
the Indian Code of Civil Procedure "Court" Dea&-
\
2 S.C.R.
SUPREME OOURT REPORTS
623
ssarily meant a Court to which Indian Civil Proce·
dure Code applied i. e., a Court in what was
British India. The Court at Morena not being such
a Court tho decree could not be transferred to it
under tho Indian Code of Civil Procedure and
ss. 38 and 39 were inapplicable to justify such .a
transfer.
The decree, it was then argued, was executable under s. 43 of the Indian Civil Procedure Code
aa amended by the Adaptation of Laws Order of
June 5, 1950, which had retrospective effect as from
January 26,
1950. After the amendment that
section reads :-
"S 43 Any decree passed-
(a) by a Civil Court in Part .B State, or
(b) .............................................. ..
( c) ............................................... .
may, if it cannot be executed within the juris·
diction of the Court by which it was passed;
be executed in manner herein provided within
the jurisdiction of any Court in the States".
The aI'gument was that in the present case
the expression "in a Part B State" should be read
as if the expression was "in a Part A State". This
again is not permissible for us. Section 43 has to
be interpreted as it is and a Court cannot read it as
if its language was different from what it actually
is. It is not permissible for this court to amend
the law as suggested.
Besides the Indian Civil
Procedure Code was
not extended to Madhya
Bharat till April l, 1951, by Act II of 1951. The
decrees of foreign courts were, under the Gwalior
Code of which Morena was a part, execut&.,ble neither
under s. 233 which required a suit to be b"ought on
the basis of foreign decrees nor under .the Madhya
1962
HannGj Nathu Rom
v.
l11/ji Raja ti: SfltU
oJ Bankura
Kapur J.
lgfl
H tml'IOJ Nat/tu Ram
••
Lalji lloja ct SonJ
•f Bo,..turo
624
SUPREME COURT REPORTS [1003]
Bharat Code of Civil Procedure. The dAcree t.her&-.
fore could not be executed in Morena under s. 43
of the Indian Codo of Civil Prooodure .
It was next argued that the appellant firm
wai; not a foreigner because it di<l not fall under
the foreigners Act (Act 31 of 1946) and referenc"
was made to s. 2 (al (iii) which was a.mended by
Aot 38 .of 1947 on Deoemher 15, 1947; but this Act
ill not reltwant for the purpose of finding out whe·
ther the dooree was a. foreign decree or not beoause
the execution of decrees is governed by tho provisioW! of the Code of Civil Pro·~edure and not by the
Foreigners Act.
Under the former a deorce can
be executocl by a Court which pa•ecd the docree or
to which it was transferred for execution and the -
deoree which could be transferred has to be a
decree passed under the Code and the Court to
which it could be transferred has to be a Court
which was governed by the Indian Code of Civil
Prooedure.
But in the present case it was not
transfnred to a Court which at the time of the
transfer was governed by the Indian Code of Civil
Procedure and therefore the transfer \\'as ineffeotive
for the purpose of execution and as we havo said
above, s. 43 of th" Indian Code was i1111.pplioable
bt1fore Act II of l!J51 to the State of Madhya.
.Bharat. It is not nocossary to go into the other
questions raised if the above two questions are ,focided against the respondent.
We therefore allow this appeal, set aside the
judgment a.nu order of the High Court and rostoro
that of the excouting court. The appellont will
have ita costs in the court.
Appeal allowed.
..