# • • • NARHARI SHIVRAM SHET NARVEKAR v. PANNALAL UMEDIRAM

- **Citation:** [1976] 3 S.C.R. 149
- **Court:** Supreme Court of India
- **Decided:** 1976-01-16
- **Case number:** Civil Suit No. 203 of 1955
- **Bench:** R. S. Sarkaria, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narhari-shivram-shet-narvekar-v-pannalal-umediram-6742
- **Pages:** 11

## Headnote

149
('ode of Civil Procedure-Ss. 38 and
39-Transfer of a decree
dated
29-6-1960 passed by the Bombay lligh Court to the Goa Court for executionT¥hether it is a "foreign decree' within the rneaning of sec. 2(6), C.P.C. and
whether the High Court a "foreign court" within the n1eaning of s. 2(5) especially »'hen the parties subjected themselves to the jurisdiction of that Court
by prosecuting their case upto a certain stage.
,
('onstitution of India-Art. 261 (3 )-Meaning of
the
word
"according
to law"-Whether they refer to the "law in force" during the pendency of the
appeal or the "law in force" on the date of transfer of the decree for executionScope of Art. 261(3 ).
Decree-Executability of a decree is not a vested right-Extension of the
provisions of Civil Procedure Code to a State later on does not affect the decree.
Jn the Civil Suit No. 203 of 1955, on the original side of the Bombay High
,Court, filed by the decree-holder /respondent against the appellant/judgmentdebtor for recovery of certain amount of money, summons were served on the
judgment-debtor who after filing his written staten1ent absented himself,
and
did not take any further part in the proceedings of the Court..1. resulting in a
decree dated 29-6-1960. for Rs. 65,953.79.
On 20-12-1961. Goa became a part
of India and was made a Union Territory of India by the Constitution (Twelfth
Amendment) Act, 1962 passed on 27-3-1962.
The decree-holder applied to the
Bornbay High Court for transferring the decree to Goa Court for execution and
by t.n order dated 28-8-1963 the decree was transferred to the Goa Court for
execution. The execution application before the Executing Cou1t at Panjim
filed on 21-1-1964 was dismissed on 26-4-1965, holding that the decree transferred to it by the Bombay High Court was not executable.
An appeal
was
preferrfd to the Additional Judicial Commissioner on 1-6-1965 and the appellant/
Judg1nent-debtor filed his reply.
During the pendency of the appeal, the Code
of Civil Procedure was extended to Goa on 15-6-1966 by the Goa, Daman and
Diu (Extension of the Code of Civil Procedure and Arbitration) Act (30) of
1965 and repealing the Portu.(?uese Code. The Additional Judicial Commissioner by its order dated 28-6-1967 held that in view of Art. 261(3) of -the
Constitution, the decree passed by the Bombay High Court could not be treated
as. nullity and, \Vas therefore, executable .
On appeal by certificate, the appellant/judgment-debtor contended ( 1) that
the decree passed by the Bombay High Court qua Goa Court was a nullity being a decree of a foreign court. Even if the decree· was not a nullity it could be
executed by a Goa court if the original decree had been appn1Yed bv the Goa
Court under s. 50 of the Portuguese Code; (2) that the Bombay High Court
transferring _the decree for execution to the Gon Court under ss. 38 and 39 of
the C. P. C. was without jurisdiction inasmuch as the C. P. C. had not been
ap,plied to Goa when the order of transfer was passed: (3) that as the provisions
of the C.P.C. were applied to Goa after the order of the Executing Court
\vas passed and a vested right had accrued to the appellant/judgment-debtor. the
decree continued to be inexecutable and could not be validated by Art. 261 (3)
of the Constitution.
The respondent/decree-holder coritended (i) that inasmuch as the judgmentdebtor had anpeared and participated in the suit for some time the decree
passed by the Bombay High Court could not be said tO\ be a nullity (ii) that as
the C.P .C. was made applicable while the appeal was pending before the Additional Judicial Commissiorler, Goa the decree became clearly ·executable and
the order of transfef of the decree by the Bombay High Court stood validated:
and (iii) that in view of the provisions of Art. 261(3) of the Constitution of
Jrtdia, there was no bar to the execution of the' decree, which was passed by a
court which was in the territory of India.
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150
SUPREME COURT REPORTS
[ 197 6) 3 S.C.R.
A
Dismissi

## Text

y
•
•
•
NARHARI SHIVRAM SHET NARVEKAR
v.
PANNALAL UMEDIRAM
January 16, 1976
(R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.J
149
('ode of Civil Procedure-Ss. 38 and
39-Transfer of a decree
dated
29-6-1960 passed by the Bombay lligh Court to the Goa Court for executionT¥hether it is a "foreign decree' within the rneaning of sec. 2(6), C.P.C. and
whether the High Court a "foreign court" within the n1eaning of s. 2(5) especially »'hen the parties subjected themselves to the jurisdiction of that Court
by prosecuting their case upto a certain stage.
,
('onstitution of India-Art. 261 (3 )-Meaning of
the
word
"according
to law"-Whether they refer to the "law in force" during the pendency of the
appeal or the "law in force" on the date of transfer of the decree for executionScope of Art. 261(3 ).
Decree-Executability of a decree is not a vested right-Extension of the
provisions of Civil Procedure Code to a State later on does not affect the decree.
Jn the Civil Suit No. 203 of 1955, on the original side of the Bombay High
,Court, filed by the decree-holder /respondent against the appellant/judgmentdebtor for recovery of certain amount of money, summons were served on the
judgment-debtor who after filing his written staten1ent absented himself,
and
did not take any further part in the proceedings of the Court..1. resulting in a
decree dated 29-6-1960. for Rs. 65,953.79.
On 20-12-1961. Goa became a part
of India and was made a Union Territory of India by the Constitution (Twelfth
Amendment) Act, 1962 passed on 27-3-1962.
The decree-holder applied to the
Bornbay High Court for transferring the decree to Goa Court for execution and
by t.n order dated 28-8-1963 the decree was transferred to the Goa Court for
execution. The execution application before the Executing Cou1t at Panjim
filed on 21-1-1964 was dismissed on 26-4-1965, holding that the decree transferred to it by the Bombay High Court was not executable.
An appeal
was
preferrfd to the Additional Judicial Commissioner on 1-6-1965 and the appellant/
Judg1nent-debtor filed his reply.
During the pendency of the appeal, the Code
of Civil Procedure was extended to Goa on 15-6-1966 by the Goa, Daman and
Diu (Extension of the Code of Civil Procedure and Arbitration) Act (30) of
1965 and repealing the Portu.(?uese Code. The Additional Judicial Commissioner by its order dated 28-6-1967 held that in view of Art. 261(3) of -the
Constitution, the decree passed by the Bombay High Court could not be treated
as. nullity and, \Vas therefore, executable .
On appeal by certificate, the appellant/judgment-debtor contended ( 1) that
the decree passed by the Bombay High Court qua Goa Court was a nullity being a decree of a foreign court. Even if the decree· was not a nullity it could be
executed by a Goa court if the original decree had been appn1Yed bv the Goa
Court under s. 50 of the Portuguese Code; (2) that the Bombay High Court
transferring _the decree for execution to the Gon Court under ss. 38 and 39 of
the C. P. C. was without jurisdiction inasmuch as the C. P. C. had not been
ap,plied to Goa when the order of transfer was passed: (3) that as the provisions
of the C.P.C. were applied to Goa after the order of the Executing Court
\vas passed and a vested right had accrued to the appellant/judgment-debtor. the
decree continued to be inexecutable and could not be validated by Art. 261 (3)
of the Constitution.
The respondent/decree-holder coritended (i) that inasmuch as the judgmentdebtor had anpeared and participated in the suit for some time the decree
passed by the Bombay High Court could not be said tO\ be a nullity (ii) that as
the C.P .C. was made applicable while the appeal was pending before the Additional Judicial Commissiorler, Goa the decree became clearly ·executable and
the order of transfef of the decree by the Bombay High Court stood validated:
and (iii) that in view of the provisions of Art. 261(3) of the Constitution of
Jrtdia, there was no bar to the execution of the' decree, which was passed by a
court which was in the territory of India.
B:
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SUPREME COURT REPORTS
[ 197 6) 3 S.C.R.
A
Dismissing the appeal, the Court,
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JIELD : ( 1) Where a party appears before the court, the decree of the court,
even if it is a foreign court, is not a nullity. [154-D]
Raj Rajendra Sardar Maloji Marsingh Rao Shitole v. Sri Shankar Saran and
.1
others, L1963] 2 S.C.R. 577, distinguished and held not applicable.
Shaligra1n v. Dau/at Rani, [1963] 2 S.C.R.
574 and Lalji Raja & Sons v.
Finn HanSraj Nathuran1, [1971] 3 S.C.R. 815, applied.
(2) The right of the judgment-debtor to pay up the decree passed against
him cannot be said to be a vested right, nor can the question of executability
of the decree be regarded as a substantive vested right of the judgment-<1ebtor.
A t<Ji'tiorari, the execution proceedingsr being purely a matter of procedure it is
well-settled that any change in law which is made during the pendency of the
cause \vould be deen1ed lo be retro-active in operation· and the Appellate Court
is bound to take notice of the change in law. The Additional Judicial Commiss1Jner was competent to take notice of the change in the law. [154 E--F,
155 Gl
Mohanlal Chunilal Kothari v. Trihhovan Haribhai Tarnboli, [1963] 2 S.C.R.
707, 715-716; Gununafapura Taggina Matadil Kotturswami v. Setra Veerava and
others, A.T.R. 1959 S.C. 577, 579 and Jose De Costa and another v. Bascora
#---
Sedashiva Sinai Naroornin and others, A.I.R. 1975 S.C. 1843, 1849, fo11owed.
(3) The proposition adumbrated v:iz., that the executability of the decree
v.·as a vested right which could not be taken av.1ay by the applicability of the
Code of Civil Procedure to Goa during the pendency of the appeal is wrong,
s~nce the executability of the decree could not be considered to be a vested right.
[155 F-G]
Lalji Raja and Sons. v. Finn Hansraj Nathurani [1971] 3 S.C.R. 815, fo1lo\ved.
(4) The contention thatj as the Code of Civil Procedure was not applicable
to Goa at the tirne when the Bombay High Court passed the order transferring
the decree to the Goa Court, the order of transfer was absolutely Without jurisuiction WflS wrong.
[156 C-Dl
As the decree ·was passed by the Bombay High Court, s. 38 of the Code of
Civil Procedure would clearly apply and the decree passed by the Bombay High
Court was not a foreign decree. It is true that at the time when the Bombay
1-ligh Court passed the order of transfer, the Code of Civil Procedure had not
been applied to Goa.
But, that does not put the respondent/decree-holder out
of Court.
The decree could be transferred and was valid and executable. 'But,
because of infirmity, it could not be executed so long as the C.P.C.- was not
made applicable to Goa. Thus, the only bar \vhich stood in the \Vay of the
execution of the decree was the non-applicability of the provisions of the C.P.C.
to Goa. This was, however, not an insurmountable bar or an obstacle and the
bar or the obstacle disappeared the moment the Code of Civil Procedure \vas
applied to Goa on 15-6-1966. [156 D-F]
HELD FURTHI;:R: (5) The instant case is a fit case in which the doctrine
of eclipse would apply and ~he wall or the bar which separated Bombay from
Goa having disappeared, there was iio impediment in the execution of a decree.
The decree lay dormant only so far as no bridge \Vas built between Bombay and
Goa but as soon as the bridge was constructed in the shape of the application
of the provisions of the Code of Civil Procedure to Goa the decree became at
once executable. [156 F-G]
(6) Jn the instant case, the decree passed by the Bombay High Court having
been passed by a Court of competent jurisdiction and not being a nullity because
the judgment-debtor had appeared and participated in the proceedings of the
Court to some extent, and the order of transfer under s. 38 of the Code of Civil
Procedufe also not having suffered from any inherent lack of jurisdiction, the
decree became enforceable and executable as soon as the Code of Civil Procedure \vas applied tO Goa.
[157 E-F}
•
(
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NARHARI v. PANNALAL (Fazal Ali. !.)
15 I
BhaRwan Shankar v. Rajara1n Bapu Vithal, A.J.R. 1951
Born.
125,
127,
A
approved.
(7) Art. 261(3) of the Constitution enjoins that a decree shall be executable
in any part of the territory of India, according to law. In the instant case, the
decree was passed by the Bombay High Court after the Constitution came into
force and Art. 261 (3) would apply to the decree passed by the Bombay High
Court. The Article would also _apply to Goa because at the time when
the
application for execution was made in Goa Court, the Constitution had already
been made applicable to that State also. (158 C-D]
(8) It is true that at the time when the Executing Court dismissed the suit
of the decree-holder /respondent, the Code of Civil Procedure had not
been
<lpplied and the Portuguese Code continued to apply but after the application
of the Code of Civil Procedure by virtue of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration) Act, 1965; the Portu~
guese Code which was in force in Goa was clearly repealed and the present
case does not fall within any of the clauses mentioned in the saving provisions
oi s. 4 of the Act.
Thus, when the Civil Procedure Code was made applicable
to Goa during the pendency of the appeal,
the appellate Court, namely,
the Additional
J udiciul
Commissioner was bound to decide the matter
in accordance with the law that was
in force.
Hence, the contention
the matter in accordance with the law that waS1 inforce.
Hence, the contention
that the words "according to law" in Art. 261(3) would mean that the decree
v.ould be executable only in accordance with the law in force in the Portuguese
Code is not correct. [158 B-F]
[Jose De Costa and another v. Bascore Sadashiva Sinai Narcornin and 01/iers,
.-\.1.R. 1975 S.C. 1843, 1849 followed.]
B
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OvrL APPELLATE JURISDICTION : Civil Appeal No. 909 of 1968.
(From the judgment and order dated the 28th June, 1967 of the
Judicial Commissioner's Court of Goa, Daman and Diu in Civil Appeal
No. 105 of 1965).
E
B. N. Lokur and A. G. Ratnaparkhi for the appellant.
D. V. Patel and P. N. Bhardwaj for the respondent.
The Judgment of the Court was delivered byFAzAL Au, J.
This is a judgment debtor's appeal on a certificate
of fitness granted by the Additional Judicial
Commissioner,
Goa,
Daman & Diu and arises under the following circumstances.
The decree holder/respondent had brought a suit on the original
side of the Bombay High Court being Suit No. 203 of 1956 against
the
appellant/judgment debtor for recovery of certain amount of
money. The Bombay High Court passed a decree for Rs. 65,953.79
on June 29, 1960. In the suit brought by the decree-holder/respondent summons were served on the defendant/ judgment debtor who
filed his written statement and thereafter absented himself and did not
take any part in the proceedings of the Court.
On December 20,
1961 Goa became a part of India and was made a Union Territory
of India by the Constitution (Twelfth Amendment) Act, 1962 passed
on March 27, 1962. Thereafter the decree-holder respondent applied
to the Bombay High Court for transferring the decree to Goa Court
for execution.
This prayer was allowed by the Bombay High Court
and by its order dated August 28, 1963 the decree was transferred
11-390 SCT/76
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152
SUPREME COURT REPORTS
[1976] 3 S.C.R.
to the Goa Court for execution.
In pursuance of the order of 11c
Bombay High Court the decree-holder filed an execution suit before
the Executing Court at Panjim on Janumy 21, 1964. The Executing
Court however by its order dated April 26, 1 %5 held that the decree
transferred to it by the Bombay High Court was not executable and
accordingly
dismissed the execution.
Thereafter the decree-holder
filed a memo of appeal before the Additional Judicial Commissioner
on June I, 1965 and the appeal was admitted on June 5, 1965. On
February 24, 1967 the judgment debtor/appellant filed his reply. While
the appeal was pending before the Additional Judicial Commissioner
the Code of Civil Procedure was extended to Goa on June 15, 1966.
Accordingly tlie Additional Judicial Commissioner by its order dated
June 28, 1967 held that the decree was executable and he accordingly
remitted the case to the Executing Court for proceeding in accordance
with the law.
The Additional Judicial Commissioner also held that
in view of Art. 261(3) of the Constitution of India the decree passed
by the Bombay High Court could not be treated to be a nullity and
was, therefore, clearly executable.
In support of the appeal Mr. B. N. Lokur submitted three main
contentions before us :
(I) that the decree passed by the Bombay High Court qua Goa
Court was a nullity being a decree of a foreign Court.
Even if the decree was not a nullity it could be executed
by a Goa Court if the original decree had been appro\·eci
by the Goa Court under s. 50 of the Portuguese Code;
(2) that the order of the Bombay High Court transferring the
decree for execution to the Goa Court under ss. 38 & 39
of the Code of Civil Procedure was without jurisdiction
inasmuch as the Code of Civil Procedure had not been
applied to Goa when the order of transfer was passed; and
(3) that as the provisions of the Code of Civil Procedure
were applied to Goa after the order of the
Executing
Court was passed and a vested right had accrued to the
appellantljudgmcnt debtor the decree
continued to be
inexecutable and could not be validated by Art. 261 ( 3)
of the Omstitution of India.
Mr. D. V. Patel appearing for the respondent/decree-holder submitted that as the judgment-debtor had appeared and had participated
in the suit for some time the decree passed by the Bombay High Court
could not be said to be a nullity. Secondly it was contended that as
the Code of Civil Procedure was made applicable while the appeal
was pending before the Additional Judicial Commissioner, Goa, the
decree became clearly executable and the order of transfer of the
decree by the Bombay High Court stood validated.
Thirdly it was
argued that in view of the provisions of Art. 261 (3) of the Constitution of India there was no bar to the execution of the decree which
was passed by a Court which was in the territory of India.
The sheet-anchor of the argument of the learned counsel for the
appellant/judgment-debtor, that the decree passed by the
Bombay
•
NARllARl v. PANNALAL (Fa~al Ali, !.)
153
High Court was a nullity either on the ground that it was passed by
A
a foreign Court or on the ground that the transfer was invalid under
s. 38 of the Code of Civil Procedure, was the decision of this Court
in Raj Rajendra Sardar Maloji Marsingh Rav Slzito/e v. Sri Shankar
Smw1 and Ors.(I).
In that case it appears that the appellant had
instituted a suit in the Court in Gwalior State in May 1947.
The'
respondents did not appear before the Court and the Gwalior Court
passed a decree ex parte in November 1948. On September 14, 1951
B
the Gwalior Court transferred the decree for execution to Allahabad.
as a result of which the appellant before the Supreme Court filed an
application for execution of the decree before the Allahabad Courl.
It was mainly contended before this Court that the decree being that
of a foreign Court was a nullity and the execution application was nm
nlaintainablc.
Jn these peculiar circun1stanccs this Court, after considering the entire Jaw on the subject, concluded as follows :
C
"Our conclusion therefore is that the Allahabad Court
had no power to execute the deem; either under section 38
or under ss. 43 or 44 of the Code of
Civil
Procedure.
Therefore, even if the decree was not a foreig11 decree, the
decree-holder's application for execution was rightly dismissed."
D
An analysis of
Shitole's case (supra)_ would clearly show that the
facts in that case arc clearly distinguishable from the facts in the
present case and there are indeed a large number of distinguishing
features in the case indicated above which arc not at all applicable
to the present case. In the first place the decree in Shitole's case( 1)
was admittedly passed by the Gwalior Court in I 94 7 when Gwalior
being a princely State the Court which passed the decree was undoubtedly a foreign Court.
Secondly, the judgment-debtors/defendants did not appear before the Gwalior Court at all as a result of
which an ex parte decree was passed.
According to Private International Law it is well settled that an ex parte decree of a foreign
Court is a nullity if the party against whom a decree is passed docs
not appear at all and does not take part in the proceedings of the
Court.
Thirdly, it would appear that the provisions of Art. 261 (3)
of the Constitution would not apply to the facts of Shitole's case(')
because the constitutional provisions not being
retrospective
they
could not apply to decrees passed before the coming into force of the
Constitution.
ln view of these circumstances therefore it cannot be
said that Shito/e's case(') referred to above is of any assistance to
the appellant in deciding the issues involved in this case.
On the other hand the decision in Slzaligrum v. Daulat Ram(')
appears to be directly in point so far as the facts in the present case
arc concerned. In that case also a decree was passed by the Bombay
High Court which was in the territory of India and to which the provisions of the Code of Civil Procedure applied. The appellant appearE
F
G
ed before the Court and applied for leave to defend and thereafter
absented himself.
The decree was thereafter transferred to the Court
H
(I) [196.3] 2 S.C.R. 577.
(2) [1963] 2 S.C.R. 574.
A
154
SUPREME COURT REPORTS
[1976] 3 S.C.R.
of District Judge, Bhir in Hyderabad State. This Court held that the
decree was executable and observed as follows :
B
"A person who appears in obedience to the process of a
foreign Court and applies for leave to defend the suit without objecting to the jurisdiction of the Court when he is not
compellable by law to do so must be held to have voluntarily submitted to jurisdiction of such Court Shaikh A tham
Sahib v. David Sahib [1909] I.L.R. 32 Mad. 469. Therec
fore it cannot be said that this decree suffered from the defects which a foreign ex-parte decree without such submission would suffer from. The order for transfer was made at
a time when the Indian Code of Civil Procedure became applicable to the whole of India including the former territories
of Hyderabad State."
In Lalji Raja & Sons v. Firm Hansraj Nathuram(I) this Court
reiterated the view taken in Shaligram's case (supra). It was also
~
pointed out in the aforesaid case that where a party appears before
the Court the decree of the Court even if it is a foreign Court is not
D
a nullity.
Learned counsel appearing for the appellant however submitted
that since the Code of Civil Prqcedure was not applicable to Goa the
decree became inexecutable and this being a vested right could not be
taken away by the application of the Code of Civil Procedure to Goa
E
during the pendency of the appeal before the
Additional
Judicial
Commissioner. It seems to us that the right of the judgment-debtor
to pay up the decree passed against him cannot be said to be a vested
)
right, nor can be question of executability of the decree be regarded
as a substantive vested right of the judgment-debtor. A fortiorari the
execution proceedings being purely a matter of procedure it is well
F
settled that any change in law which is made during the pendency
of the cause would be deemed to be retro-active in operation and the
Appellate Court is bound to take notice of the change in law.
Ill
Mohan/al Chunilal Kothari v. Tribhowan Haribhai Tamboli(') it was
clearly ruled by this Court that the Appellate Court was b.ound to
apply the law as it was found on the date of the judgment. In this
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connection this Court observed as follows :
H
"But it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling
the first. Hence, the Court was bound to apply the law as
it was found on the date of the judgment. Hence, there is
no question of taking away any vested rights in the landlords."
(!) [19711 3 S.C.R. 815
(2) [19631 2 S.C.R. 707, 715-716.
•
NARHARI v. PANNALAL (Fazal Ali,!.)
155
To the same effect is the decision of this Court in Gummalapura
A
Taggina Matada Kotturuswami v. Setra Veeravva and others(') where
this Court observed as follows :
"It is well settled that an appellate Court is entitled to
take into consideration any change in the law (vide the case
of Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri
-1940 FCR 84)"
B
A similar view was taken by a recent decision of this Court in
Jose De Costa and another v. Bascora Sadashiva Sinai Narcornin and
others(') where this Court observed as follows :
"Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or
appeals, it would be appropriate to bear in mind two wellcstablished principles.
The first is that "while provisions
of a statute dealing merely with matters of procedure may
properly, unless that construction be textually inadmissible,
have retrospective effect attributed to them, provisions which
touch a right in existence ai the passing of the statute are
not to be applied retrospectively in the absence of express
enactment or necessary intendmcnt" (see Delhi Cloth and
General Mills Co. Ltd. v. lnco111e-tax Commr.-54 Ind.
App. 421 (AIR 1927 PC 242). The second is that a right
of appeal being a substantive right the institution of a suit
carries with
it the implication that all successive appeals
available under the law then in force would be preserved to
the parties to the suit throughout the rest of the career of the
suit."
In these circumstances, therefore, we arc unable to accede to the
contention of the appellant that the Additional Judicial Commissioner
was not competent to take notice of the change in the law .
As regards the argument of the learned counsel for the appellant
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that the exccutability of the decree was a vested right which could
F
not be taken away by the applicability of the Code of Civil Procedure
to Goa during the pcndency of the appeal, the decision of this Court
in Lalji Raja & Sons' case (supra) is a clear authority againstthe proposition adumbrated by the learned counsel for the appellant. In that
case this Court appears to have considered this point in all its comprehensive aspects and was of the_opinion that the executabi!ity of the
decree could not be considered to be a vested right.
In this conG
gection this Court made the following observations :
"Therefore the question for decision is whether the nonexecutability of the decree in the Morena court under the
law in force in Madhva Bharat before the extension of 'the
Code' can be said to ·be a right accrued under the repealed
law. We do not think that even by straining the language
H
of the provision it can be said that the non-executability of
(I) A.i~R. (1959)-S:C~ 577, 579
(2) A.l.R.1975S.C.1843, 1849.
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SUPREME COURT REPORTS
(1976] 3 S.C.R.
a decree within a particular territory can be corn;.idcred as a
privilege. . . . . . . . . . . . . . . . . . . . . . . All that has happened
in view of the extension of 'the Code' to the whole of India
in 1951 is that the decree which could have been executed
only by courts in British India arc now made executable in
the whole of India.
The change made is one relating to
procedure and jurisdiction ................... It was tk
invalidity of the order transferring the decree to the Morena
court that stood in the way of the decree-holders in executing their decree in that court on the earlier occasion and not
because of any vested rights of the judgment-debtors ..... .
. . . . . . . . . . . . By the extension of the 'the Code· to Madhya
Bharat, want of jurisdiction on the part of the Morena court
was remedied and that court is now made competent to execute the decree:·
It was then argued that as the Code of Civil Procedure was not
applicable to Goa at the time when the Bombay High Court passed
the order transferring the decree to the Goa Court, the order of. transfer was absolutely without jurisdiction.
We are. however, unable to
agree with this contention. To begin with, as the decree was passed
by the Bombay High Court, s. 38 o[ the Code of Civil Procedure
would clearly apply because the decree passed by the Bombay High
Court was not a foreign decree. It is true that at the time when the
Bombay High Court passed the order of transfer, the Code of Civil
Procedure bad not been applied to Goa.
But that does not put the
respondent! decree-holder out of Court.
The decree could be transferred and was valid and executable. But because of an impediment
or an infirmity it could not be executed so long as the Code of Civil
Procedure was not made applicable to Goa. Thus the only bar which
stood in the way of the execution of the decree was the non-applicability of the provisions of the Code of Civil Procedure to Goa. This
was, however, not an insurmountable bar or an obstacle and the bar
or the obstacle disappeared the moment the Code of Civil Procedure
was applied to Goa on June 15, 1966. It is common ground that
this was done during the pendency of the appeal before the Additional
Judicial Commissioner passed the impugned order on June 28, 1967.
In these circumstances, therefore, it seems to us that this is a fit case
in which the doctrine of eclipse would apply and the wall or the bar
which separated Bombay from Goa having disappeared there was no
impediment in the execution of the decree.
The decree lay Jormant
only so far as no bridge was built between Bombay and Goa but as
soon as the bridge was constructed in the shape of the application of
the provisions of the Code of Civil Procedure to Goa the decree
became at once executable.
In Bhagwan Shankar v. Rajaram Bapu Vithal( 1) Chagla, C.J. as
he then was, while delivering the opinion of the Full Bench of the
Bombay High Conrt, observed as follows :
"Therefore, as far as this particular decree was concerned, as the defendant, we are assuming, did not submit to the
(!) A.l.R. 1951 Born. 125. 127.
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NARHARl \'. PANNALAL (Fa::.al Ali, J.)
jurisdiction of the Sholapur Court, quae the Akalkot Court,
the judgment of the Sholapur Court was a foreign judgment
passed by a Court not of competent jurisdiction & therefore
the decree could not be executed in the Akalkot Court so
long as the Sholapur Court continued to be a foreign Court.
13ut once it is conceded that the decree was not a nullity &
it was valid & binding as far as the Sholapur Court was concerned. then there is 110 difficulty, with respect. in understanding & appreciating the judgn1e11t
~rhich u·e lnn·e to
consider in this Full Bench, because if the charac/er of the
Akalkol Court changes & if the status of the defendanl alters
hecause of that facl, then the i111pedi111e111 which was initially
tliere in the decree being enforced in the Akalkot Court disappears & the decree which was
unenforceable till that
change came aboul becomes enforceable & executable in the
Akalkot Court.
This is not in any way violating private
international law.
Private
international law remains the
same. But under the circumstances of the case the Shoiapur
Court no longer being a foreign Court quae the Akalkot
Court, the question of private international law does not
arise at all.
The decree is then being executed under the
Municipal Law & clearly under the Municipal Law the decree
is executable as it has been passed by a Court of competent
jurisdiction."
15 7
It would appear therefore that an idcutical phenomenon had taken
place in the case before the Bombay High Court and the Full Bench
held that the moment the decree became executable and enforceable
the status of the defendant/judgment-debtor was altered and the decree
became executable. On a parity of reasoning, therefore, in the present
case also the decree passed by the Bombay High Court having been
passed by a Court of competent jurisdiction and not being a nullity
because the judgment-debtor had appeared and participated iu the
proceedings of the Court to some extent, and the order of transfer
under s. 3 8 of the Code of Civil Procedure also not having suffered
from any inherent lac,k of jurisdiction, the decree became. enforceable
and executable as soon as the Code of Civil Procedure was applied
to Goa. As we have indicated above it was the duty of the Appellate
Court, namely the Additional Judicial Commissioner, to take note of
the change in law, namely, the applicability of the Code of Civil Procedure to Goa and the repeal of the Portuguese Code which was in
force before the provisions of the Code of Civil Procedure were applied. The Additional Judicial Commissioner was, therefore, fully justified in taking the view that the decree was executable and the bar of
inexecutability came to an end, when the provisions of the Code of
Civil Procedure were applied to Goa.
Mr. Patel appearing for the respondent submitted an alternative
argument that even if the transfer of the decree under s. 38 of the
Code of Civil Procedure was not valid, under the Portuguese Code
there was no provision which required transfer of the decree to that
Court before the same could be executed. Counsel for the appellant
objected to this argument on the ground that it was never raised at
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SUPREME COURT REPORTS
[J 976] 3 S.C.R.
any stage of the case and being a question of fact as to whether or
not there was any such provision in the Portuguese Code it should
not be entertained. In these circumstances, we do not think it necc'-
sary to go into this question, particularly when the order of the Additional Judicial Commissioner can be upheld on other grounds mentioned by us.
'
Finally it appears that this case is clearly covered by the principle'
contained in Art. 261 (3) of the Constitution of India which rum thus :
"Final judgments or orders delivered or passed by civil
courts in any part of the territory of India shall be capable
of ~~ecution anywhere within that
territory according to
law.
This is a constitutional provision which enjoins that a decree shall be
executable in any part of the territory of India according to law.
It
is obvious that in the instant case the decree was passed by the Bombay
High Court after the Constitution came into force and this Article
would, therefore, clearly apply to the decree passed by the Bombay
High Court.
The article would also apply to Goa because at the
time when the application for execution was made in a Goa Court,
the Constitution had already been made applicable to that State also.
Mr. Lokur counsel for the appellant, however, submitted that the
words 'according to law' in Art. 261 (3) would clearly show that the
decree would be executable only in accordance with the law in force,
i.e. the Portuguese Code. It is true that at the time when the executi11g
Court dismissed the suit of the decree-holder/respondent the Code of
Civil Procedure had not been applied and the Portuguese Code co11tinued to apply but after the application of the Code of Civil Proc<:-
dure by virtue of the Goa, Daman and Diti (Extension of the Code
of Civil Procedure and the Arbitration) Act, 1965 (Act 30 of 1965J
the Portuguese Code which was in force in Goa was clearly repealed
and the present case does not fall within any of the clauses mentioned
in the saving provisions of s. 4 of the Act. Thus when the Code of
Civil Procedure wai made applicable to Goa during the pendency of
the appeal, the Appellate Court, namely, the Additional Judicial Commissioner, was bound to decide the matter in accordance with the law
that was in force, namely, the Code of Civil Procedure.
In Jose
Da Costa's case (supra) this Court, while dwelling upon the applicability of the Portuguese Code, observed as follows :
"Thus considered, it is clear that the procedural provisions of the Portuguese Civil Code were no longer applicable
to this case with effect from 15-6-1966.
If that be the
correct position, there is no legal hurdle in the way of the
appellant to the reagitation in this Court of the issue as to
prescription left undecided by the court below.
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To sum up, since on and from 15-6-1966 the Portuguese
Jaw relating to Reclamacao stood repealed and no substantive right or obligation had been acquired or incurred under
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NARHARI v. PANNALAL (Fazal Ali, J.)
that repealed law within the meaning of the first proviso
to S. 4 (I) of Act 30 of 1965, the appellants cannot be debarred from canvassing in this appeal under Article I 36, the
pica of prescription notwithstanding the fact that they did
not file any Reclamacao in the Court of the Judicial Commissioner.
We therefore negative the preliminary
0bjection
.,
raised by the respondents."
159
For these reasons, therefore, we find ourselves in complete agreement with the view taken by the Additional Judicial Commissioner
'and hold that the decree passed by the Bombay High Court was
clearly exeuctablc. The Executing Court will now proceed in accordance with the law as directed by the Additional Judicial Commis-
'Sioner.
The appeal ·fails and is accordingly dismissed but in view of the
·somewhat uncertain legal position we leave the parties to bear th~ir
respective costs in this Court.
Appeal dismissed.
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