# Sirda-t Gurdgal Singh v. Raja of Faridltol, (1894) L. R

- **Citation:** [1963] 2 S.C.R. 577
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeal No. 24 of 1960
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sirda-t-gurdgal-singh-v-raja-of-faridltol-1894-l-r-2526
- **Pages:** 43

## Headnote

2 s.c.R.
SUPREME COURT REPORTS
577
(J.
RAJ RAJENDRA SARDAR MALOJI
MARSINGH RAO SHITOLE
f).
SRI SHANKAR SARAN AND UH.S.
L. KAPuR, A. K. SARKAR, K. C. D..\s GuPTA,
N. RAJAGOPALA AYYANGAR and J. R •.
MuDHOLKAR, JJ.)
. ~ -';
Foreign Decree-Decree pa&Std in Gwalior in Nooembu
1948-Transfer for execulion to U. P. in September 1951-Exe·
cation application in U. P .-Maintainability of-"Civil Court
in a Part B State," connotation of-Code of Civil Procedure,
1908 (V of 1908), ••· 2 (5), 2 (6), 13, 38, 39, 43 and 44-Code
of Civil Procedure (.Amendment) .Act, 1951 (II of 1951)-Con·
-
'
. stitution of India, Art. 261 ( J).
.
The appellant instituted a suit for the recovery of
money against the re1pondents in a Court in Gwalior State
in May 1947. The respondents who were resident! in U. P.
did not appear before the court and in· November 1948 the
Gwalior Court passed an ex parte decree. On September
14, 1951, the Gwalior Court transferred the decree for execution to Allahabad, and on October 16,, 1951, the appellant
filed an application for execution of the decree before the
Allahabad Court. The· respondents contended that the
decree being a decree of a Foreign Court to whose jurisdiction
they had not submitted was a nullity and the execution
application in respect thereof was not maintainable.
Held, that the decree was not executable at Allahabad.
Per Kapur, Ayyangar and Mudholkar, JJ.-The decree
of the Court in Gwalior State sought to be executed was a
~ foreign decree which not change i.ts nationality in•pite of
subsequent constitutional changes or amendments in the Code
of C.ivil ·Procedure.
On the day on which it passed the
decree the Gwalior Court was a foreign Court . within the
meaning of s. 2 (5) of the Code. None of the conditions
necessary to give its judgment extra-territorial validity
existed (i) the respondents were not the subjects of Gwalior;
(ii) they were not residents in Gwalior at the time the suit
was filed, (iii) they were not temporarily present in Gwalior
when the proc""s was ·served upon them, (iv) they did not
select the forum which passed the decree against theni, (v)
they did not voluntarily appear before the court, and (vi)
they had not contracted to submit to the jurisdiction of the
1162
'''" 31.
IHI
Raj Rofa""" 6G10••
/tf aloji M•rsifeilt.
Ra. ~il10U
••
S.lodorSeron
578
SUPREME OOURT REPOR'.i.'S [1963]
foreign rnurt. The Gwalior court wu therefore not a court
of competent jurisdiction and ita decree was a nullity outtide
the United State ( Madhya Bharat ) of which Gwalior was
a part on the date of the decree. The United State did
not become a part of the "territory ot India" till the Constitution came into force.
The effect of the judgment obtained did not change with the constitutional changes unlthcre was some specific provision to that effect. The decree
was foreign when it was born and It continued to be so as
there was no procas or procedure for its becoming a naturalised Indian decree. Clause 20 of the Adaptation Order,
1950 preserved the rigb.ts and liabilities under the decree
as thcv were before the Corutitution came into force. It
was not correct to say that the decree which was a nullity
before the Constitution ·came into force suffered only from
the defect of un-enforcibility by execution; a. 13 of the Code
created substantive rights and defences which were open to
the respondents under that section were not taken away by
any constitutional changes.
Sirda-t Gurdgal Singh v. Raja of Faridltol, (1894) L. R.
21 I. A. 171, Rao Shio Baha<Jvr
Singh v. TM.
Stal#. of
Vindhya Pracluh, ( 1953) S. C. R. 1188, VirtMra Singh v.
Stak of U. P. ( 1955) 1 S. C. R. 415, Prem Nalh Kaul v.
State of Jammu di K1J1lmir, ( 1959) Supp. 2 S. C. R. 270,
Sauce v. Ameer R..Ur Sadiq Mohamma<J of &Mwanlpur, (1952)
2 Q. B. 390, Ja,,,.r<Jhan 11'4411 v. Suau of Hyd•rabad, (1951)
S. C. R. 344, Laclm&and.,. K<walram Ahuja v. Stal#. of Bom·
bay. (1952) S. C.R. 710, KMha'"'" Madha!IG .Me"°" v. 8141<
of Bomba11, (1951) S. C. R. 28S, Kia

## Text

_Characters 0–39,967 of 82,008. This is a partial read: ask again with offset=39967 for what follows._

2 s.c.R.
SUPREME COURT REPORTS
577
(J.
RAJ RAJENDRA SARDAR MALOJI
MARSINGH RAO SHITOLE
f).
SRI SHANKAR SARAN AND UH.S.
L. KAPuR, A. K. SARKAR, K. C. D..\s GuPTA,
N. RAJAGOPALA AYYANGAR and J. R •.
MuDHOLKAR, JJ.)
. ~ -';
Foreign Decree-Decree pa&Std in Gwalior in Nooembu
1948-Transfer for execulion to U. P. in September 1951-Exe·
cation application in U. P .-Maintainability of-"Civil Court
in a Part B State," connotation of-Code of Civil Procedure,
1908 (V of 1908), ••· 2 (5), 2 (6), 13, 38, 39, 43 and 44-Code
of Civil Procedure (.Amendment) .Act, 1951 (II of 1951)-Con·
-
'
. stitution of India, Art. 261 ( J).
.
The appellant instituted a suit for the recovery of
money against the re1pondents in a Court in Gwalior State
in May 1947. The respondents who were resident! in U. P.
did not appear before the court and in· November 1948 the
Gwalior Court passed an ex parte decree. On September
14, 1951, the Gwalior Court transferred the decree for execution to Allahabad, and on October 16,, 1951, the appellant
filed an application for execution of the decree before the
Allahabad Court. The· respondents contended that the
decree being a decree of a Foreign Court to whose jurisdiction
they had not submitted was a nullity and the execution
application in respect thereof was not maintainable.
Held, that the decree was not executable at Allahabad.
Per Kapur, Ayyangar and Mudholkar, JJ.-The decree
of the Court in Gwalior State sought to be executed was a
~ foreign decree which not change i.ts nationality in•pite of
subsequent constitutional changes or amendments in the Code
of C.ivil ·Procedure.
On the day on which it passed the
decree the Gwalior Court was a foreign Court . within the
meaning of s. 2 (5) of the Code. None of the conditions
necessary to give its judgment extra-territorial validity
existed (i) the respondents were not the subjects of Gwalior;
(ii) they were not residents in Gwalior at the time the suit
was filed, (iii) they were not temporarily present in Gwalior
when the proc""s was ·served upon them, (iv) they did not
select the forum which passed the decree against theni, (v)
they did not voluntarily appear before the court, and (vi)
they had not contracted to submit to the jurisdiction of the
1162
'''" 31.
IHI
Raj Rofa""" 6G10••
/tf aloji M•rsifeilt.
Ra. ~il10U
••
S.lodorSeron
578
SUPREME OOURT REPOR'.i.'S [1963]
foreign rnurt. The Gwalior court wu therefore not a court
of competent jurisdiction and ita decree was a nullity outtide
the United State ( Madhya Bharat ) of which Gwalior was
a part on the date of the decree. The United State did
not become a part of the "territory ot India" till the Constitution came into force.
The effect of the judgment obtained did not change with the constitutional changes unlthcre was some specific provision to that effect. The decree
was foreign when it was born and It continued to be so as
there was no procas or procedure for its becoming a naturalised Indian decree. Clause 20 of the Adaptation Order,
1950 preserved the rigb.ts and liabilities under the decree
as thcv were before the Corutitution came into force. It
was not correct to say that the decree which was a nullity
before the Constitution ·came into force suffered only from
the defect of un-enforcibility by execution; a. 13 of the Code
created substantive rights and defences which were open to
the respondents under that section were not taken away by
any constitutional changes.
Sirda-t Gurdgal Singh v. Raja of Faridltol, (1894) L. R.
21 I. A. 171, Rao Shio Baha<Jvr
Singh v. TM.
Stal#. of
Vindhya Pracluh, ( 1953) S. C. R. 1188, VirtMra Singh v.
Stak of U. P. ( 1955) 1 S. C. R. 415, Prem Nalh Kaul v.
State of Jammu di K1J1lmir, ( 1959) Supp. 2 S. C. R. 270,
Sauce v. Ameer R..Ur Sadiq Mohamma<J of &Mwanlpur, (1952)
2 Q. B. 390, Ja,,,.r<Jhan 11'4411 v. Suau of Hyd•rabad, (1951)
S. C. R. 344, Laclm&and.,. K<walram Ahuja v. Stal#. of Bom·
bay. (1952) S. C.R. 710, KMha'"'" Madha!IG .Me"°" v. 8141<
of Bomba11, (1951) S. C. R. 28S, Kiahori Lal v. Shanti Dev.
A. I. R. (1953) S. C. 441, Lazmi 0Aan4 v . .Mii. Tipvri
I. L. R. 1956 Raj. 236, Shah Kanti Lat v. DOMinion o}
India, A. I. R. 1954 Cal. 67, F. Radhuham Roalran Lal
v. Kundanlal Mohanlal, I. L. R. 1956 Punj. 434 and Ra,,..
kia/l.an Janakilal v. S<lh Harmv/di.ari Lachminarayan, A. I. R.
1955 Nag. 103, referred to.
The Indian Code of Civil Procedure was made app Ji.
cable to Madh}a Bharat by Act II of 1951, which came
Into foice oti April 1, 1951. Under a. 20 of that A~t, which
preserved the rights and liabilities of parties accrued under
the decree paued previously, the decree passed by the
Gwalior Court continued to be enforceable in Madhya Bharat.
But the decree could not be validly transferred for execution
, ..
..
from Gwalior to Allahabad. Section 39 of the Code empo-
~ ..
wcrs the court which pa.:aed the decree to transfer It for
execution to another court. The Gwalior court which transferred die decree lil September 19~1, when it waa governed
•.
'2 S.CJ;:R..
SUPREME OOURT REPORTS
579
by the Indian Code, was a different court from that which
passed the decree under the Local Code, and was not the
court which passed the decree within the meaning of S. 39.
Sections 37 to 42 of the Code deal with execution of decrees
passed by the courts governed by the Indian Code. The
decree could not be executed under the provisions of s. 43
of the Code at any time. After its adaptation in June 1950,
8. 43 applied to "a decree passed . by a C!Vil Cow-t in .a
Part B State". There were no Part B States at the tlaie
when the decree was passed and theee · words <;o!Jld not
.be read as "a decree passed by a dvil court in what became
a Part B State". · Nor could the decree be executed under
s. 44 as that section was also inapplicable to this decree.
Article 261 (3) which provides that the final judgments or
orders of Civil Courts in any part. of the territllry of India
shall be capable of execution anywhere within that territory
is inapplicable to the decree of the Gwalior court as the
provision is prospective and not retrospective.
Per Sarkar and Das Gupta, JJ.-Even in the decree
passed by Gwalior Court was not a foreign decree the Allaba·
bad Court had no. power to execute it either under s. 3_8 or
under ss. 43 or 44 of the Code of Civil Procedure. Section
. 38 provides that a decree.may be executed either by the
court which passed it or by the court to which it is sent· for
execution. The Allahabad Court was not the court ·which.
passed
the decree.
Section 39
empowers · the . court
which passed the decree to transfer it for execution to .anot•
her court; The word ''court" in the phrase "dourt which
passed the .decree" in s. 39 contemplates only c:Ourts gover·
ned by the Indian Code of Civil Piocedure. The Gwalior
Court which was governed by the Owalior Code when It
passed the decree had a ·distinct identity from the. court at
Gwalior after it ,came. to be governed by the Indian Cod_e.
The Court which. transferred the decroe was accordingly
not the court -..hich passed the decree and th~ order of
transfer was not a valid order.
Section 43 of the Code provided f~r the execution of
decrees passed by the Civil _Courts in places where the Indian
Code did not extend., The decree. of the Gwalior Court did n0t
fall within this aection as it stood before the Constitution.
After the adaptation in 1950 the section applied to a decree·
passed "by a Civil Court i_n a Part B Suite". These . words
could. not be read as "by a civil court in an Indian State
which has later been included in a Part B State". -The
Gwalior Court which pa 'sed. the decree wa• not a Civil
Court in a· Part B $fate. Section 44 was equall11 inapplicable to the decree. The section after adaptadon in 1950
1H2 -
Raj Raj.,j,/,a Satla'
Malqj; J11111i.,,.
ltoo 8/Ulol,
.
.;.
s,.,,,,,,., s-
lffl
IWl.f~S..U.
Noi.,; ..,_.,,
It•• S1tl•1l1
v.
Slkllkar • .,.,.
MIO
SUPREME OOURT REPORTS [1963)
applied only to de<nCS of revenue courts.
Before the adaptation it could apply only if there was a notification issued
by the U. P. Government but no such notification wa• issued.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 24 of 1960,
Appeal from the judgment and decree dated
August I, 1957, of the Allahabad High Court in
Special Appeal No. 249 of 1955.
B. Sen, P. W. Sahaarabudhe and J. N. Shroff,
for the appellant.
G. S. Patook and G. C. Mathur, for the
respondenta.
1962. April 30. The Judgment of Kapur,
Ayyangar and Mudholkar, JJ., wae delivered by
Kapur, J.
The .Judgment of Sarkar and De.a
Gupta, JJ., was delivered by Das Gupta, J.
KAPUR, J.-This is an appeal age.inst the
Judgment and order of the High Court of Allahabad
holdin& that the execution of the decree passed by
the Additional District Judge, Gwalior, dated
November 18, 11148, in favour of the appellant
against the respondents wa.a not excouta.ble at
Allahabad.
The appellant in this oourt is the
deoree holder and the respondents are the judgment
debtore.
For the decision of this appeal it is necessary
to deal with the various Statutes, Order!' and
agreements as a result of whioh the eretwhile
Indian State of Gwalior
became a pa.rt of tho
teritories of the Union of India. governed by one
Civil Procedural law. It will also be neceasa.ry to
refer to the various changes in the law of oivil
procedure applicable at the various eta.gee of the
litigation leading to this appeal.
We shall first deal with the integration of the
Indian Stat11 of Gwalior with the Indian Union.
, ..
. .
,,
2 S.C.R.
SUPREME COURT REPORTS
581
Upto August 15, 1947, i.e. before the independence
of India under the Indian Independence Act (10 &
11 Geo, Ch. 30) Gwalior was what was termed
under the Government of India Act of 1935 an
Indian State and its Courts. were •foreign courts'
within s. 2 ( 5) of the Indian Code of Civil Procedure. After independence by s. 7 (i) (b) of that Act
the suzerainty of the Briti~b Crown lapsed and so
also all treaties, agreements and obligation which
had previously .been entered into ·between the
Rulers of Indian States and the British Crown.
The second question can conveniently be dealt with
at a later and appropriate stage.
By the Instrument of Accession which by
August 15, 1947, (p. 36 of White Paper on Indian
States) was entered into between the Ruler of the
State of Gwalior and the Dominion of India certain
subjects mentioned in the schedule to that lnstru·
ment were transferred to the Dominion of India
but Civil Procedure was not one of them. By a
covenant signed in April I 948, the Rulers of
Gwalior, Indore and certain other States in Central
India formed the United State of Gwalior, Indore
and Malwa which was termed United State (Madhya
Bharat)..
By a fresh Instrument of Accession
executed on July 19, 1948, the United State acceded to the Dominion of India and when the Consti·
tution came into force it became Madhya Bharat-
& Part B State-and was governed by the provi·
sions of the Constitution as applicable to such
Statea. This then was the prooeSB of transforma·
tion of the Indian State· of Gwalior inti) a part of
the Republic of India.
On May 15, 1947, the appellant instituted a
snit in the Court of the District Judge, Gwalior, for
recovery of Rs. 6,92,236-15·0 against the respondents, who are the sons and legal representatives of
the late Munshi Ishwar Saran.
The writs of
summons were served on the respondent& on
1962
Raj qajtntlra SardGr
Msl,j& Ma1stnrh
Boa Shteol
'·
SAanlisr Saran
190~
Roj Rojt'lir• Strrtl~
Malo;ii Marsingh
Bao SAJtole
••
SAan.tar Sar•
,..,., J.
582
SUPREME OOURT REPORTS [1963]
September 12, 1947, but they did not appear in the
Court of the Additional District Judge who actually
tried the suit. On November 18, 1947, the trial
Judge ordflr\ld suit to pror.eed ex par/£ and on N ovember 18, 1948, the claim was decreed with costs and
interest.
On August 9,"1949, the appellant made
an application to the Court of the .Additional District Judge praying for transfer of the· decree for
execution to the Court of Civil Judge: Allahabad,
where the properties of the father of the respondents were situate. On April :!5, 1950, the Court
passed the following order:-
"I order transfer of this execution case,
A certificate of transfer relating to non-satisfaction of decree be issued tn the Civil Judge,
Ist Class, Allahabad, for execution proceedings.
This execution cas(I be dismissed".
On September 14, 1951, another order wao
made sending the decree for execution to the Court
of the Civil Judge, 1st Grade, Allahabad.
Along
with it a copy of the order dated April 23, 1950,
was also sent. The order wa~ as follows :-
"Order dated 14th September, 1951 for
transfer of decree to another court for
execution".
Whereas in the above mentioned case the
applicant submitted that tho JudgmentDebtor resided or held property within the
local limits of the jurisdiction of the court of
Civil Judg~. lst Grade, Allahabad and prayed
for the sending of a certificate to that court
for execution of the said decree and it being
consider11d necessary and proper, the said
certificate be sent' to that court under Order
XXI, Rule VI.
A copy of this order along with copies of
decree, certificate of non-payment of decretal
' -
. .
2 s.c.R.
SUPREME COURT REPORTS
583
amount and other orders passed in connection
with
execution
be
forwarded
directly
to the court of the Civil Judge, Ist Grade,
Allahabad.
Dated 14th September· 1951.
Enclosures:-
1.
Certificate.
2. Application of the decree 'holder
3. Copy of decree in the case.
4. Copy of order, dated 25th April, 1950.
Sd. B. K. M:ehra ..
Addi. District & Sessions
Judge, District Gwalior,
Madhya . Bharat". .
The parties were not in accord as· to which of
these orders was the real order for transfer. It is
...
unnecessary to resolve this controversy because we
shall proceed on the assumption that . the. ·order of
transfer was the later OJ:le which the appellant
has relied upon i.e. of Sep~ember 14, 1951.
On October 16, 1951, the appellant filed in the .
Court of Civil Judge, Allahabad, an Application for
execution of the decree for realisation of the amount
due under it which by then had amounted to Rs. 8,98,
_,_i
l!57-7-0. This was registered as.Execution lJaseNo.47
of 1951. The respondents filed their objections tinder
s. 47 of the Code of Civil Procedure on February 8,
1952. They pleaded that the Gwalior Court was a
Foreign Court, to the jurisdiction of which, they had
not submitted and the decrefl was, therefore, an absolute nullity; that the decree was not iu accordance
-• with law and that the application for exec:ution was
not maintainable. By an order of the High Court
under s. 34 of the Civil Procedure Code, the execution case was transferred to the High Court and
'1962
Raj Rajendra Sard111
Maloji Marsingh
Rao Bhitole
..
· $hanka_r ·saran
Kapur J.
I Hr
Raj Rojatha Sla'in
M •I-Ji U .. 1ia1A
Ru Bhfltl•
••
SAlflllorSaraa
5S4
SUPREME COURT REPORTS [1963]
registered ae Extraordinary Miscellaneous Case
, -
No. l of 1!!54. The matter was heard by Brij
:Mohan Lal J., who hold that the decree was paeeed
by a Foreign Court, to the jurisdiction of which,
the respondonds had not subsisted; that the decree
was not binding on the respondents and could not
be executed in the territories ·of Uttar Pradesh.
The execution application was, therefore, dismi88ed.
On appeal a.go.inst that judgment the Appeal Court
upheld the judgment of the learned Single Judge hol-
' ·
ding that the rule in Sirdar Gurdial Singh v. Maharaja of Faridkot (1) was applicable to the case; that
Gwalior was a foreign State on the date of the
decree and its eta.tus as a foreign Mate was not
affected by the lndia.n Independence Act, 194 7, the
Standstill Agret1ment, 1947, the First Instrument of
Acceesion 1947, the 1948 Covenant by which the
United State of Madhya Bharat which included
Gwalior was formed, or the Second Instrument of
Accession, 1948, and that Gwalior State ceased to
be a foreign State only on the coming into force of
the Constitution of India on Ja.nuary 26, 1950. It
also held that the District Judge's court pa.ssing the
decree W88 a foreign Court at the time of the suit.
As the appellant had not submitted to the juriedfo.
tion of the Gwalior District Judges Court the decree
passed by it was an absolute nullity;that even if the
Gwalior law authorised t.he pa.ssing of such a decree,
the decree wa.e a nullity and it wa.e not correct to
eay that a.e a result of the various constitutional
,_
changes, the impediment in the way of its execution
wu removed; that there wa.e no provision of law by
which & decree pa.seed by the Gwalior Court could
be executed in Uttar Pradesh; that Art. 261 (3) of
the Constitution wBB not retroactive and did not
operattl on the decree in queetil'n to ma.ke it executable; that's. 43 of the Indian Civil rrocedure Code .
a.i 'it stood after the Amendment Act II 0£1951 waa
~
inapplicable; that the right 'o resist t.he e:r.eou~
(I) ll•l I..• II I. A,. 171.
2 S.C.R.
SUPREME COURT REPORTS
585
of the decree· on the ground that it was a-nullity
was not taken away by the palitica.I changes and,
therefore, the judgment of the lea.med Single Judge
was upheld. Against this judgment and Order the
appellant has come in appeal · to this Court on
a certificate under Art. 133(i)(a) and (o) of the
Constitution.
The vital question for decision is whether the
decree passed by the Gwiillor Court .on November
f ,..
18, 1948, was executable in the State of Uttar
Pradesh which, was at one time,- a pa.rt of what was
British India, Gwalior at the relevant time being a
pa.rt ·of the United State aforesaid.
For this
purpose, the questions that arise a.re:-
)
1. Was the decree a decree of a foreign
court?
2. Could the Court at Gwalior order the
transfer of the decree for execution in the
Allahabad Civil Court?
3. If it could not, then was the decree executable at Allahabad under ss. 43 & 44 of
the Code of Civil Procedure? and
4. Could the respondents-judgment debtors
take an objection to the execution of the
decree ori the ground that it was an
absolute nullity, being the decree of a
foreign Court?
.
We shall first . enquire into the nationality of the
depree passed m favour of the appellant which
necessitates a determination of the Court passing
the decree i.e, whether it. was or was not a Court
falling within s. 2 ( 5) of the Indian Code of Civil
Procedure (Act V of 1908) which shall hereinafter
be termed the •Indian Code'.
At the t~e when the suit was broupt i. e,
-
llaJ llOjalirtl S•rU..
111.i.}>.Jlanq1'
R .. 8/liltl~
v •.
II"""'"" 8ar111
-
IHI
110; llojuut.a s_,
Jfolo;i Mar1fft1h
Rao Sllilole
"·
8Mu .... su·in
586
SUPitlt;ME OOURT REPORTS (1963)
May 15, 1947, the definition of "Foreign Court" in
s. 2(5) of the Indian Code was:-
" •.<Foreign Court" means a court situate
beyond the limits of British India which has no
authority in British India and is not established or continued by the Central Government
or the Crown representative."
As a result of the Adaptation Order of March 23,
1948, the definition was:-
" "Foreign Court" means a court situate
beyond the limitll of provinces which has no
authority in the provinces and is not established or continued by the Central Government."
By the Adaptation Order of January 26, 1950,
there was a further change in the
def:~ ition of
"Foreign Court" and it then stood as follows:-
" "Foreign Court" means a court situate
beyond the limits of the States which has no
authority in States and is not establi@hed or
continued by the Central Gov~mment."
After Aot II ofl95l came into force on April 1,
1951 the section read as follows:-
" "Foreign Court" means a ·court. ~1tuate
outside India and not established or continued b) the authority of the Central Government."
At the time of the pa88iog of the decree on Novemder 18, 1948 the definition of the Foreign Court
was as amended by the Adaptation Urder of
March 23, 1948 i. e. a court situate beyond
the limits of the provinces which means the
provinces of what was British India and which
had no authority in the provinces (of British IndiB)
and was not established or continued by the
Central Government. The court at Gwalior fell
' -
. .
'
..
2 .S.C.R. ·
SUPREME COURT REPORTS
587
within this definition· and . therofore on a plain
reading of the definition it was a foreign court .and
a judgment passed by it wuuld be a foreign judgment
as detined in s. 2(6) where the expression "foreign
judgment'' iS defined as the judgment of a foreign
·court.'"
· Under the India~Code the judgment obtained .
by the appellant in Gwalior court would be governed by s. 13 of that Code ~nd its conclusiveness is
governed by cl. (a) to cl. (f) of that section. The
rules laid down in that section are rules of substantive Jaw and not inerely of procedure. It is to be
noted that in the present case the respondents did
not submit to the jurisdiction ofthe Gwalior Court.
In Halsbury'il Laws of England Vol. VIII, p.144,
paragraph 257 (3rd Ed.) conditions necessary for
giving jurisdiction to a foreign court are set out and·
at ·1east one of them is required to be satisfied
before a foreign judgment is regarded as having
extra· territorial validity. Nooe of them was satisfied in the present case .. Firstly the respondents
were not the subjects of Gwalior; .they did, not owe
any allegiance to the Ruler of Gwalior and therefore
they were under nO' obligation to accept ·the judg· ·
ments of the courts of that Mate. Secondly they
were not residents in that State when the suit was
instituted. Thirdly . they were not temporarily
present in that State when the process was served .
on them. Fourthly they did not in their character
as plaintiffs in the foreign action themselves selected
the forum where the judgment was given against
them. Fifthly they did not voluntarily appear in
that court. Sixthly they had. not contracted to
submit to the jurisdiction of the foreign court. 1:he
Gwalior Court therefore was not a.court of competent jurisdiction. .The judgment of Gwalior Court
was therefore a nullity . outside t4e United State .·
(Madhya Bharat). See Gurdyal Singh· v. Raja
.
.
1961
Raj Rojendra S1rtI.1
Maloji Marsinih ·
Rao Shitole
"·
. Shlnhar s.,an
KapurJ.
688
SUPREME COURT REPORTS fl963J
JHI
of Faridkot (1 ).
Lord Selborne there observed aa
Bod BajeN/to '"""' follows:-
Malo;i II· rsiflih
11ao s""°"
••
SAIJll/rcu s • ...,,.
KapurJ,
"Under these circumstances there was,
in their Lordships' opinion, nothing to take
this e&11e out of the general rule, that the
plaintiff most one in the court to which the
Defendant is Aubject at the f:ime of suit
(" Actm sequitor farum rai"); which is rightly
stated by Sir Robert Phillimore (International
Law, Vol. 4, s. 891 to "lie at the root of all
international, and of most domestic, jurisprudence on this matter". All jurisdiction is
properly territorial and "extra territorium jus
dicenti, imprime non paretur".
Territorial
jurisdiction attaches (with special exceptions)
upon all persons either permanently or temporarily resident within thEl territory while
they are within it; but it does not follow them
after they a.re living in another independent
country. It exists always as to land within
the territory and it may be exercised over
moveables within the territ_ory;
and, in
questions of status or suoceBBion governed by
domioil, it may exist as to persons domiciled,
or who when living were domiciled, within the
territory. As between different provinces
under one severeignty (e.g., under the Roman
Empire) the legislation of the sovereign may
distribute and regulate jurisdiction; but no
territorial legislation can give jurisdiction
which any foreign Court ought to recognise
against foreigners, who owe allegiance or
obedience to, the power which so legislates".
But it was submitted by the appellant that the
Court at Gwalior .ceased to be a foreign court
because firstly aa a consequence of the constitutional documents executed by the Rulers of Indian
States the UniWl St.ate (Madhp. :BlulrM) had
(I) (I .. )"'&. 211.A.111.
' -
• •
..
,..
'
I
'
,,
2 S.C.R.
SUPREME COURT REPORTS
589
become .a. pa.rt of the Dominion of India. and, therefore a decree passed by a court of the State could
not be the decree of a foreign court; secondly as a
result of the coming into force of the ·Constitution
of India what was United State (of Manhya Bharat)
became a Part B State, of the Union of India and
therefore a decree passed by the Gwalior ·Court
even though a nullity in the erstwhile province
. of U. P. ceased to be so and took Indian nationality
and thus bees.me executable in the State of U. P.
Thirdly it was submitted that the deoree passed
by the Gwalior Court was a valid decree in the
United State (Madhya Bharat) and therefore was .
not an absolute nullity but there was in impediment
to its executability.which was removed as soonas
the United State (Madhya Bharat) became a part
of the Union of India and fourthly it was submitted
that subsequent changes in
the
Indian Code
consequent upan the promulgation of the Adaptation
Order of January 26, 1950 under Art. 372 of that
Constitution and subsequent amendment of the
Order of June 5, 1950, whioh became retrospectively
c:iperative from ·January 26, 1950 and
by a
subsequent Act (G'ivil Procedure Amendment Act
(Act II of 1951 ))
ihe _Gwalior Court became
competent to transfer its decrees for execution
to the Court at Allahabad; and under the provisions
· of the Indian · Code relating to execution amended
from time to time the decree sought to . be
executed became executable by the Court at
Allahabad.
The first contention is unsustainable because
the constitution.al changes did not effect any ohange
in the status or nat~onality · of the Gwalior Court
till after the passing of the decree of November 18,
1948 and there being no specific provision to the
contrary those changes left the decree unaffected.
The United State (Madhya Bharat) had not become
" pan of tbe Dom~on of lndia deapit.e ~
variOlla
1961
&; Rajltldra SoldM
Maloji Jlarsingh
Rao.Blritoh
v.
BhaMarB<f'on
KopvrJ.
Raj Bo.fmt/N S•dm
M•loji MotJi.ngll
Ru S/,iloll
••
Shan'ar Sor n
690
SUPREME COURT REPORTS [1963)
constitutional documi·nts executed by the Rulers of
the Indian StateR. The flffrot of these constitu·
tional
documents was examined
and decided
in
Rao
Shiv
Baliadur
Singh
v.
The
Stare
of Vindhya Pradesh(l); Virendra Singh v. The State of
Uttar Pradesh('} and Prem Nath Kaul v. The Stare of
Jammu & Kasltmfr(').
In Rao Shiv Bahadur Singh's case it was held
that in spite of'the Instrument of Accession by which
all subjects enumerated in Lists I and III rf Sche·
dule VII of the Government of India Act 1935 were
handed over to the Dominion Government and in
spite of the Covenant by which the Rajpramukh
had declared that the Constitution of India which
was to be adopted by the Constituent Assembly of
India shall be tho Constitution for Vindhya Pradesh
and specifically superseded and abrogated other con·
stitutional provisions inconsistent therewith which
were then in force in tho Statf', those arrangements
brought about an integrated United State of Vindhya Pradesh within the framework of the Dominion
of India "but only by way of accession".
In Virendra Singh's case Bose J., observed as
follows:-
"Despite the readjustment, the sum total
of the sovereignties which had resided in
each (ruler) before the covenant now resided
in the whole and its component parts; none of
it was lost to the Domiaion of India". Ip. 4 l!J)
A somewhat similar view was taken by the
Court of Appeal in Sayco v. Ameer Ruler Sadiq
Mohamrrw.d of Bahawalpur where an objection was
~ken by the Ruler of Bahawalpur State that he still
retained his independent status and the State of
Bahawalpur was not within His Majesty's Dominion
<1) (1953] l s.c.R. 415, 418, 419.
(2) [19<9] Supp. 2 S.C.R. 275.
(S)
[l952J 2 Q. B. s~o. 394.
..
(
1 S.C.R. . SUPREME COURT REPORTS
591
in spite of the Ruler of Bahawalpur having acceded
to the Dominion of Pakistan.
At the relevant date i.e. on November 18,
1948, the various constitutional' changes did not
affect the position and status of thE' United States
(Madhya. Bharat)1 which comprised Gwalior also; it
did not become a part of the Dominion of India but
continued to retain its status. The United State
(Madhya Bharat) was not cqmprised in the "Territory of India" till after tht'i Constitution came into
force on January 26, 1950. This Court has held
that the Constitution is prospective and not retros'.
pective: Janardhan Reddy v. The State of Hyder<;1· ·
bad('); Lachamanilas Kewal Ram Ahujav; The.State of
Bombay (2 );
Keshavan Madhva Mel'I01i v. State of
Bombay(•). Before the Constitution, Madhya Bharat
was not a Part.B St~te but becam~ one ail a consequence of the Constitution. Therefore the decree
which was sought to be .executed remained a decree
of a foreign court as dt>fined i.li i!, .2(5) of the India.Ii
Code then applicable a.n.d its judgment h~d to be
enforced in the manner that foreign judgments were
.enforceable·i. .e. either· as tit had to be brought on
the l;asis of that judgment or ifthere was a provision in the fo.dian Code it had to· be . executed in
accordance with tliat provision; Mull's C. P. C. p.96;
Dicey, Conflict of Laws, Rule 162(7th Ed.). A
Judgement which is governed by the rule in Sirdar
Gurdyal Singh' s(') case not being' by a court of· .com-
.. petent · ju.risdiction in the inter11·ational sense i. e ..
· according to the principles of International Law
(Cl?-eshire, . Private International Law; pc 641, 6th
Ed.) and the respoμdent not having submitted to
its jurisdiction is a nullity outside, the te1,ritory of
th!I. ctate in which the court passing the decree is
situate. In that case it was sa.id:
(!) (19<1) S c, R. 344. 368,
(3) (1951 I S.·C.'R. 288 •.
(2) (1952) S. c. R. 710. 730.
\4) (1894) L.R. 21 I.A. 171. .
1962
~-
Raj Rnjirnlra s,,,,,
Jlaloji Marsinth
Bao s1.itole
••
Sll<m.l"" StmJn
IrlfJIUrJ.
1HI
Raj ilolMdt• S...W
M 11,jt' M•rli1111t
II. Slliul•
••
Slt.aJi.,StmJtt
1192
SUPDEME OOURT REPORTs [1963]
"Jn a pel'80nal action to which none of
these causes of jurisdiction apply, a decree
• ·
pronounced in ah.!entem by a foreign Court, to
the juriadfction of which the Defendant baa
not in any way submitted himself, is by international law an absolute nullity. He Is under
no obligation of any kind to o'.>ey it; and it
must be regarded as a. mere nullity by the
Courts of every nation except (when author.
ised by special local legislation) in the country
of the forum by which it wBB pronounood".
"
On the bBBis of auoh a decree therefore no action
could be brought in what was British India. the
decree being of a. Court in a.n Indian State.
By ol. 27 of the Adaptation of Laws Orrler .
ma.de on January 26, 1950, the previous operation
of or anything done or suffered under any existing
law or any ri~ht, privilege, obligation or liability
already acquired, acorued or incurred remains un
a.1focted.
Thia Order was subsequently amended on
June 5, 1950 and ol. 27 WBB numbered a.s 20 but
there was no change in its language. Therefore by
a change ma.de in the definition of 'foreign court' or
other cha.nJleB introduced in the Indian Code the
effect of and righte and liabilities under the decree
sought to be executed, no fresh rights accrued to
the appellant nor were any fresh liabilities incurred
by the Respondents and if the decree waa a nullity
outside the United State
(Madhya Bharat) it
remained a. nullity and Adaptation Order did not
•.
change its efficacy. The eft'eot of Act II of 1951 by
whioh the Indian Code was applied to Madhya
Bharat WIMI no different qua. the rights and lia.bili·
1ies under previous Orders and decrees; see s. 20 of
that Aot which will be more fully discueaed later in
this judgment.
In this connection we may refer to the judge·
,...
ment of this Court in KW&ori Lal v. Shanti
)
/
S.O.R.
SUPREME COURT REPORTS
593
Devi('). There, an order under s. 488, Criminal Procedure Code, had been passed by a Magistrate at
Lahore before the Partition of India and th't.t was
sought to be enforced under s. 490 of the Criminal
Procedure Code in a Magistrate's Court at Delhi.
An objection was raised that the order was unforceable as it was the order of a •foreign court' i. e. of
a court which had subsequently become a Pakistan
Court. This Court held that the order was of an
Indian Court when made and was at the time of its
enforcement in the Delhi Court stm an order of a
domestic tribunal. In the absence of any specific
bar there was no reason why it should lose its
Indian nationality simply because Lahore was no
longer a part of India. Bose J., at p. 442
observed:-
" A number of enabling prov1s1ons were
passed after the partition to meet certain
special cases of this kind and of course, where
there is specific legislation, effect must be
given to it. But where, as here, there is nothing then in the absence of a specific bar we
hold that an order which was good and com·
petent when it was made and which was
passed by a tribunal which was domestic at
the date of its making and ,which could at
that date, have been enforced in an Indian
Court, does not lose its· efficacy by reason of ·
the partition".
This no doubt is the reverse case of the present one
but. the principle laid down there that the effect of
tho judgment obtained before the constitutional
changes does not change unless there is a specific
provision to that effect is applicable to this case
also. Following the decision in Kishori lal'a(1) case
Wanchoo J., (as he then was in Laxmi OMnd v.
MBt. Tipuri( 1) held that the crucial date for determin·
ing the validity or enforcibility of an order or a
(1) A.l.R; 1953 S. C. 441.
(2)1. L. &.1136 Raj. i36.
IHI
Raj Rajmt!ra Sariar
.Jlaloji .U llfain1h
Bao Shi'ole
'·
Shan/car Saran
Kaflur J.
594
SUPREME COURT REPORTS (1963)
&J Ba..,,.. """"
Mal•il Mor1U.,•
Rao Sllil>I•
decree is the date when it waa made. Therefore if
a decree was unenforceable in a particular court at
thP time it waa passed, it would not l,iecome enforceable and valid simply because of the political
changes that took place unless there is a specific
provision to the contrary. The Calcutta High Court
in Shah Kanti Lal v. Dominion of India (1) hdcl that
t)lere is no retrospective effect of the Constitution
including its definition of the words "Territory ,,f
India" which hae the effect of converting what was
a foreign judgment before the Constitution of India
to a dnmestio judgment after the Constitution. The
argument raised against the decree of the Gwalior
Court being a nullity and not remaining so after
the Constitution must therefore fail. ·
••
Sn,dar Saran
, .. pv.J.
The next argument raised was that the decree
pa&1ed by the Vourt at Gwalior on November 18,
1948, was not a nullity as under the Madhya
Bharat Code of Civil Procedure it was a valid decree
and there was only an impediment to its execut·
ability which was removed as a consequence of the
constitutional changes and the subsequent amendments of the Indian Code. Thie ~rgument is also
not well founded.
The decree was, in the international sense a nullity outside Madhya Bharat
even though aooording to the law in that State it
was not so. We have already held that the decree
was foreign when it wM born in Gwalior and it
oontinued to be so as there was no process or procedure for its becoming a naturalised Indian decree.
The decree being a nullity outside the c.iurtll of the
United State (Madhya Bharat), in the abeenoe of
any specific provision, it could not be enforced in
the United State (Madhya Bharat). It will not be
correot to say that the decree which was a nullity
before the Constitution came into force suffered only
from the defeat of enforcibility by execution
Section 13 creates substantive rights and is not merely
(I) A.J.R. 19'4 Cal. 67.
..
. .
r
2 S.C.R.
SUPREME OOUR.T REPORTS
595
procedural and therefore defen<'es which were open
to the Respondents wero not taken a.way by any
constitutional changes in the absence of a specific
provision to the contrary. It is erroneous to say
t.herefore t'hat the decree of the Gwalior Court was
unenforceable when passed because of some impediment which the suhequent constitutional changes
bad removed; but that decree suffered from a more
fundamental defect of being a nullity and the riglits
a.nd liabilities created under it remained unaffocted
by subsequent. changes. That, in our opinion, is the
d'ect of the judgment of this Court in Kishori
Lat's case(1). See also E. Radhesham Rosh.an Lal
v. Kundanlal Mohanlal(') where it wee held that the
right of the judgment-debtor to plead that the
decree is a.. nullity, is not a procedural matter but is
a vested right in the judgment debtor and it ca.nnot
be taken away by the provision of law which is not
retrospective. The Nagpur High Court in Ram
Ki.shan Jankilal v.
Beth •Harmukharai Laihmi
N arayan(o) also held that a decree by the Indore High
Court prior to the constitution was of a. court without
jurisdiction a.nd merely beeause Indore became a
pa.rt of the "Territory of India" after the Consti·
tution did not retrospectively clothe the oourt at
Indore with jμrisdiotion in order to make the decree
which was a nullity,. into a vii.lid decree;
It was next argued that as a result of au bee·
quent changes in the provisions of the Indian Code
·resulting from constitutional changes in the country,
and amendments in the Indian Code the decrees of
the Courts in Madhya Bharat became executable
under the provisions of the Indian Code and the
Gwalior Coul't could therefore transfer the decree
for execution to the Court at Alla.ha.bad.
We shall t.herefore discuss the power of the
Court at Gwalior to make the order of transfer
dated September 14, 1951, assuming without decid11) A.LR. (1953) S.C.441.
(2) l.L.R.1950Punj.434.
.
(3) A.l.R. 1955 Naa. 103.
1962
Raj B11j1nba.Siif'dat
Maloj1: N0,;ngh
R_ao Sh(tole
..
Sbanlcar Soran
Kapur J.
-
-
JHt
bj RejtMI• Sarthr
11.i.ji Mar.1~•·
Bat ShiJot.
••
IJlan,tur SotiM
596
SUPREME COURT REPORTS [1963]
ing that that order whfoh the appellant relies upon
was a judicial orders of transfer. At the time when
the suit was filed i.e. May 15, 1947, the law relating
to oivil procedure applicable to Gwalior IState was
the Gwalior Civil Procedure l'ode (Gwalior Act I of
Samvat 1966 i. e. 1909). The relevant provisions
of that Code dealing with transfer of decrees were
1!8. 227 a.nd 229 the former oorresponding to s. 38 of
the Indian Code of Civil Prooedure and the latter
to s. 39 of that Code.
Sub-section (') of s. 229
correeponds to s. 41 of the Indian Code of Civil
Procedure. By the (Madhya Bbarnt) Indian Civil
Procedure Adaptation Aot (Madhya Bharat) Aot 70
of Sam vat 2006 or 1949 the Indian Code was adapted
in Madhya Bharat (and thia !'odapted Code will here·
inafter be referred to aa the Madhva Bharat Code).
It was to come into force on Janu~ry 23, 1950, i. e.
15 days after its publication in the Gazette. By
s. 3 the Indian Code was adapted, and it mutatis
mutandis came into foroe in Madhya Bharat. It
was also provided therein that whatever and whenever amendments would be made in the said Indian
Code they would be applioable to Madhya Bharat
with neceSBary alterations. By s. 4 of Madhya
Bharat Code above mentioned the previous Codea
in foroe in the various States comprising Madhya
Bharat were repealed and it was provided inter alia
that all (lecrees pa.seed and judgments given in
aooordance with the repealed Code as well as other
aots done thereunder would have tl:e ea.me foroe a11
if they were iSBued- or made by a competent
authority under the Madhya Bharat Code. Thus
on January 23, 1950, the Indian Code with necessary amendments and adaptations was made appli·
oalile to the State of Madhya Bharat but this was
under the orders of the legislative authority of
Madhya Bharat, which could only legislate for and
in the territories of that State. As we have already
said on January 26, 1950, the adaptation of Laws
. -
;
'
1
\
_)
2 S.C.R.
591
Order was promulgated under Art.