Hansraj Nathu Ram v. Lalji Raja & Sons of Bankura

KuputJ. 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 compris-ed 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&- ssarily meant a Court to which Indian Civil Proce· 1962 dure Code applied i. e., a Court in what was British India. The Court at Morena not being such HannGj Nathu Rom v. a Court tho decree could not be transferred to it l11/ji Raja ti: SfltU under tho Indian Code of Civil Procedure and oJ Bankura ss. 38 and 39 were inapplicable to justify such .a Kapur J. transfer.

The decree, it was then argued, was execut-able 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 lgfl Bharat Code of Civil Procedure. The dAcree t.her&-. tml'IOJ fore could not be executed in Morena under s. 43

Nat/tu •• Ram of the Indian Codo of Civil Prooodure .

Lalji lloja ct SonJ

•f Bo,..turo 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 provi-sioW! 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 ,foci-ded 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.

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.

1962. April 30. The Judgment of.the Court IHI was delivered by HinsrfJ; Nothu •• Ram J.-This is an appeal against the !. alji Roja ~ Sons KAPUR, of Bankura judgment and order of the High Court of Madhya Bharat at Gwalior on a certificate of that Court EapurJ. 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 dec-ree 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 appel-lant 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 Decem-ber 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 sec-tions 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

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 Haru'oj NailuJ Rrm when the decree wa.s transferred tho Courts in lAlj i Ra;o ct Sonr Madhya Bh"rat were governed by the Indian Code

of Bankwra of Civil Procedure as adapted by the Madhya