Appeal No 173 of 1956
Appeal from the judgment and order dated November 15 1954 of the former Madhya Pradesh High Court at Gwalior in C F A No 9 of 1951
Ganpat Rai for the appellant
N section Bindra and D D Sharma for the respondent
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 article 133 1 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 sense that the decree sought to be executed was passed by a Court in West Bedford province of what was British India
In the appeal the appellant is the judgment debtor and the decree holder is the respondent
On December 3 1949 a decree was passed in favour of the respondent by the Subordinate Judge Bankura in the West Bengal and a certificate of transfer was applied for on July 27 1950 granted on August 8 1950 and was transferred for execution 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 United 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 various sections of the Indian Code of Civil Procedure or to trace the various steps by which as
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 the Court had no power to transfer the decree under section 38 to the Court in Morena
On the date when the decree was transferred the Courts in Madhya Bharat were governed by the Indian Code of Civil Procedure as adapted by the Madhya Bharat Adaptation Order of 1948 but the power of transfer by the Court at Bankura was governed by sections 38 and 39 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 the Code extended to the territories of what was British India and it was not till the coming into force of Act 11 of 1951 on April 1 1951 that the Indian Code was applied to the Territories of India which comprised Parts A B and C State
It was contended by Mr N section Bindra counsel for the respondent that under sections 38 and 39 of the Indian Code of Civil Procedure a decree could be 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 Manawala Goundan vs Kumarappa Reddy 1 where the word Court in section 622 of the old Civil Procedure was defined as a place where justice is judicially administered  but that was in a case where it had to be determined whether a District Registrar was Court for the purpose of Civil Procedure Code
The definition as given in that case is not of any help in determining the question now 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 section 38 or not
As we have said above Court in the section means a court to which the Indian Code of Civil Procedure applies and not any Court
Similarly at the relevant time in es 40 and 42 of the Indian Code of Civil Procedure Court nece I L R 30 mad
623 ssarily meant a Court to which Indian Civil Procedure Code applied i e a Court in what was British India
The Court at Morena not being such a Court the decree could not be transferred to it under the Indian Code of Civil Procedure and sections 38 and 39 were inapplicable to justify such a transfer
The decree it was then argued was executable under section 43 of the Indian Civil Procedure Code as 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 jurisdiction of the Court by which it was passed be executed in manner herein provided within the jurisdiction of any Court in the States
The argument 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 1 1951 by Act 11 of 1951
The decrees of foreign courts were under the Gwalior Code of which Morena was a part executable neither under section 233 which required a suit to be brought on the basis of foreign decrees nor under the Madhya 624 Bharat Code of Civil Procedure
The decree therefore could not be executed in Morena under s43 of the Indian Code of Civil Procedure
It was next argued that the appellant firm was not a foreigner because it did not fall under the foreigners Act Act 31 of 1946 and reference was made to section 2 a iii which was amended by Act 38 of 1947 on December 15 1947  but this Act is not relevant for the purpose of finding out whether the decree was a foreign decree or not because the execution of decrees is governed by the provisions of the Code of Civil Procedure and not by the Foreigners Act
Under the former a decree can be executed by a Court which passed the decree or to which it was transferred for execution and the decree 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 Procedure
But in the present case it was not transferred to a Court which at the time of the transfer was governed by the Indian Code of Civil Procedure and therefore the transfer was ineffective for the purpose of execution and as we have said above section 43 of the Indian Code was inapplicable before Act 11 of 1951 to the State of Madhya Bharat
It is not necessary to go into the other questions raised if the above two questions are decided against the respondent
We therefore allow this appeal set aside the judgment and order of the High Court and restore that of the executing court
The appellant will have its costs in the court
Appeal allowed


Summary:
A decree passed in favour of the respondent by a Subordinate judge of West Bengal was transferred for execution 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 Madhya Bharat and after the Constitution State of Madhya Bharat
On the date when the decree was transferred the 620 Courts in Madhya Bharat were governed by the Indian Code of Civil Procedure as adapted by the Madhya Bharat Adapt action Order of 1948 but the power of transfer by the Court of Bankura was governed by sections 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 section 38 to the Court in Morena
The question was 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
Held 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 sections 38 and 39 were inapplicable to justify such a transfer
The Indian Civil Procedure Code was not extended to Madhya Bharat till April 1 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 section 233 which required a suit to be brought on the basis of foreign decree under not the Madhya Bharat Court of Civil Procedure
Held 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 governed by the provisions of the Code of Civil Procedure and not by Foreigners Act
A section of an enactment has to be interpreted as it is and a Court cannot read it as if its language was different from what it actually is