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
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 by FAZAL ALI 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 holderrespondent had brought a suit on the original side of the Bombay High Court being Suit No 203 of 1956 against the appellantjudgment debtor for recovery of certain amount of money
The Bombay High Court passed a decree for Rs 6595379 on June 29 1960
In the suit brought by the decree holderrespondent summons were served on the defendantjudgment 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 SCI76 152 to the Goa Court for execution In pursuance of the order of the Bombay High Court the decree holder filed an execution suit before the Executing Court at Panjim on January 21 1964
The Executing Court however by its order dated April 26 1965 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 1 1965 and the appeal was admitted on June 5 1965
On February 24 1967 the judgment debtorappellant 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 the 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 article 2613 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 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 approved by the Goa Court under section 50 of the Portuguese Code 2 that the order of the Bombay High Court transferring the decree for execution to the Goa Court under sections 38  39 of the Code of Civil Procedure was without jurisdictions in as much 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 appellantjudgment debtor the decree continued to be inexecutable and could not be validated by article 2613 of the Constitution of India
Mr D V Patel appearing for the respondentdecree 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 article 2613 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 appellantjudgment debtor that the decree passed by the Bombay 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 section 38 of the Code of Civil Procedure was the decision of this Court in Raj Rajendra Sardar Maloji Marsingh Rao Shitole vs Sri Shankar Saran and Ors1
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 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 Court
It was mainly contended before this Court that the decree being that of a foreign Court was a nullity and the execution application was not maintainable
In these peculiar circumstances this Court after considering the entire law on the subject concluded as follows Our conclusion therefore is that the Allahabad Court had no power to execute the decree either under section 3 or under sections 43 or 44 of the Code of Civil Procedure
Therefore even if the decree was not a foreign decree the decree holder s application for execution was rightly dismissed
An analysis of Shitole s case supra would clearly show that the facts in that case are 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 are not at all applicable to the present case
In the first place the decree in Shitole s case1 was admittedly passed by the Gwalior Court in 1947 when Gwalior being a princely State the Court which passed the decree was undoubtedly a foreign Court
Secondly the judgment debtorsdefendants 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 does not appear at all and does not take part in the proceedings of the Court
Thirdly it would appear that the provisions of article 2613 of the Constitution would not apply to the facts of Shitole s case1 because the constitutional provisions not being retrospective they could not apply to decrees passed before the coming into force of the  Constitution
In view of these circumstances therefore it cannot be said that Shitole s case1 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 Shaligram vs Daulat Rant2 appears to be directly in point so far as the facts in the present case are 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 pro visions of the Code of Civil Procedure applied
The appellant appear ed before the Court and applied for leave to defend and thereafter absented himself
The decree was thereafter transferred to the Court 1  2  154 of District Judge Bhir in Hyderabad State
This Court held that the decree was executable and observed as follows A person who appears in obedience to the process of a foreign Court and applies for leave to defend the suit with out 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 Atham Sahib vs David Sahib Mad
Therefore 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 vs Firm Hansraj Nathuram1 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 P a nullity
Learned counsel appearing for the appellant however submitted that since the Code of Civil Procedure 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 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 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
In Moharllal Chunilal Kothari vs Tribhowan Haribhai Tamboli2 it was clearly ruled by this Court that the Appellate Court was bound to apply the law as it was found on the date of the judgment
In this connection this Court observed as follows 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 onthe date of the judgment
Hence there is no question of taking away any vested rights in the land lords 1  2   715 716
155 To the same effect is the decision of this Court in Gummalapura Taggina Matada Kotturuswami vs Setra Veeravva and others1 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 vs 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 vs Bascora Sadashiva Sinai Narcornin and others2 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 well established 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 at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment see Delhi Cloth and General Mills Co Ltd vs Income tax Commr 54 Ind App
421 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 are 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 that the executability of the decree was a vested right which could not be taken away by the applicability of the Code of Civil Procedure to Goa during the pendency of the appeal the decision of this Court in Lalji Raja  Sons  case supra is a clear authority against the pro position 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 executability of the decree could not be considered to be a vested right
In this connection this Court made the following observations Therefore the question for decision is whether the non executability of the decree in the Morena court under the law in force in Madhya 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 of the provision it can be said that the non executability of 1   579 2 AIR 1975 SC 18431849
156 a decree within a particular territory can be considered 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 are now made executable in the whole of India
The change made is one relating to procedure and jurisdiction   lt was the 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 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 section 38 of 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 had not been applied to Goa
But that does not put the respondentdecree 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 any impediment in the execution of the decree
The decree lay dormant 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 vs Rajaram Bapu Vithal1 Chagla
CJ as he then was while delivering the opinion of the Full Bench of the Bombay High Court observed as follows Therefore as far as this particular decree was concerned as the defendant we are assuming did not submit to the 1 AIR 1951 Bom
157 jurisdiction of the Sholapur Court quae the Akalkot Court A 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
But 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 no difficulty
with respect in understanding  appreciating the judgment which we have to consider in this Full Bench because if the character of the Akalkot Court changes  if the status of the defendant alters because of that fact then the impediment which was initially there in the decree being enforced in the Akalkot Court disappears  the decree which was unenforceable till that change came about becomes enforceable  executable in the Akalkot Court
This is nat in any way violating private international law
Private international law remains the same
But under the circumstances of the case the Sholapur 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 D is executable as it has been passed by a Court of competent jurisdiction
 It would appear therefore that an identical 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 defendantjudgment 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 in the proceedings of the Court to some extent and the order of transfer under section 38 of the Code of Civil Procedure also not having suffered from any inherent lack 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 Comm sioner 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 section 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 158 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 necessary 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 principles contained in article 261 3 of the Constitution of India which runs thus Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution 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 article 2613 would clearly show that the decree would be executable only in accordance with the law in force ie the Portuguese Code
It is true that at the time when the executing Court dismissed the suit of the decree holderrespondent the Code of Civil Procedure had not been applied 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 Act 30 of 1965 the Portuguese Code which was in force in Goa was clearly replaced and the present case does not fall within any of the clauses mentioned in the saving provisions of section 4 of the Act
Thus when the Code of Civil Procedure was 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
      To sum up since on and from 15 6 1966 the Portuguese law relating to Reclamacao stood repealed and no substantive right or obligation had been acquired or incurred under 159 that repealed law within the meaning of the first proviso to section 41 of Act 30 of 1965 the appellants cannot be debarred from canvassing in this appeal under Article 136 the plea of prescription notwithstanding the fact that they did not file any Reclamacao in the Court of the Judicial Commissioner
We therefore negative the preliminary objection raised by the respondents
 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 executable
The Executing Court will now proceed in accordance with the law as directed by the Additional Judicial Commissioner
The appeal fails and is accordingly dismissed but in view of the somewhat uncertain legal position we leave the parties to bear their respective costs in this Court
SR Appeal dismissed


Summary:
In the Civil Suit No 203 of 1955 on the original side of the Bombay High 
Court filed by the decree holderrespondent against the appellantjudgment debtor for recovery of certain amount of money summons were served on the judgment debtor who after filing his written statement absented himself and did not take any further part in the proceedings of the Court resulting in a decree dated 29 6 1960 for Rs 6595379
On 20 12 1961 Goa became a part of India and was made a Union Territory of India by the Constitution Twelth Amendment Act 1962 passed on 27 3 1962
The decree holder applied to the Bombay High Court for transferring the decree to Goa Court for execution and by an order dated 28 8 1963 the decree was transferred to the Goa Court for execution
The execution application before the Executing Court 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 preferred to the Additional Judicial Commissioner on 1 6 1965 and the appellant Judgment 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 Portuguese Code
The Additional Judicial Commissioner by its order dated 28 6 1967 held that in view of article 2613 of the Constitution the decree passed by the Bombay High Court could not be treated as nullity and was therefore executable
On appeal by certificate the appellantjudgment debtor contended 1 that the decree passed by me 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 approved by the Goa Court under section 50 of the Portuguese Code 2 thatthe Bombay High Court transferring the decree for execution to the Goa Court under sections 38 and 39 of the CPC was without jurisdiction inasmuch as the CPC had not been applied to Goa when the order of transfer was passed
3 that as the provisions of the CPC were applied to Goa after the order of the Execution Court was passed and a vested right had accrued to the appellantjudgment debtor the J decree continued to be inexecutable and could not be validated by article 2613 of the Constitution
The respondentdecree holder contended 1 that inasmuch as the judgment debtor had appeared 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 CPC 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
and iii that in view of the provisions of article 2613 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
150 Dismissing the appeal the Court  HELD 1 Where a party appears before the court the decree of the court even mf it is a foreign court is not a nullity
154 D Raj Rajendra Sardar Maloji Marsingh Rao Shitole vs Sri Shankar Saran and others   distinguished and held not applicable
Shaligram vs Daulat Ram  and Lalji Raja  Sons vs Firm Hansraj Nathuram   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 debtor
A fortiorary the execution proceedings being purely a matter of procedure it is well settled that any change in law which is made during the pendency of the cause would be deemed to be retrospective in operation and the Appellate Court is bound to take notice of the change in law
The Additional Judicial Commissioner was competent to take notice of the change in the law
154 E F 155 G Mohanlal Chunilal Kothari vs Tribhovan Haribhai Tamboli   715 716
Gummalapura Taggina Matada Kotturswami vs Setra Veerava and others ATR  579 and Jose De Costa and another vs Bascora Sedashiva Sinai Naroornin and others AIR 1975 SC 1843 1849 followed
3 The proposition adumbrated viz that the executability of the decree was a vested right which could not be taken away by the applicability of the Code of Civil Procedure to Goa during the pendency of the appeal is wrong since the executability of the decree could not be considered to be a vested right 155F G Lalji Raja and Sons
vs Firm Hansraj Nathuram   followed
4 The contention 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 was wrong156 C D As the decree was passed by the Bombay High Court section 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 High Court passed the order of transfer the Code of Civil Procedure had not been applied to Goa
But that does not put the respondentdecree 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 CPC 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 CPC 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 15 6 1966
156 D F HELD FURTHER 5 The instant case is a fit case in which the doctrine A 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 a decree
The decree lay dormant 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
156 F G 6 In 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 section 38 of the Code of Civil Procedure also not having suffered from any inherent lack of jurisdiction the decree became enforceable and executable as soon as the Code of Civil Procedure was applied to Goa
157 E F 151 Bhagwan Shankar vs Rajaram Bapu Vithal AIR 1951 Bom
125 127 approved
7 article 2613 of the Constitution enjoins that a decree shall be executable in ally 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 article 2613 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 holderrespondent the Code of Civil Procedure had not been applied 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 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 section 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 Judicial 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 was in force
Hence the contention that the words according to law in article 2613 would mean that the decree would 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 vs Bascore Sadashiva Sinai Narcornin and others AIR 1975 SC 1843 1849 followed