Case: Narhari Shivram Shet Narvekar Vs. Pannalal Umediram

remains the same. But under the circumstances of the case the Sholapur court no longer being a foreign court qua the Akalkot court the question of private international law does not arise at all. The decree is then being executed under the municipal law and clearly under the municipal law the decree 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 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 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 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.13. 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 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:14. 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 the 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 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 executing Court dismissed the suit of the decree holder/respondent 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) Act, 1965 (Act 30 of 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 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 Costas case (supra) this Court, while dwelling upon the applicability of the Portuguese Code, observed as follows : [pp. 927, 928, paras 36, 39]Thus considered, it is clear that the procedural provisions of the Portuguese Civil Code were no longer applicable to this case with effect from June 15, 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 lift undecided by the court below.To sum up, since on and from June 15, 1966 the Portuguese law relating to Reclamacao stood repealed and no substantive right or obligation had been acquired or incurred under that repealed law within the meaning of the first proviso to Section 4 (1) 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.15. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 followsOur conclusion therefore is that the Allahabad High Court had no power to execute the decree either under Section 38 or under Section 43 or 44 of theCode of Civil Procedure. Therefore, even if the decree was not a foreign decree, the decree holders application for execution was rightly dismissed.An analysis of Shitoles 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 presentview of these circumstances therefore in cannot be said that Shitoles case referred to above is of any assistance to the appellant in deciding the issues involved in thisdo not think that even by straining the language of the provision it can be said that the non- executability of 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 . . . It was the invalidity of the order transferring the decree to the Morena court that stood in the was 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 Code to Madhya Bharat, want of jurisdiction on the part of the Morena court was remedied and that court in now made competent to execute theare, however, unable to agree with this contention. To begin with as the decree was passed by the Bombay High Court, Section 38 of theCode 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, theCode 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 an impediment or an infirmity it could not be executed so long as theCode 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 theCode of Civil Procedure to Goa. This was, however, not an insurmountable bar or an obstacle and the bar or the obstacle disappeared the moment theCode 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 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 theCode of Civil Procedure to Goa the decree became at oncethese 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:14. Finally it appears that this case is clearly covered by the principles contained in Article 261(3) of the Constitution of India which runsjudgments 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 tois 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 the 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 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 executing Court dismissed the suit of the decree holder/respondent theCode of Civil Procedure had not been applied and the Portuguese Code continued to apply but after the application of theCode of Civil Procedure by virtue of the Goa, Daman and Diu (Extension of theCode of Civil Procedure and the Arbitration Act) Act, 1965 (Act 30 of 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 theCode 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, theCode of Civil Procedure. In Jose da Costas case (supra) this Court, while dwelling upon the applicability of the Portuguese Code, observed as follows : [pp. 927, 928, paras 36, 39]Thus considered, it is clear that the procedural provisions of the Portuguese Civil Code were no longer applicable to this case with effect from June 15, 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 lift undecided by the court below.To sum up, since on and from June 15, 1966 the Portuguese law relating to Reclamacao stood repealed and no substantive right or obligation had been acquired or incurred under that repealed law within the meaning of the first proviso to Section 4 (1) 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.15. 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.