Case: Narhari Shivram Shet Narvekar Vs. Pannalal Umediram

This is a judgment debtors appeal on a certificate of fitness granted by the Additional Judicial Commissioner, Goa, Daman & Diu and arises under the following circumstances.2. The decree holder/respondent had brought a suit on the original side of the Bombay High Court being Suit No. 203 of 1956 against the appellant/judgment debtor for recovery of certain amount of money. The Bombay High Court passed a decree for Rs. 65, 953.79 on June 29, 1960. In the suit brought by the decree holder/respondent summons were served on the defendant/judgment 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 become 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 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 debtor/appellant filed his reply. While the appeal was pending before the Additional Judicial Commissioner theCode 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 261 (3) 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.

Reasoning:
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.