Narhari Shivram Shet Narvekar V.Pannalal Umediram: The Case Deals With The Issue Of Whether A Decree Issued By An Indian Court In A Foreign Land Before It Became A Part Of India Is Executable Or Not

DATE OF JUDGMENT:
16th January, 1976.

JUDGES:
Fazal Ali, Syed Murtaza.

PARTIES:
Narhari Shivram Shet Narvekar(Appellant)
Pannalal Umediram (Respondent)

SUMMARY

The following case deals with the issue of whether a decree issued by an Indian court in a foreign land before it became a part of India is executable or not.

OVERVIEW

1. The present case is regarding a decree passed by the Bombay High Court.
2. 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.Goa became a part of India and was made a Union Territory of India by the Constitution (Twelfth Amendment) Act, 1962 passed on 27-3- 1962.
3. The execution application before the Executing Court at Panjim was dismissed, holding that the decree transferred to it by the Bombay High Court was not executable.
4. An appeal was preferred to the Additional Judicial Commissioner. The Additional Judicial Commissioner held that in view of Art. 261(3) of the Constitution, the decree passed by the Bombay High Court could not be treated as nullity and, was therefore, executable.
5. Aggrieved by the decision of the Additional Judicial Commissioner, the appellant filed an appeal before the Supreme Court.

ISSUES

The following issue was analyzed by the Supreme Court:

• Whether a decree issued by an Indian court in a foreign land before it became a part of India is executable or not.

IMPORTANT PROVISIONS

• Art. 261(3) of the Constitution: Final judgments or orders delivered or passed by civil courts in any part of the territory of India.
• Sec. 2(6) of Civil Procedure Code: Definition of foreign judgment.
• Sec. 38 of Civil Procedure Code: Court by which decree may be executed.
• Sec. 39 of Civil Procedure Code: Transfer of decree.

ANALYSIS OF THE JUDGMENT

1. The counsel for the appellant contended that the decree passed by the Bombay High Court was a nullity either on the ground that it was passed by a foreign Court or on the ground that the transfer was invalid under s. 38 of the Code of Civil Procedure. The counsel sought to justify this contention by referring to the decision given in the case of Raj Rajendra Sardar Maloji Marsingh Rao Shitole v. Sri Shankar Saran and Ors (1962 AIR 1737).
2. It was then argued by the counsel for the appellant 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.
3. The counsel for the appellant, however, submitted that the words 'according to law' in Art. 261(3) would clearly show that the decree would be executable only in accordance with the law in force, i.e., the Portuguese Code.
4. The counsel for the respondent contended that even if the transfer of the decree under Sec. 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.
5. The 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 anysuch provision in the Portuguese Code it should not be entertained.
6. The counsel for the respondent also argued that in view of the provisions of Art. 261(3) 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.
7. The court, on hearing the arguments made by the appellant and the respondent, held that the decree passed by the Bombay High Court was valid.
8. The court held that the provisions of Art. 261(3) of the Constitution 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.
9. The court held that though it was true that at the time when the executing Court dismissed the suit of the 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, 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 s. 4 of the Act.
10. The court, therefore, held that 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.

CONCLUSION

The issue that the present case deals with is whether or not a decree issued by an Indian court in a foreign land before it became a part of India is executable. The court, in the present case, held in the positive and held that the decree passed by the Bombay High Court was clearly executable. The court held that the appeal filed by the appellant failed to justify the position taken by the appellant and, therefore, dismissed the same. The court, while dismissing the appeal, held that in view of the somewhat uncertain legal position, it allowed the parties to bear their respective costs in this court.

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