NARHARI SHIVRAM SHET NARVEKAR v. PANNALAL UMEDIRAM

Raj Rajendra Sardar Maloji Marsingh Rao Shitole v. Sri Shankar Saran and others, L1963] 2 S.C.R. 577, distinguished and held not applicable. Shaligra1n v. Dau/at Rani, [1963] 2 S.C.R. 574 and Lalji Raja & Sons v. Finn HanSraj Nathuran1, [1971] 3 S.C.R. 815, 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-<1ebtor. A t<Ji'tiorari, the execution proceedingsr being purely a matter of procedure it is well-settled that any change in law which is made during the pendency of the cause \vould be deen1ed lo be retro-active in operation· and the Appellate Court is bound to take notice of the change in law. The Additional Judicial Com miss1Jner was competent to take notice of the change in the law. [154 E--F, 155 Gl .1 ( Mohanlal Chunilal Kothari v. Trihhovan Haribhai Tarnboli, [1963] 2 S.C.R. 707, 715-716; Gununafapura Taggina Matadil Kotturswami v. Setra Veerava and others, A.T.R. 1959 S.C. 577, 579 and Jose De Costa and another v. Bascora Sedashiva Sinai Naroornin and others, A.I.R. 1975 S.C. 1843, 1849, fo11owed. #--- (3) The proposition adumbrated v:iz., that the executability of the decree v.·as a vested right which could not be taken av.1ay by the applicability of the Code of Civil Procedure to Goa during the pendency of the appeal is wrong, s~nce the executability of the decree could not be considered to be a vested right. [155 F-G] Lalji Raja and Sons. v. Finn Hansraj Nathurani [1971] 3 S.C.R. 815, fo1lo\ved. (4) The contention thatj as the Code of Civil Procedure was not applicable to Goa at the tirne when the Bombay High Court passed the order transferring the decree to the Goa Court, the order of transfer was absolutely Without juris uiction WflS wrong. [156 C-Dl As the decree ·was passed by the Bombay High Court, s. 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 1-ligh Court passed the order of transfer, the Code 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 infirmity, it could not be executed so long as the C.P.C.- was not made applicable to Goa. Thus, the only bar \vhich stood in the \Vay of the execution of the decree was the non-applicability of the provisions of the C.P.C. 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 \vas applied to Goa on 15-6-1966. [156 D-F] HELD FURTHI;:R: (5) The instant case is a fit case in which the doctrine of eclipse would apply and ~he wall or the bar which separated Bombay from Goa having disappeared, there was iio impediment in the execution of a decree. The decree lay dormant only so far as no bridge \Vas 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] ! • H (6) Jn 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 s. 38 of the Code of Civil Procedufe also not having suffered from any inherent lack of jurisdiction, the decree became enforceable and executable as soon as the Code of Civil Pro cedure \vas applied tO Goa. [157 E-F} • • NARHARI v. PANNALAL (Fazal Ali. !.) 15 I BhaRwan Shankar v. Rajara1n Bapu Vithal, A.J.R. 1951 Born. 125, 127, approved. (7) Art. 261(3) of the Constitution enjoins that a decree shall be executable in any 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 Art. 261 (3) would apply to the decree passed by the Bombay High Court. The Article would also _apply to Goa because at the time when 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-holder /respondent, the Code of Civil Procedure had not been <lpplied 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 (Exten sion of the Code of Civil Procedure and the Arbitration) Act, 1965; the Portu~ guese 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 oi s. 4 of the Act. Thus, when the Civil Procedure Code was made applicable the appellate Court, namely, to Goa during the pendency of the appeal, the Additional J udiciul Commissioner was bound the matter in accordance with in force. Hence, the contention the matter in accordance with the law that waS1 inforce. Hence, the contention that the words "according to law" in Art. 261(3) would mean that the decree v.ould be executable only in accordance with the law in force in the Portuguese Code is not correct. [158 B-F] to decide that was [Jose De Costa and another v. Bascore Sadashiva Sinai Narcornin and 01/iers, .-\.1.R. 1975 S.C. 1843, 1849 followed.] OvrL APPELLATE JURISDICTION : 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 Au, 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 holder/respondent had brought a suit on the original side of the Bombay High Court being Suit No. 203 of 1956 against appellant/judgment debtor for recovery of certain amount of money. The Bombay High Court passed a decree for Rs. 65,953.79 In the suit brought by the decree-holder/respon on June 29, 1960. dent 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 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 SCT/76 A B c D E F G H A B c D E F 152 SUPREME COURT REPORTS [1976] 3 S.C.R. to the Goa Court for execution. In pursuance of the order of 11c Bombay High Court the decree-holder filed an execution suit before the Executing Court at Panjim on Janumy 21, 1964. The Executing Court however by its order dated April 26, 1 %5 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 I, 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 the Code of Civil Procedure was extended to Goa on June 15, 1966. Accordingly tlie 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 Art. 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. In support of the appeal Mr. B. N. Lokur submitted three main contentions before us : (I) 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 appro\·eci by the Goa Court under s. 50 of the Portuguese Code; (2) that the order of the Bombay High Court transferring the decree for execution to the Goa Court under ss. 38 & 39 of the Code of Civil Procedure was without jurisdiction inasmuch 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 appellantljudgmcnt debtor the decree continued to be inexecutable and could not be validated by Art. 261 ( 3) of the Omstitution of India. G 11 Mr. D. V. Patel appearing for the respondent/decree-holder sub mitted 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 Art. 261 (3) of the Constitu tion 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 appellant/judgment-debtor, that the decree passed by the Bombay • NARllARl v. PANNALAL (Fa~al Ali, !.) 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 s. 38 of the Code of Civil Procedure, was the decision of this Court in Raj Rajendra Sardar Maloji Marsingh Rav Slzito/e v. Sri Shankar In that case it appears that the appellant had Smw1 and Ors.(I). 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 Courl. It was mainly contended before this Court that the decree being that of a foreign Court was a nullity and the execution application was nm Jn these peculiar circun1stanccs this Court, after con- nlaintainablc. sidering the entire Jaw on the subject, concluded as follows : B C "Our conclusion therefore is that the Allahabad Court had no power to execute the deem; either under section 38 or under ss. 43 or 44 of the Code of Civil Procedure. Therefore, even if the decree was not a foreig11 decree, the decree-holder's application for execution was rightly dismis- sed." An analysis of Shitole's case (supra)_ would clearly show that the facts in that case arc 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 arc not at all applicable In the first place the decree in Shitole's case( 1) to the present case. was admittedly passed by the Gwalior Court in I 94 7 when Gwalior being a princely State the Court which passed the decree was un doubtedly a foreign Court. Secondly, the judgment-debtors/defen dants did not appear before the Gwalior Court at all as a result of which an ex parte decree was passed. According to Private Inter national 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 docs not appear at all and does not take part in the proceedings of the Court. Thirdly, it would appear that the provisions of Art. 261 (3) of the Constitution would not apply to the facts of Shitole's case(') because the constitutional provisions not being could not apply to decrees passed before the coming into force of the Constitution. ln view of these circumstances therefore it cannot be said that Shito/e's case(') referred to above is of any assistance to the appellant in deciding the issues involved in this case. retrospective D E F G On the other hand the decision in Slzaligrum v. Daulat Ram(') appears to be directly in point so far as the facts in the present case In that case also a decree was passed by the Bombay arc concerned. 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 H (I) [196.3] 2 S.C.R. 577. (2) [1963] 2 S.C.R. 574. 154 SUPREME COURT REPORTS [1976] 3 S.C.R. A 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 volun tarily submitted to jurisdiction of such Court Shaikh A tham Sahib v. David Sahib [1909] I.L.R. 32 Mad. 469. There- fore it cannot be said that this decree suffered from the de fects which a foreign ex-parte decree without such submis sion would suffer from. The order for transfer was made at a time when the Indian Code of Civil Procedure became ap- plicable to the whole of India including the former territories of Hyderabad State." In Lalji Raja & Sons v. Firm Hansraj Nathuram(I) this Court reiterated the view taken in Shaligram's case (supra). 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 a nullity. It was also ~ Learned counsel appearing for the appellant however submitted that since the Code of Civil Prqcedure 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 Judicial during the pendency of the appeal before the Additional 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. Ill Mohan/al Chunilal Kothari v. Tribhowan Haribhai Tamboli(') it was clearly ruled by this Court that the Appellate Court was b.ound 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 appel late stage that the second notification was issued cancelling the first. Hence, the Court was bound to apply the law as it was found on the date of the judgment. Hence, there is no question of taking away any vested rights in the land lords." (!) [19711 3 S.C.R. 815 (2) [19631 2 S.C.R. 707, 715-716. B c D E F G H NARHARI v. PANNALAL (Fazal Ali,!.) 155 To the same effect is the decision of this Court in Gummalapura A Taggina Matada Kotturuswami v. Setra Veeravva and others(') 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 v. Keshwar Lal Chaudhuri -1940 FCR 84)" A similar view was taken by a recent decision of this Court in Jose De Costa and another v. Bascora Sadashiva Sinai Narcornin and others(') where this Court observed as follows : "Before ascertaining the effect of the enactments afore said passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind two well cstablished 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 ai the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendmcnt" (see Delhi Cloth and lnco111e-tax Commr.-54 Ind. General Mills Co. Ltd. v. App. 421 (AIR 1927 PC 242). 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 arc 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 exccutability 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 pcndency of the appeal, the decision of this Court in Lalji Raja & Sons' case (supra) is a clear authority againstthe pro position adumbrated by the learned counsel for the appellant. In that case this Court appears to have considered this point in all its com prehensive aspects and was of the_opinion that the executabi!ity of the decree could not be considered to be a vested right. gection this Court made the following observations : In this con- G "Therefore the question for decision is whether the non executability of the decree in the Morena court under the law in force in Madhva 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 H (I) A.i~R. (1959)-S:C~ 577, 579 (2) A.l.R.1975S.C.1843, 1849. B c D E F • A B c D E F G H 156 SUPREME COURT REPORTS (1976] 3 S.C.R. a decree within a particular territory can be corn;.idcred 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 arc now made executable in the whole of India. The change made is one relating to procedure and jurisdiction ................... It was tk invalidity of the order transferring the decree to the Morena court that stood in the way of the decree-holders in execut ing 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 and that court is now made competent to exe cute 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. trans fer 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, s. 38 o[ the Code of Civil Procedure would clearly apply because the decree passed by the Bombay High It is true that at the time when the Court was not a foreign decree. Bombay High Court passed the order of transfer, the Code of Civil Procedure bad not been applied to Goa. But that does not put the respondent! decree-holder out of Court. The decree could be trans ferred 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-applica bility 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 no impediment in the execution of the decree. The decree lay Jormant 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 v. Rajaram Bapu Vithal( 1) Chagla, C.J. as he then was, while delivering the opinion of the Full Bench of the Bombay High Conrt, observed as follows : "Therefore, as far as this particular decree was concern ed, as the defendant, we are assuming, did not submit to the (!) A.l.R. 1951 Born. 125. 127. • • • • NARHARl \'. PANNALAL (Fa::.al Ali, J.) 15 7 jurisdiction of the Sholapur Court, quae the Akalkot Court, 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. 13ut once it is conceded that the decree was not a nullity & it was valid & binding as far as the Sholapur Court was con cerned. then there is 110 difficulty, with respect. in under ~rhich u·e lnn·e to standing & appreciating the judgn1e11t consider in this Full Bench, because if the charac/er of the Akalkol Court changes & if the status of the defendanl alters hecause of that facl, then the i111pedi111e111 which was initially tliere in the decree being enforced in the Akalkot Court dis unenforceable till that appears & the decree which was change came aboul becomes enforceable & executable in the Akalkot Court. This is not in any way violating private international law. Private international law remains the same. But under the circumstances of the case the Shoiapur 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 is executable as it has been passed by a Court of competent jurisdiction." It would appear therefore that an idcutical 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 iu the proceedings of the Court to some extent, and the order of transfer under s. 3 8 of the Code of Civil Procedure also not having suffered from any inherent lac,k 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 Pro cedure to Goa and the repeal of the Portuguese Code which was in force before the provisions of the Code of Civil Procedure were appli ed. The Additional Judicial Commissioner was, therefore, fully justi fied 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 s. 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 ,\ B c D E F G H A B c D E F G H 158 SUPREME COURT REPORTS [J 976] 3 S.C.R. 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 In these circumstances, we do not think it necc' not be entertained. sary to go into this question, particularly when the order of the Addi tional Judicial Commissioner can be upheld on other grounds mention ed by us. Finally it appears that this case is clearly covered by the principle' contained in Art. 261 (3) of the Constitution of India which rum thus : ' • • "Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable territory according to of ~~ecution anywhere within that 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 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. It is true that at the time when the executi11g Court dismissed the suit of the decree-holder/respondent the Code of Civil Procedure had not been applied and the Portuguese Code co11- tinued to apply but after the application of the Code of Civil Proc<: dure by virtue of the Goa, Daman and Diti (Extension of the Code of Civil Procedure and the Arbitration) Act, 1965 (Act 30 of 1965J 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 s. 4 of the Act. Thus when the Code of Civil Procedure wai made applicable to Goa during the pendency of the appeal, the Appellate Court, namely, the Additional Judicial Com missioner, 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 applica bility of the Portuguese Code, observed as follows : "Thus considered, it is clear that the procedural provi sions 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 Jaw relating to Reclamacao stood repealed and no substan tive right or obligation had been acquired or incurred under NARHARI v. PANNALAL (Fazal Ali, J.) 159 that repealed law within the meaning of the first proviso to S. 4 (I) of Act 30 of 1965, the appellants cannot be de barred from canvassing in this appeal under Article I 36, the pica of prescription notwithstanding the fact that they did not file any Reclamacao in the Court of the Judicial Commis sioner. We therefore negative the preliminary 0bjection raised by the respondents." ., For these reasons, therefore, we find ourselves in complete agree ment with the view taken by the Additional Judicial Commissioner 'and hold that the decree passed by the Bombay High Court was clearly exeuctablc. The Executing Court will now proceed in accord ance with the law as directed by the Additional Judicial Commis 'Sioner. The appeal ·fails and is accordingly dismissed but in view of the ·somewhat uncertain legal position we leave the parties to bear th~ir respective costs in this Court. .. A B c S.R Appeal dismissed.