LALJI RAJA & SONS. versus FIRM HANSRAJ NATHURAM

Citation: [1971] 3 S.C.R. 815 · Decided: 23-02-1971 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
G 
H 
LAUI RAJA & SONS. 
v. 
FIRM HANSRAJ NATHURAM 
February 23, 1971 
815 
[S. M. SIKRI, C.J., G. K. MITTER, K. s. HEGDE, J. JAGANMOHAN 
REDDY AND V. BHARGAVA, JJ.] 
Code of Civil Procedure; 1908, ss. 2(5), 2(12), 20, 38, 39, 40 48-
Code of Civil Procedure (Amendment) Act, 1950 (Act 2 of 1951), 
s. 20(1){b)-Decree passed under Code can be transjerred to any court 
governed b,v Code-Court in Madhya Bharct not governed by Code prior 
to passing of Act 2 of 1'951~Transfer of decree from West Bengal Court 
to Madhya B.hara~ Court while invalid before passing of Act 2 of 1951 
could be validly made thereafter-'Foreign Court', 'Foreign !Mcree', mean-
ing of-Foreign Decree when a nullity-'Privileges' and 'rights' when pro-
tected under s. 20(1)(b) of Act 2 of 1951-LimitMion for Execmion-
Section 48 whether provides a bar or period of limitation. 
The eppellants obtained a decree against the respondent in the court 
of Sub-Judge, Bankura (West Bengal) on December 3, 1949. On March 
28, 1950 they applied to the court which passed the decree to transfer the 
decree with a. certificate of non-satisfaction of the court at Morena in the 
then State of Madhya Bharat. It was ordered accordingly. The Judgment 
debtors resisted tne execut.on on the ground that the court had no juris-
diction to exeC'llte the same as the decree was that of a foreign court and 
that the same had been passed ex-parte. The court accep.ed that conten-
tion and dismissed the execution petition 0n December 29, 1950. On April 
l, 1951 the Code of Civil Procedttre (Amendment) Act 2 of 1951 came 
into force. 
By this Act the Code was extended to the former State of 
Madhya Bharat as well as vario-.is other places. 
Me~nwhile the appellants 
appealed against the order of the Additional O:strict Judge Morena dis-
missing the execution petition to the High Court of Madhya Pradesh. The 
appeal was allowed. 
In further appeal this Court restored the order of 
the Addi. District Judge, Morena. Thereafter on Fe'Jruary 15, 1963 the 
appellants filed another execution case before the Bankura Court praying 
for the transfer of the decree to the Mdrena Court for execution. The 
Bankura Court again ordered the transfer of the decree of the Morena 
Court. The judgment debtors resisted execut:on on the fo'lowing grounds : 
(I) that it was barred by res ;udicata in view of the aforesaid decision 
of this Court; ( 2) that it was barred by s. 48 of the Code of Civil Pro-
cedure; (3) that it was barred by limitation and (4) that it was not 
executable because it was the decree of a foreign court. The Addi. District 
Judge rejected the objections. 
The High Court jn appeal agr°'d with 
tho executing court that the execution petition was neiher barred by res-
iudicata nor was there any bar of limitation but it disagreed with that 
court and held that the decree was not exeC'lltable as the court which 
passed the decree was a fore'~n court. The decree holders filed the Pre-
sent appeal by special leave. The questions which fell for consideration 
were : (i) whether the decree under execution was not executable by courts 
situate in the area comprised in the former State of Madhya Bharat; 
(ii) whether the decree was barred by s. 48 of the Code. 
HELD: Per Sikri C.J., Mitter, Hyde and Bhargava JJ. (1) (a) On 
the date when the decree under execution was passed 'foreign court' was 
8-l 100SupCIJ71 
818 
SUPREME COURT REPORTS 
[1971] 3 s.c.R. 
defined in s. 2(5) of the Code as a court situate beyond the limits of 
A 
BritISb India which had no authority in British India and was not estab-
lished or continued by the Central Government. 
After the amendment 
of the Code of Civil Proceduro in 1951, 'foreign court' under the Coue 
means a court situat< outs1ue India and not established or continued by 
the authority of the Central Government. 
Whether we take the earlier 
definition or the present definition the Baokura Court could not be consi-
der<d as a foreign court within the meaning of that expression in the 
B 
Code. 
'Foreign judgment' is defined as the 'judgmenr of a foreign court'. 
Hence the decree under execution could not be considered as a foreign 
decree for the purpose of the Code. (820 D-GJ 
Accordingly the judgment-debtors could not take advantage of the 
provision in s. 13(b) of the Code under which the ex-parte decree of a 
foreign court is not conclu ive. 
Nor could they . take advantage of 
s. 13 ( d). They were served with notice of suit but did 

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