LexNARHARI SHIVRAM SHET NARVEKAR versus PANNALAL UMEDIRAM
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NARHARI SHIVRAM SHET NARVEKAR
v.
PANNALAL UMEDIRAM
January 16, 1976
(R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.J
149
('ode of Civil Procedure-Ss. 38 and
39-Transfer of a decree
dated
29-6-1960 passed by the Bombay lligh Court to the Goa Court for execution-
T¥hether it is a "foreign decree' within the rneaning of sec. 2(6), C.P.C. and
whether the High Court a "foreign court" within the n1eaning of s. 2(5) es-
pecially »'hen the parties subjected themselves to the jurisdiction of that Court
by prosecuting their case upto a certain stage.
,
('onstitution of India-Art. 261 (3 )-Meaning of
the
word
"according
to law"-Whether they refer to the "law in force" during the pendency of the
appeal or the "law in force" on the date of transfer of the decree for execution-
Scope of Art. 261(3 ).
Decree-Executability of a decree is not a vested right-Extension of the
provisions of Civil Procedure Code to a State later on does not affect the decree.
Jn the Civil Suit No. 203 of 1955, on the original side of the Bombay High
,Court, filed by the decree-holder /respondent against the appellant/judgment-
debtor for recovery of certain amount of money, summons were served on the
judgment-debtor who after filing his written staten1ent absented himself,
and
did not take any further part in the proceedings of the Court..1. resulting in a
decree dated 29-6-1960. for Rs. 65,953.79.
On 20-12-1961. 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.
The decree-holder applied to the
Bornbay High Court for transferring the decree to Goa Court for execution and
by t.n order dated 28-8-1963 the decree was transferred to the Goa Court for
execution. The execution application before the Executing Cou1t at Panjim
filed on 21-1-1964 was dismissed on 26-4-1965, holding that the decree trans-
ferred to it by the Bombay High Court was not executable.
An appeal
was
preferrfd to the Additional Judicial Commissioner on 1-6-1965 and the appellant/
Judg1nent-debtor filed his reply.
During the pendency of the appeal, the Code
of Civil Procedure was extended to Goa on 15-6-1966 by the Goa, Daman and
Diu (Extension of the Code of Civil Procedure and Arbitration) Act (30) of
1965 and repealing the Portu.(?uese Code. The Additional Judicial Commis-
sioner by its order dated 28-6-1967 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, \Vas therefore, executable .
On appeal by certificate, the appellant/judgment-debtor contended ( 1) that
the decree passed by the Bombay High Court qua Goa Court was a nullity be-
ing 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 appn1Yed bv the Goa
Court under s. 50 of the Portuguese Code; (2) that the Bombay High Court
transferring _the decree for execution to the Gon Court under ss. 38 and 39 of
the C. P. C. was without jurisdiction inasmuch as the C. P. C. had not been
ap,plied to Goa when the order of transfer was passed: (3) that as the provisions
of the C.P.C. were applied to Goa after the order of the Executing Court
\vas passed and a vested right had accrued to the appellant/judgment-debtor. the
decree continued to be inexecutable and could not be validated by Art. 261 (3)
of the Constitution.
The respondent/decree-holder coritended (i) that inasmuch as the judgment-
debtor had anpeared and participated in the suit for some time the decree
passed by the Bombay High Court could not be said tO\ be a nullity (ii) that as
the C.P .C. was made applicable while the appeal was pending before the Ad-
ditional Judicial Commissiorler, Goa the decree became clearly ·executable and
the order of transfef of the decree by the Bombay High Court stood validated:
and (iii) that in view of the provisions of Art. 261(3) of the Constitution of
Jrtdia, there was no bar to the execution of the' decree, which was passed by a
court which was in the territory of India.
B:
c
E.
H
150
SUPREME COURT REPORTS
[ 197 6) 3 S.C.R.
A
Dismissing the appeal, the Court,
B
c
D
E
F
H
JIELD : ( 1) Where a party appears before the court, the decree of the court,
even if it is a foreign court, is not a nullity. [154-D]
Raj Rajendra Sardar Maloji Marsingh Rao Shitole v. Sri Shankar Saran and
.1
others, L1963] 2 S.C.R. 5Excerpt shown. Read the full judgment & AI analysis in Lexace.