RAJ RAJENDRA SARDAR MALOJI versus SRI SHANKAR SARAN AND UH.S.

Citation: [1963] 2 S.C.R. 577 · Decided: 30-04-1962 · Supreme Court of India · Bench: J.L. KAPUR · Disposal: Dismissed

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

Judgment (excerpt)

2 s.c.R. 
SUPREME COURT REPORTS 
577 
(J. 
RAJ RAJENDRA SARDAR MALOJI 
MARSINGH RAO SHITOLE 
f). 
SRI SHANKAR SARAN AND UH.S. 
L. KAPuR, A. K. SARKAR, K. C. D..\s GuPTA, 
N. RAJAGOPALA AYYANGAR and J. R •. 
MuDHOLKAR, JJ.) 
. ~ -'; 
Foreign Decree-Decree pa&Std in Gwalior in Nooembu 
1948-Transfer for execulion to U. P. in September 1951-Exe· 
cation application in U. P .-Maintainability of-"Civil Court 
in a Part B State," connotation of-Code of Civil Procedure, 
1908 (V of 1908), ••· 2 (5), 2 (6), 13, 38, 39, 43 and 44-Code 
of Civil Procedure (.Amendment) .Act, 1951 (II of 1951)-Con· 
-
' 
. stitution of India, Art. 261 ( J). 
. 
The appellant instituted a suit for the recovery of 
money against the re1pondents in a Court in Gwalior State 
in May 1947. The respondents who were resident! in U. P. 
did not appear before the court and in· November 1948 the 
Gwalior Court passed an ex parte decree. On September 
14, 1951, the Gwalior Court transferred the decree for execu-
tion to Allahabad, and on October 16,, 1951, the appellant 
filed an application for execution of the decree before the 
Allahabad Court. The· respondents contended that the 
decree being a decree of a Foreign Court to whose jurisdiction 
they had not submitted was a nullity and the execution 
application in respect thereof was not maintainable. 
Held, that the decree was not executable at Allahabad. 
Per Kapur, Ayyangar and Mudholkar, JJ.-The decree 
of the Court in Gwalior State sought to be executed was a 
~ foreign decree which not change i.ts nationality in•pite of 
subsequent constitutional changes or amendments in the Code 
of C.ivil ·Procedure. 
On the day on which it passed the 
decree the Gwalior Court was a foreign Court . within the 
meaning of s. 2 (5) of the Code. None of the conditions 
necessary to give its judgment extra-territorial validity 
existed (i) the respondents were not the subjects of Gwalior; 
(ii) they were not residents in Gwalior at the time the suit 
was filed, (iii) they were not temporarily present in Gwalior 
when the proc""s was ·served upon them, (iv) they did not 
select the forum which passed the decree against theni, (v) 
they did not voluntarily appear before the court, and (vi) 
they had not contracted to submit to the jurisdiction of the 
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578 
SUPREME OOURT REPOR'.i.'S [1963] 
foreign rnurt. The Gwalior court wu therefore not a court 
of competent jurisdiction and ita decree was a nullity outtide 
the United State ( Madhya Bharat ) of which Gwalior was 
a part on the date of the decree. The United State did 
not become a part of the "territory ot India" till the Con-
stitution came into force. 
The effect of the judgment obtai-
ned did not change with the constitutional changes unl-
thcre was some specific provision to that effect. The decree 
was foreign when it was born and It continued to be so as 
there was no procas or procedure for its becoming a natura-
lised Indian decree. Clause 20 of the Adaptation Order, 
1950 preserved the rigb.ts and liabilities under the decree 
as thcv were before the Corutitution came into force. It 
was not correct to say that the decree which was a nullity 
before the Constitution ·came into force suffered only from 
the defect of un-enforcibility by execution; a. 13 of the Code 
created substantive rights and defences which were open to 
the respondents under that section were not taken away by 
any constitutional changes. 
Sirda-t Gurdgal Singh v. Raja of Faridltol, (1894) L. R. 
21 I. A. 171, Rao Shio Baha<Jvr 
Singh v. TM. 
Stal#. of 
Vindhya Pracluh, ( 1953) S. C. R. 1188, VirtMra Singh v. 
Stak of U. P. ( 1955) 1 S. C. R. 415, Prem Nalh Kaul v. 
State of Jammu di K1J1lmir, ( 1959) Supp. 2 S. C. R. 270, 
Sauce v. Ameer R..Ur Sadiq Mohamma<J of &Mwanlpur, (1952) 
2 Q. B. 390, Ja,,,.r<Jhan 11'4411 v. Suau of Hyd•rabad, (1951) 
S. C. R. 344, Laclm&and.,. K<walram Ahuja v. Stal#. of Bom· 
bay. (1952) S. C.R. 710, KMha'"'" Madha!IG .Me"°" v. 8141< 
of Bomba11, (1951) S. C. R. 28S, Kiahori Lal v. Shanti Dev. 
A. I. R. (1953) S. C. 441, Lazmi 0Aan4 v . .Mii. Tipvri 
I. L. R. 1956 Raj. 236, Shah Kanti Lat v. DOMinion o} 
India, A. I. R. 1954 Cal. 67, F. Radhuham Roalran Lal 
v. Kundanlal Mohanlal, I. L. R. 1956 Punj. 434 and Ra,,.. 
kia/l.an Janakilal v. S<lh Harmv/di.ari Lachminarayan, A. I. R. 
1955 Nag. 103, referred to. 
The Indian Code of Civil Procedure was made app Ji. 
cable 

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