Shaligram Vs. Daulat Ram  INSC
175 (30 April 1962)
30/04/1962 KAPUR, J.L.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1967 AIR 739 1963 SCR (2) 574
Foreign Decree-Execution-Judgment-Debtor Submitting
to jurisdiction of court-Decree if executable against him.
The High Court of Bombay passed a decree
against three defendants who were resident of the former state of Hydera- bad.
Before it was passed the appellant had applied for leave to defend which was
conditionally granted and on his failure an ex-parte decree was passed. The
appellant did not file any written statement. On transfer, the respondent took
out execution in the Court of District judge, Bhir, to which the appellant object
on the ground inter-alia, that the decree was a foreign decree and could not be
executed in the Court at Bhir, which being overruled, an appeal was taken to
the High Court and the High Court dismissed the appeal on the ground that the
appellant had submitted to the jurisdiction of the Bombay High Court.
Held, that a person who appeared in obedience
to the process of a foreign Court and applied for leave to defend the suit
without challenging the jurisdiction of the Court must be held to have
voluntarily submitted to the jurisdiction of such Court and therefore this
decree did not suffer from any defect which a foreign decree would suffer
without such submission.
Shaik Atham Sahib v. Daviud Sahib, (1909) I.
I. R. 32 Mad.
469, referred to.
Held, further, that as the Code of Civil
Procedure was made applicable to Hyderabad State when order of transfer was
made, the decree could be executed there.
CIVIL APPELLATE, JURISDICTION : Civil Appeal
No. 225 of 1961.
Appeal from the judgment and order dated
October 24, 1958, of the Bombay High Court in No, 50 of 1958, 575 Ganpat Rai,
for the appellant.
M. S. K. Sastri and M. S. Narasimhan, for the
1962. April 30. The Judgment of the Court was
delivered by KAPUR, J. This is an appeal on a certificate of the High Court
under Art. 133(1) (e) of the Constitution against the judgment and order of the
High Court of Bombay. The appellant was the judgment-debtor and the
decree-holder is the respondent.
The decree was passed in August 26, 1931 in
Summary Suit No.
3437 of 1930 by the High Court of Bombay
against three defendants who were resident & of Parbhani district in the
former State of Hyderabad. Before the decree was passed the appellant had
applied for leave to defend and leave was conditionally granted on his
depositing Rs. 5,000/within four weeks. This, he did not do and on his failure
to do as an ex-parte decree was granted for Rs. 52,032-7-0 including costs and
future interest at 6% per annum. The appellant did not file any written
statement. The decree was transferred for execution to the District Judge,
Bhir, in Hyderabad States. The respondent took out execution on June 18, 1954
in the Court of the District Judge, Bhir, to which objection was taken by the
appellant, inter alia, on the ground that he had not submitted to the
jurisdiction of the Bombay High Court which was a foreign court and therefore
the decree was a foreign decree and could not be executed in the Court at Bhir.
This objection was overruled. Against that order appeal was taken to the High
Court and it was held by that Court on July 29, 1958 that the appellant had
submitted to the jurisdiction of the Bombay High Court and the appeal was
therefore dismissed and the order of the Executing Court upheld. The 576
Letters Patent appeal against that judgment was dismissed in limine on October
24, 1958. It is against that order that the appeal has been brought on the
certificate of the High Court under Art. 133(1)(c).
A person who appears in obedience to the
process of a foreign Court and applies for leave to defend the suit without
objecting to the jurisdiction of the Court when he is not compellable by law to
do so must be held to have voluntarily submitted to jurisdiction of such Court
Shaikh Atham Sahib v. Davud Sahib(1). Therefore it cannot be said that this
decree suffered from the defects which a foreign ex-parte decree without such
submission would suffer from.
The order for transfer was made at a time
when the Indian Code of Civil Procedure became applicable to the whole of India
including the former territories of Hyderabad State.
The order of transfer was therefore valid and
effective and the decree could therefore be executed.
The appeal, in our opinion, is without merit
and is therefore dismissed with costs.
(1) (1909) T.L.R. 32 Mad. 469.