Report No. 96

8. Indian Independence Pakistan Courts. (Pending proceedings) Act, 1952 (9 of 1952)

This Act was passed to make certain legal provisions, in view of the partition of India and Pakistan. The Act is still in force though section 5 was repealed by the Repealing and Amending Act, 1957 (36 of 1957).

Section 2 of the Act reads as under:

"2. Definition.-In this Act, the expression 'decree to which this Act applies' means any such judgment decree or order as is referred to in

(i) Clause (3) of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, or (ii) Paragraph (5) or paragraph (6) of Article 13 of the High Courts (Bengal) Order, 1947, or (iii) paragraph (4) or paragraph (6) of the High Courts (Punjab) Order, 1947, which has been or may hereafter be passed by a court in Pakistan and which imposes any liability or obligation on a Government of India."

Section 3 reads as under:

"3. Certain Pakistan decrees not to be given effect to in India.-Notwithstanding anything contained in any of the Orders referred to in section 2, no decree to which this Act applies shall be given effect to by any court or authority in India in so far as such decree imposes any liability or obligation on any Government of India."

By section 4 of the Act, two modifications have been made in the law otherwise applicable to the proceedings in question, namely:

(i) the law of limitation; and

(ii) the law regulating forum.

As to the point of limitation, section 4 allows a period of one year from the date of commencement of the Act or date of decree, whichever is later. As to the question of forum, the section provides that the suit permitted by the Act can, notwithstanding section 20, Code of Civil Procedure, 1908, be instituted in a court (otherwise competent to try it), within whose jurisdiction the person instituting it voluntarily resides or carries on business or personally works for gain. The subject-matter of the Act seems to fall within the Concurrent List, entry 13 (Civil procedure.... Limitation) and Union List, entry 97 (residuary).

Action to be taken.-At the first sight, it may appear that after 30 years of independence, the need for the Act under discussion should no longer exist. However, it is not possible to say with absolute certainty that no such suit as is governed by the Act can be filed at the present day. Disability, fraud or other special factors may extend the period of limitation for filing the proceedings in question. It does not, therefore, appear advisable to repeal the Act.