SHALIGRAM versus DAULAT RAM

57• SUPREME OOURT REPOltTS [1963)

SHALIGRAM

DAULAT RAM (J. L. KAPUR, A. K. SARKAR, K. c. DAS GUPTA, N. RAJAOOPALA AYYA.NOAR and J. R. MUDHOLKAR, JJ.)

Foreign Decree-E:recution-.Judgment-Debtor Submit· tin{l to jurisdictirm of rourt-Decree if exl'cutablc again8t him.

The High Court of Bombay passc:I decree against three defendants who were resident of the fo!"mer state of Hydera ... bad. Before it was pa5'ed the .appellant had applied for leave to defend which was conditionally granted and on his failure an ex-partc decree was passed. The appellant did not file any written statement. On transfer, the re,p>ndent took out execution in the Court of District Judge, Bhir, to which the c..ppcllant object on the ground inter.alia, that the der.ree was foreign decree and could not be executed· in the C::>urt at Bhir, which being overruled, ;in appeal wa• taken to the liigh Court and the High Court dismissed the appeal on the ground that the appellant had submitted to the jurisdiction of the Bombay Hig!> Court.

Htld that person who appeared in obedience to the ·

process or'a foreign qourt an~ app~ie~ for leave to defend the •uit without challenging the JUI1Sd1cuon of the Court must be held to have voluntarlly submitted to the jurisdiction of such Court and therefore this decree did not suffer from any defect which foreign decree would suffer v.dthout such submission.

Shaile Atham Sahih v. Da!JUd Sahib, (1909) I. L R. 32 Mad. 469, referred to.

HtUl, further, that as the Code of Civil Procedure was made applicable to Hyderabad State when order of transfer was made, the decree could be exocuted there.

CrvIL APPELLATE JURISDICTION : Civil Appeal N-0. 225 of l!IBI.

Appeal from the judgment and order dated October 24, 1958, of the Bombaf High Coiut hi. L. .f. A. No. 50 of 1958.

2 S.C.R. SUPaEME OOURT REPORTS 575 Ganpat Rai, for the appellant. .11161 M.•8. K. 8astri and M. 8. Narasi,mkan, for ShGligmm the repondents. _ DtiulolRam •• 1962. April 30. The· Judgment of the Coiirt was delivered by JU.FUR, J.-This is an appeal on certificate of Kapur J. the High Court under Art. 133(1) (c) of the Consti-tution against the judgment and order of the· High Court of Bombay. The appellant was the judge-ment-debtor and the decree-holder is the respondent. The decree was passed in August 26, 1931 in Summary 8uit No. 3437 of_ 1930 by the High Court of Bombay against three defendants: who were resi-dents of Parbhani district in the former State -of Hyderabad. Before the decree was passed the appel-lant had applied for leave to defend and leave was conditionally grnnted 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 o bjeotion was taken by the .appellant, imer alia, odn. t~e grofunhd thBat hbe hadH~oht suCbmittedhto the juri-s 10tion o t om ay 1g ourt w ioh was foreign court; and therefore the decree was 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 appel-lant 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 ·

llHt

576 SUPREME OOURT REPORTS [UHl81

Letters Patent appeal againat that judgment was

diemiBBed in limine on Ootober 24, 1958. It is agai· llllt that order that the appeal has been brought OJI the certificate or the High Court under Art. l33(l)(c).

person who appeal'IJ in obedience to the pro-

cel!8 of foreign Court and applies for leave to de-fend 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 1ubmitted to jurisdiction of 1uch Court Shaikh Atham Sahib v. DafJUd Sahib(l). Therefore it cannot be said that thiB decree suffered from the defects which foreign ex·parle decree without such submission would suf-fer from. The order for transfer was made at time when the Indian Code of Civil Procedure beoame applicable to the whole of India including the for-mer territories of Hyderabad State. The order of tran11fer waa tlaerefore valid and effective and the decree could therefore be executed.

The appeal, in our opinion, i& without merit

and is therefore dillmisaed with 001ts.

Appeal di.!mis&ed.

(I) (1909) J.L.R. 32 Mad. ~.

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