LAUI RAJA & SONS.

FIRM HANSRAJ NATHURAM

February 23, 1971

[S. M. SIKRI, C.J., G. K. MITTER, K. s. HEGDE, J. JAGANMOHAN

REDDY AND V. BHARGAVA, JJ.]

Code of Civil Procedure; 1908, ss. 2(5), 2(12), 20, 38, 39, 40 48- Code of Civil Procedure (Amendment) Act, 1950 (Act 2 of 1951), s. 20(1){b)-Decree passed under Code can be transjerred to any court governed b, v Code-Court in Madhya Bharct not governed by Code prior to passing of Act 2 of 1'951~Transfer of decree from West Bengal Court to Madhya B.hara~ Court while invalid before passing of Act 2 of 1951 could be validly made thereafter-'Foreign Court', 'Foreign !Mcree', meaning of-Foreign Decree when a nullity-'Privileges' and 'rights' when protected under s. 20(1)(b) of Act 2 of 1951-LimitMion for Execmion- Section 48 whether provides a bar or period of limitation.

The eppellants obtained a decree against the respondent in the court of Sub-Judge, Bankura (West Bengal) on December 3, 1949. On March

28, 1950 they applied to the court which passed the decree to transfer the decree with a. certificate of non-satisfaction of the court at Morena in the then State of Madhya Bharat. It was ordered accordingly. The Judgment debtors resisted tne execut.on on the ground that the court had no jurisdiction to exeC'llte the same as the decree was that of a foreign court and that the same had been passed ex-parte. The court accep.ed that contention and dismissed the execution petition 0n December 29, 1950. On April l, 1951 the Code of Civil Procedttre (Amendment) Act 2 of 1951 came into force.

By this Act the Code was extended to the former State of Madhya Bharat as well as vario-.is other places.

Menwhile the appellants appealed against the order of the Additional O:strict Judge Morena dismissing the execution petition to the High Court of Madhya Pradesh. The appeal was allowed.

In further appeal this Court restored the order of the Addi. District Judge, Morena. Thereafter on Fe'Jruary 15, 1963 the appellants filed another execution case before the Bankura Court praying for the transfer of the decree to the Mdrena Court for execution. The Bankura Court again ordered the transfer of the decree of the Morena Court. The judgment debtors resisted execut:on on the fo'lowing grounds :

(I) that it was barred by res ; udicata in view of the aforesaid decision of this Court; ( 2) that it was barred by s. 48 of the Code of Civil Procedure; (3) that it was barred by limitation and (4) that it was not executable because it was the decree of a foreign court. The Addi. District Judge rejected the objections.

The High Court jn appeal agr°'d with tho executing court that the execution petition was neiher barred by resiudicata nor was there any bar of limitation but it disagreed with that court and held that the decree was not exeC'lltable as the court which passed the decree was a fore'n court. The decree holders filed the Present appeal by special leave. The questions which fell for consideration were : (i) whether the decree under execution was not executable by courts situate in the area comprised in the former State of Madhya Bharat;

(ii) whether the decree was barred by s. 48 of the Code.

HELD: Per Sikri C.J., Mitter, Hyde and Bhargava JJ. (1) (a) On the date when the decree under execution was passed 'foreign court' was 8-l 100SupCIJ71

defined in s. 2(5) of the Code as a court situate beyond the limits of A BritISb India which had no authority in British India and was not established or continued by the Central Government.

After the amendment of the Code of Civil Proceduro in 1951, 'foreign court' under the Coue means a court situat< outs1ue India and not established or continued by the authority of the Central Government.

Whether we take the earlier definition or the present definition the Baokura Court could not be consider<d as a foreign court within the meaning of that expression in the B Code. 'Foreign judgment' is defined as the 'judgmenr of a foreign court'.

Hence the decree under execution could not be considered as a foreign decree for the purpose of the Code. (820 D-GJ

Accordingly the judgment-debtors could not take advantage of the provision in s. 13(b) of the Code under which the ex-parte decree of a foreign court is not conclu ive.

Nor could they . take advantage of s. 13 ( d). They were served with notice of suit but did not choose to appear before the court. Hence, there was no basis for the contention that any principle of natural justice has been contravened.

Further s. 13 ( d) was not applicable because the juc!gment in question was not a foreign judgment. [821 DJ

(b) Under Private International Law a decree passed by a foreign court to whose juri diction a judgment-debtor had not submitted is an absolute nuliity only if the local legislature had not conferred jur.sdiction . on th1--domestic courts over the foreigners either generally or in specified circumstances. Cb use ( c) of s. 20 of the Code provides that subject to the limitations mentioned in the earlier sect:ons of the Code a suit can be instituted in a court within the lo'al limits of whose jurisdiction the cause of action wholly or in part, arises.

This provision confers jurisdic tion on a court in lndi? over foreigners when the cause of action arises within its jurisd.ction.

There was not dispute in the present case that the cause of action for the suit which led up to the decree under execution arose within the jurisdict on of the Bankura Court.

Hence, tt must be held that the suit in question was properly instituted. Accor"'"gly the decree n question was a va 1id decree though it migit not have been executable at one stage in courts in the former Indian States [822 B-F)

Sardar Gurdyal Singh v. The Rajah of Faridkot, 21 I.A. 171, referred to.

(c) A combined reading of ss. 2(121, 38, 39 and 40 of the Code shows that a decree can be transferred for execution only to a court to which the Code applie . This is what was rulod by this Court in Hansraj Nathu Ram's case.

But by the date the transfer in the present case was . made, the Code had been extended to the whole of India.

It followed that the transfer of the decree in question which was not a foreign decree, to the Morena Court, was in accordance with !lie provisions of the Code.·

[823 B-D).

Hansraj Nathu Ram v. La/ii Raja & Sons of Bankura, [19631 2 S.C.R. 619, applied.

Ncrsingh Rao Shitole v. Shri Shankar Saran & Ors., [1963] 2 S.C.R. 577, distinguished.

(d) Section 20(1) (b) of the Code of Civil Procedure Amenament Act, 1951 by which the Code was extended to Madhya Bharat and other areas undoubtedly protects the right acquired and privileges accrued under the law repealed by the amending Act. But even bv straining the language of the provis on it cannot be said that the non-executabi'ity of •he ciecree

within a particular territory can be considered a 'privilege' [824 E-F]

LALJI RAJA v. FlR.M HANSll.AiJ 817

Nor is it a 'right accrued' within the meaning of s. 20(1) (b) of the Code of Civil Procedure (Amendment) Act; 1'950. In the first place in order to get the benefit of this provision the non-executab lity of the decree must be a right, and secondly it must'lle a right that had accrued from the provisions of the repealed law. It was difficJlt to coJcider the

no~-executability of the decree in Madhya Bfll\rat as a vested right of the judgment debtors.

The non-executability in question pertain•d to the juris<Lction of certain courts and not to the rights of the judgment debtors.

Further the relevant provision of the Code . of Civil Prooedure in force in Madhya Bharat did not confer th~ right claimed ov the judgment-debtors. All that had haopened fo view of the extens:on of be

Code to the whole of India in 1951 was that the decrees which could have been executed only by courts in Britis1' IQ11iq were made executable in the whole of India.

The change made was one relating to procedure and juri diction.

By the extension of the Code' to Madhya Bharat, want of jurisdiction on the part of the Morena Court was remedied and that court was now• competent to execute the decree [825 A-El

Hamilton Gell v. White [1922] 2 K.B. 422, Abbot v. Minisur for Lands, [1895) A.C. 425 and G. Ogden Induitries Pvt. Ltd. v. Lucas, [1969) I All E.R. 121, applied.

(ii) The execution was also not barred by s. 48 of the Code.

For considering the true impact of cl. (b) of sub0s. 2 of s. 48 of the Code

provisions of Arts. 181 am~ 182 of the Limitation Act, 1908 have also to be taken into consderation.

These provision~. clearly go to irdicate that the period prescribed under s. 48 (I) of the Code is a oerio1 of Iim'.tation.

This interpretation is strengthened by_ tbe S'Jbsequent history of the legislation.

By the Limitatio.n Act, 1%3 s. 48 of the Cod' is delctd.

Its olac" h" not been taken by Af. t36 of the Vm; tation Act of 1963 The High Courts also are now .unanimous that s. 48 of tl>e rode is controlled by the provisions of the Limitation Act, 1908. [828 A-CJ

Kandaswami Pillai v. Kmn4oDa Chetty, A.LR. 1952 Mad. 186 (F.B.), Durg v. Poncham, I.L.R. [1939] All. 647, Sitaram v. Chunnilalsa, I.L.R. [1944] Nag. 250, Amarendra v. Manindra, A.I.R. 1955 Cal. 269, Kris/ma Chwdra v Paravatammo, A.l.R. 1953 Orissa 13 and Ramgopa/ v. Sldram,

A.LR. 1943 Born. 164 referred to.

Per Jaganmohan Reddy, J.-(Concurring) No question of a vested right or privilege arose to entitle the respondent to challenge execufon proceedings in Morena Court. The decree granted by the Bankura Court was executable by the Courts governed by the sai:ne Code, by t'i, Court which passed it or by the Court to which it , was transf,, red.

Once the Code was made applicable to the whole of India by Amendment Act II of 1951 the decree was no loner a foreign d, ecree aua the Morena Court which was a court under the Code to which the Bankura Court could transfer the decree for execution. No doubt in Shitole's case it was ob served that s. 13 nf the Code creates substantive ri2hts and nnt merely procedural and therefore defences that were open to the resooi.dent• were not taken away bv any constitutional changes, but the ratic of the decision was that the Gwalior Court not bein~ a court that n8'•ed the d cree after the comin~ into force of Act TJ of 1951 the Allaha"ad r'ott'1 could not execute it. The imnediment did not exist nnw in t1'at the RRnkura Court had t•an<forred the decree to a COtllrt under t1'o r'nde. The olea that s. 48 r; vil l>•ocedure Code presents' a bar Of limitation was also not tenable. [831 E-H]

818 SUPRllMt: GOU.RT REPORTS

[1971] 3 S.C.R

discussed.

CIVIL APPELLA"IE Ju1ushicnoN : Civil Appeal No. 2427 0of 1966.

Appeal by special leave from the judgment and order dated August 27, 1964 of the Madhya Pradesh High Court in Misc.

Appeal No. 20 of 1964.

S. C. Majumdar and R. K. Jain, for the appellant.

W. S. Bar/ingay, Ramesh Mali and Ganpat Rai, for the

respont.

The Judgment ot.S. M. S!KRI, C.J., G. K. MITTER, K. S.

HEGDE and v. BHARGAVA, JJ. was delivered by HEGDE, J.

JAGANMOHAN REDDY, J. gave a separate Opinion: Hegde, J.

This is an execution appeal. The decree-holders are the appelbnts here.in.

This case has a long and chequered history.

The decree-holders obtained a decree against the respondents in the court of Sub-Judge, Bankura (West Bengal) for a sum of over Rs. 12,000/-, on December 3, 1949. On March 28, 1950 they applied to the court which passed the decree to transfer the decree together with a certificate of non-satisfaction to the court at Morena in the then Madhya Bharat State for execution.

It was ordered accordingly.

The execution proceedings commenced in the courf of Additional District Judge at Morena on Sep'ember 21, 1950 (Money Execution Case No. 8 of 1950).

The judgment-debtors resisted !he execution on the ground that the court had no jurisdiction to execute the same as the decree was that of a foreigu. court and that the same had been passed exparte.

The court accepted that contention and dismissed the execution petition on December 29, 1950.

On April 1, 1951 the Code of Civil Procedure (Amendment) Act, (Act II of 1951) came into force.

As a result of that the Code of Civil Procedure (in short the 'Code') was extended to the former State of Madhya Bharat as well as as to various other places.

Meanwhile the decree-holders appealed against the order of the learned Additional District Judge, Morena dismissing the execution petition, to the High Court of Madhya Pradesh.

The Madhya Pradesh

Hih Court allowed their appeal.

As against that the judgmentdebtors appealed to this Court. This Court allowed the appeal of the judgment-debtors and restored the order of the learned Ad<iitional Disfrict Judge, Morena.

The decision 0of this Court is reported in Hanvraj Nathu Ram v.

Lalji Raj~ and sons of Bankura (1). Therein this Court ruled that the transfer ordered by

F -.

LALJI RAJA v. FIRM HANSRAJ tHegde, J.) 819

the Bankura court was without jurisdiction as on that date 'the Code' did not apply to the Morena court This Court he1d that Morena court not being a court to which the Code: appJ, ed, the decree could not have been transferred to it. lt mrther he.d that ss. 38 and 39 of 'the Code' did not afford jurisdiction for such a transfer.

It may be noted that at the time the Bankura Court ordered the transfor of the decree, the Morena court was governed by the Indian Code of Civil Procedure as adapted by the Madhya Bharat Adaptation Order, 1948.

In other word> it was governed by a law passed by the then Madhya Bharat State.

In lhe course of its judgment this Court observed that unqer 'the Code' "a decree can be .executed by !\ court which passed the decree or to which it was transferred for executiQn and the decree which could be transferred has to be a decree passed under the Code and the court to which it could be transferred has to be a court which was governed by the Indian Code -0f Civil Procejure".

The first stage of the execution proceedings came to an end by the decision 0f this Court rendere<i on April 30, 1962.

On February 15, 1963, the decree-holders filed a.nother execution case before the Bankura court.

Therein they prayed for the transfer of the decree again to the Morena court for execution.

As noticed earlier, by that time 'the Code' had been extended to the Madhya Bharat State which had become a part of the State of Madhya Pradesh.

The Bankura court again or 'ered the •nns. fer of the decree to the Morena court.

The executfon proceedings were started afresh in the Morena caurt on Au-ust 31, 1963

(Execution Case No. 1 of 1963).

The judgment-debt'rs resisted the execution on various grounds viz. (a) that it i5 barre'.! by res-judicata in view of the decision of this Court referretl to ear lier; (b) that it is barred bys. 48 of 'the Code'; (c) tht it is barred by limitation; and ( d) that the decree is not executable as it is a decree of a foreign court.

. The learne? Additional District Judge rejected the objections ra1sei by the Judgment-debtors.

The judomen•-debtors app!aled against that order to the High Court of Madhva Pradesh.

T'1e Hi 0 h Court agreed with the executing court that the execution petition is neither barred by res-judicata nor bv s. 48 of '•he Code', nor is there anv bar of limitation but ii disaereed with that court and held that the decree was not e-.ecutab'e a~ tlie court which pased the decree was a foreign cur'. In arrivin~ at that conc!mmn it puroorted to rely on the decision of this Court in Raj Rajen'1ra Sardrzr Malnji Narsinf!h Rri,.., s~;,,, z. v.

Sri Sh,, nkar Saran ant/ Or<. (1).

Aggievet.I bv •h'lt dPcision. the

deree-holders have brought this appeal by special leave.

From the contentions advanced before us, two questions arise

820 SUPRE!\l, E COURT REPORTS

for decision.

They are ( 1) whether the decree under execution is not executable by courts situate in the area comprised in the former State of Madhya Bharat and ( 2) whether the decree is barred by s. 48 of 'the Code'.

The contention of the judgment-debtors is that the decree under execution being a .decree of a foreign court is a nullity qua the courts in the former State of Madhya Bharat and there.fore the same is not executable in the Morena court.

According to the decree-holders the decree in question is 110t a decree. of a foreign court as contemplated 'by 'the Code' an.d the court to which the decree is transie.rred for execution namely the Morena court is a 'court' as contemplated by ss. 38 and 39 of 'the Code' and therefore there can. be no valid objection to its execution in the Morena court.

Before referfi.ng to the decided cases on the point it is necessary to !'ead the relevant provisions of 'the Code' as the execution is sought in accordance with the provisions therein.

'Foreigp Court' is defined in s. 2(5) of 'the Code'.

That 0 definition as it stoocl on , he date the dectee under execution was passed read thus :

" "foreiqn court" means a Court situate beyond the limits of British India which has no authority in British India and is not estab.ished or continued by the Central Government." E

A new definition of 'foreign court" was substituted by the Code of Civil Prcedure (Amendment) Act II of 1951. That definition reads :

" "foreign coiirt" means a court situate outside Ind; a and not estab'ished or continued by the authority of the F Central Govennment".

Whether we take tlie earlier definition or the preser:.t definition into consideration the Rankura coum. cannot be considered as a "foreign court" wi•hin the meanipg of that expression in 'the Code'.

Fo•einojudgment' is defined in 'the Code' as the judgment of 'a foreign cou11t'. (~. 2(6) of 'the Code').

Hence the G decree under execution cannot be considered as a foreign decree for the purpose of the Code.

Secticl'l J 3 of 'the Code' provides that "A foreign judgment shall be conclusive as to any matter thereby directly adjudicated uoon between the sam~ parties or between parties under whom they or any of them c.laim litigating under the same title except H

(b) where it has not been given on the merits of the case."

LALJI RAJA v. FIRM HANSRAJ (Hegde, I.) 82!

The judgment with which we are concerned in this case was an ex-par1e judgment.

The Bankura court had no jurisdiction over the judgment-oebtors.

The Judgment-debtors did not submit themse1ves to the jurisdiction of that court though they were served with a notice of the suit.

Hence if the BaiJrnra court can be CQnSidered as a foreign court then s. 13 (b) would have come to the rescue of the Judgment-deb•ors and it would have enabled them to p.ead that the judgme.nt in question was not conclusive and consequent.y the decree is not binding agamst them.

But as the judgmeint in question cannot be considered as a judgment of a fore.gn court, they can take no assistance from s. 13 ( b). But arnstance was sought to be taken from s. Ll ( d) which says that the foreign judgments are not conclusive ''where the proceedings in which the judgment was obtained are opposed to natural justice". It was urged oo behalf of the judgmentdebtors that as the decree under execution was an ex-parte decree, we must hold that the proceedings in which the judgment was obtained were opposed to natural justice. We are unable to accede to this contention.

As mentioned earlier, the judgment-debtors were served with the ilJIOtice of the suit.

They did not choose to appear before .the court.

Hence there is no basis for the contention that any principle of natural justice had beer; contravened. Further as held earlier the i udgment in question is not a forei~ judgment.

Reliance was placed on Private International Law in support of the contention that in a personal action, a decree pronounced in absentem by a foreig\ll court, to the jurisdiction oi which the defendant had not in any way submitted himself is an absolu:e nu lity. It was urged that the Bankura court had no jurisdiction over the judgment-debtors and therefore the decree pas; ed bei.ng one ponoun.ced in absentc111 h a nullity. In support of this contentmn reltance was placed on the decision of the Judicial Committee iL'l Sirdar Gurdva/ Sinh v.

The Rajah of Faridkote(').

Therein the Judicial Committee observed:.

"In a personal action, to which none of these causes of jurisdicti?n aoply, a decree pronounced in

abentem bv a foreign Court, to the jurisdiction of which. the efendat has not in any way submitted himself, 1s by mternatmnal law an absolute nullity."

But the Board qualified those observations by the fol'owing words:

".He is under no obligation of anv kind to obey it; and 1t must be regarded as a mere nullity by the Courts (t). 21 J.A. 171.

of every nation except (when authorised by special local legislation) in the country of the forum by which it was pmnounced."

The above remarks of the Board indicate that even a decree which is pronounced in absentem by a foreign court is va id and executable in the country of the forum by which it was pronounced when authorised by special local legislation.

A decree passed by a foreign court to whose jurisdiction a judgment-debtor had not submitted is an absolute nu.lity only if the local legislature had not conferred upon jurisdiction on the domestictourts over the foreigners either generally or under specified circumstance>.

Section 20 ( c) of 'the Code' confers jurisdiction on a court in India over the foreigners if the cause of action arises within the jurisdiction of that court.

Hence the observation of the Board quo:ed in some of the decisions of the courts in India including the decision of this Court in Shitole's case(') that such a decree is an 'absolute nullity' may not be apposite. It may be more appropriate to say that the decree i.n ques'ion is not executable in courts outside this country. The board itself had noticed that this rule of Private International law is subject to special local legislation.

Clause ( c) of s. 20 of 'the Code' provided at the relevant time and still provides that subject to the limitations mentioned in the earl; er sections of 'the Code', a suit can be instituted in a court within the local limits of whose jurisdiction the cause of action. wholly or in part, arises.

There is no dispute in this case that the cause of action for the suit which led up to the decree under execu'ion arose within the jurisdiction of Bankura court.

Hence it must be held that the suit in question was a proper'y insti'uted suit.

From that it fol'ows that the decree in question is a valid decree though it miht not have been executable at one stage in courts in the former Indian States.

This takes us to ss. 38 and 39 o.f 'the Code'.

Section 38 provides that a decree may be execu'ed either bv the c0urt which passed it, Of by the court to which it is sent foi execution. Sec tion 39(1) to the extent it is material for our present purpose prescribes :

"The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court-

( a) if the person a!lainst whom the decree is passed actually and voluntarily resides or carries on busmess, or personallv work; s. for gain within the local .limits of the jurisdiction of such other Court ..... ·"

(1) [1963) 2 S.C.R. 577.

F ·-

G -.

LALJI RAJA v. FIRM HANSRAJ (Hegde, J.) '823

Section 40 prescribes :

"Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State." Ru'es are defined in s. 2 ( 12) as meaning Rules and Form; .:ontained in the 1st Schedule or made 1mdcr s .. 122 or s. 125 of 'the Code'.

On a combined reading of ss. 2(12), 33, 39 and 40, it follows that a decree can be transferred for execution only to a court to which 'the Code' applies.

This is what was ruled by this Court in Hansraj Nathu Ram v. Lalji Raja and som

of Bankura(1).

But by the date the impugned .transfer was made, 'the Code' had been extended to the whole of India.

In fact the court to which the decree was transferred is now an entirely new court in the eye of the law-see the decision of this Court in Shitole's case(').

From the foregoing discussion, it follows that the decree under execution is not a foreign decree and its transfer to the Morena court is in accordance with the provisions of 'the Code'.

That being so, the decree under execution satisfies the dictum of this Court in Hansraj Na•hu Ram v. Laiji Raja and sons( 1) that "a decree can be executed by a court which passed the decree or to which it was transferred for execu'.ion and the decree wh'ch could be transferred has ito be a decree passed under the Code and the Court to which it cou\1 be transferred has to be a Court which was governed by the Indian Code of Civil Procedure."

It was next urged on behalf of the judgment-debtor that in view of the decision of this Court in Shit,, le's cave (supra) we must hold that the decree is a nullity and that it cannot be exe- .:uted at all in the courts situate in the former State of Madhya Bharat.

In Shitole's case ( sunra) this Court was called upon to consider a converse case.

Therein the decree under execution was one pased l:>v a court in Gwalior State in a suit instituted in May 194 7. The defe"dqnt~ were 1he re<idents of U.P.

They did not appeal before the Gwalior court though served with the notice.

An ex-parte decree was pa••ed against them in November, 1948. On September, 1951, the Gwalior court transferred the decree for execution to Allahabad and on October 16. 1951, the rlecree-holder file<f an annlica•ion for execution of the decree bfore the AHah•bad Court. The iudgmentdeblors contende~ thqt the decree beinq a clecree of forei1m court to whme iurisdic'i"''l thev had not submitted, was a nullitv and the execution aoo1ication in reonect thereof was n<Jt malnta; nah!e.

That contentinn w•~ accented by this 'court.

Tt mav be noted that the Gwalior Court was not a court consti'uted under the

(0 !1963] 2 S.C.R. 619.

(2)(1963] 2 S.C.R. 577.

provisions of 'the Code'. It was admittedly a foreign court for the purpos.:: of any proceedimgs under 'lhe Code'.

The ratio of that decision is wholly inapplicab.e to the present case.

The question whether a decree is a foreign decree or whether it can be transferred to another court for execution has to be 1udged by the provisions of 'the Code'.

It was next contended that in view of s. 20 cl. (b) of 'the Code' of Civil Procedure (Amendment) Act, 1951 by which the Code is extneded to Madhya Bharat and other areas, the 1udgment-debtors' right to resist the execution of the decree is protected.

Section 20 (1) of the Act deals with Repeals ana Savings.

That section to the extent relevant for our present purpose reads:

"If, immediately before the date on which .he ;; tid Code comes into force in any part B State corresponding to the said Code, that law shall on that date &I.and repea'ed.

Provided that the repeal shall not affoct-

(b) any right, privilege, ob'igation or liability

aquired, accrued or incurred under any law so i:epe~-

ea . . . . . . . . . . . . . . . . . . .......... -. . . . . .. as 1f this Act had not been passed."

This provisions undoubtedly protects the rights acquired and privileges accrued under the law repealed by' the amendmg Act.

Thererore . the question for decision is whether the non-.executability of the decree in the MJrena court under the law m torce in Madhya Bharat before the extension o.f 'the Code' cnn b~ said to be a right accrued under the repea!ed law.

We do not think that even by s:raining the language of the provision it can be said that the non-executabi, ity of a decree wi.hin a particular territory can be cnsidered as a privilege.

Therefore tne only ques:.ion that we have to consider is whether it can be comidered as a 'right accrued' within the meaning of s. 20 (1 )(b) of the Code of Civil Procedure (Amendment) Act, 1950. In the flrst place, in order to get the benefit of that provision, the non-executability of the decree must be a right_ Pnd secondly it must be a right that had accrued from the provisions of the repealed law.

It is contended on behalf of the judgment-debtors that when the decree was passed, they had a right to resist the execu<ion of the decree in Madhya Bharat in view of the provisions of the Indian Code of Civil Procedure (as adaptep) which was in forct. in the Madhya Bharat at that time and th~ same is a vested ri5ht. It was further urged on their behalf that that right was preserved by s. 20 ( 1 )(b) of the Code of Civil Procedure Amendment Act,

:- B

LALJI RAJA v. FIRM HANSRAJ (Hegde, /.) 825

1950. It is difficult to consider the non-executability of the decree in Madhya Bharat as a vested right of the judgmentdebtors.

The non-executability in question pertains to the jurisdiction Qf certain courts and not to the rights of the 1udgmentdebtors.

Further the relevant provisions of the Civil Procedure Code in force in Madhya Bharat did not cinfor the right claimed by the judgment-debtors.

All that has happened in view of the extension of 'the Code' to the whole of India in 1951 1s th8t the decree which could have been executed only by courts in British India are iflOW made executable in the whole of India.

The change made is one relating to procedure and iurisdiction. Even before '!he Code'. was extended to Madhya Bharat the decree in question could have been executed either against the person of the judgment-debtors if they had happened lo come to British India or aganst any of their properties situate in British India.

The execution of the decree within the State of Madhya Bharat was not permissible because the arm of 'the Code' did not reach Madhya Bharat.

It was the invalidity of the order transferring the decree to the Morena court that stood in the way of the decree-holders in executing their decree in that court on the earlier occasion and not because of anv vested rights of the judgment-debtors. Even if the judgment-debtors had 111ot

objected to the execution of the decree, the same could not have been executed by the court at Morena on the previous occasion as that court was not prooorly seized of the execution proceedings.

By the extension of 'the Code' to Madhya Bharat, want of jurisdiction on the part of the Morena court was remedied and that court is now made competent to execute the decree.

That a provision to preserve the right accrued under a repealed Act "was not intended to preserve the abstract rights conferred by the repealed Act. ... It only applies to specific rights given to an individual upon happening of one or the other of the events specified in statute"-see Lord Atkin's observations in Hami!ton Gell v. White( 1). The mere right. existing a• the date

of repealing statute, to take advantage of provisions of the statute repealed is not a "right accrued" wi'hin the meaning of the usual saving clause-see Abbot v. Minister for Landy(") and G. Ogden Industries Pty. Ltd. v. Lucas(3 ).

From what has been said above, it fo11ows that the view taken bv the Hih Court that the decree' in question is a nullitv qua the Morena court cannot be acceuted as correct.

The decree in question is neither a 'foreign decree' as contemnla'ed by 'the Code' nor its transfer to the Morena court impermisible under 'the Code'.

Bv the provisions of 'the Code' the Morena court is re-

0) [1922] 2 K.B. 427.

(2) [1895] A.C. 425.

(3) [1969] I All E. Report 121.

quired to proceed with the execution unless there is any valid objection.

We now come to the question whether the execution is barred bys. 48 of 'the Code'. (That section was repealed :n 1963).

Both the executing court .as well as the High Court have taken the view that on the facts of this case, the limitation prescribed in s. 48 of 'the Code' is extended under s. 14.(2) of the Limitation Act, 1908. Both those courts have concurrently come to the conclusion that the previous execution proceedings had been prosecuted by the decree-holders with due diligeince .and with good faith and the same became .infructuous in view of the fact that the Morena court had no jurisdiction to proceed with the execution.

The finding that th!' previousexecution proceedings were .:arried on with due diligence and good faith and that the same became infructuous for wa11.t of jurisdiction on the part of the Morena court was not challenged before us.

But it was urged on behalf of the judgment-debtors that s. 48 prescribed a bar and not a period of limitation and .consequently the decree-holders cannot take the benefit of s. 14(2) of the Limitation Act.

It is necessary to examine the correctness of this contention.

Section 48 read thus :

"(1) Where an application to execute a decree not beiing a decree granting an injunction has been made,

no order for the execution of the s; i, me decree shall be E made upon any fresh application presented after the expiration of 12 years from-

(a) the date of the decree sought to be executed or

(b) where the decree or any subsequent order directs any payment of money or the delivery . of any F property to be made at a certain date or at recurring periods, the date of .the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed-

( a) to preclude the Court from ordering the execution of a decree upon an application presented after th"e expiration of the said term of twelve years, where the judgment-deb\or has, by fraud or force, prevented the execution of the decree at some time wi•hin twelve years immediately before the date of the application; or

(b) to Fmit o• otherwise affect the operation of article 183 of the First Schedule to the Indian Limitation Act, 1908".

LALJI RAJA v. FIRM HANSRAJ (He, de, J.) 827

A Art. 183 of the Indian Limitation Act, 1908.read thus:

"D!SCription of application.

Period of Limitation

To enforce a judgment, decree Twe1eve years or order of any Court established by Roy1l Charter in the exercise of its ordinary origi,1al civil j 'Jrisdiction or an order of the Supreme Court.

Time from which period begins to run.

Wlien a present right to en~ force the judgment, decrce or order accrues to some person capable of relel'lsing the right.

Provided that when the judgment, decree or order has been revived, or some part of the principle money secured thereby or some in~ terest on such money has been paid, or some acknowledgment of Ille right thereto basbeen given in writing signed by the person liable to pay such principal or interest or his agent, to tbe Pohon entitled thereto or his agent, the twelve years shall be computed from the date of such reviver, pay .. meot or acknowledgment or the latest of such revivors priyments or acknowledgments, as the case may be.

At this stage it is also necessary to read Art. 181 "of the Lllnitation Act of 1908. That Art prescribed that an application for which no period of limitation is provided elsewhere m the Sch. to the Limitation Act, 1908 or by s. 48 of the Code, the period of Limitation is three years and that period begins to run when the right to apply accrues.

Art. 182 of that Act provided that for the execution of a decree or order of any Civil Court not provided for l:>y afticle 183 or bys. 48 of 'the Code', the periQlf of lllnitation is three years or where a certified copy of the decree or order has been registered-six years.

The time from which the period was to run is set out in the 3rd column of the Sch.

The argumen, advanced on behalf of the judgment-debtors is that s. 48 is a self-contained s:;<>de and the period prescribed therein is a bar and not a period of limitation and hence the decree-holders cannot take the benefit of s. 14(2). In support of this argument reliance is placed on sub-s. 2 (a) of s. 48 of 'the Code'.

That sub-section undoubtedly lends some support to the contention of the judgment-debtors. It indicates as to when the period pr(\scribed under s. 48 (1) can be extended.

By implication it can be urged that the period prescribed under s. 48 ( 1) of the Code can only be extended under the circumstances mentioned in that clause and not otherwise.

But in assessing the correctness of that contntion we have to take into consideration cl. (b) A of sub-s. (2) of s. 48 of the Code' as well as Arts. 181 and 182 of the Limitation Act, 1908.

These provisions clearly go to indicate that the period prescribed under s. 48( 1) of 'the Code' is a period of limitation.

This conclusion of ours is strengthened by the subsequent history of the legislation.

By the Limitation .t< Act 1963, s. 48 of 'the C.;>de' is deleted.

Its place has now been B taken by Art. 136 of the Limitation Act of 1963.

At one stage, there was considerable conflict of judicial opinion as to whether s. 48 is controlled by the provisions of the Limitation Act 1908.

But the High Courts which had earlier taken the view that s. 48 prescribes a bar and not limitation have now revised their opinion.

The opinion amongst the High Courts is now unanimous that s. 48 of 'the Code' is controlled by the provisions of the Limitation Act, 1908-see Kandaswami Pillai

v. Kamappa Chett; r(1); Dirg v. Pancham(')'; Sitaram v. Chun, nilal>a( 3 ); Amarendra v.

Manindra('j; Krishna Chandra v.

Paravatamma('); -and Ramgopal v. Sidram(").

We are of the opinion that the ratio of the above decisions correctly lays down the law.

That apart, it would not be appropriate to unsettle the settled position in law.

For the rasons mentioned above this appeal is allowed and the order of the High Court is set aside and that of the trial court restored.

The executing court is directed to proceed with the execution. The respondents shall pav 1he costs of the appellants both in this Court as well as in the High Court.

P. Jaganmohan Reddy, J.

I agree with my learned

brother Hedge J., that the Appeal should be al!owed.

In the F case of Kishendas v.

Inda Carnatic /Jank Lrd.(') I had whi'e delivering the Judgment of the Bench expressed certain views which may appear to conflict with the view now taken.

In that case the executability of a decree passed by the Madras High Court in 1940 by the City Civil Court Hyderabad on the ground of its binQ a foreiQtJ decree was called in question. The Respondent G went into linnid"tion ""d a liquidator was aopointed by the original side of Madras High Court. The liquidator filed an appli- ,. cation under Sec. 191 of the Indian Companies Ac• for the recoverv of g sum of Rs. 1375 from the Aopellant whci was a subject of H.E.H the Nizam and a resident of Hyderabad on account

(1) A.LR. 19'7 M, d.1"6 (F.B.).

(2) T.L.R. [10101 All.''' H

(3) I.LR. [19•4] N°g.250.

(4) A.•.R. 1955 Col. 269.

(5) A.J.R. 1953 Orissa 13.

(6) <\.l.R. 1943 Born. 164.

(7) A.I.R. 1958 A.P. 407.

LALJI RAJA v. FIRM HANSRAJ (Jaganmohan Reddy,/.) 829

of unpaid calls and the Court passed an ex-parte decree on 15-8-19+0 against the appellant.

Tne , iquidator fielj an execution petition in that Court praying for a transfor of the decree to the City Civil Court Hyderabad which was ordered on 15-3-1951 when the Hyderabad Civil Procedure Code was in force in the Hyderabad Sta~~. under which the decree of the Madras High Court would be a foreign decree and the only way in which the liquidator could recover the decreetal amount was by filing a suit on that decree.

No doubt the Madras High Court could not on that date i.e. 15-3-1951 pass an order directing the transfer of the decree as it was to a Court which was not govrned by the Indian Civil Procedure Code (hereinafter called the Code) nor on that date were there any reciprocal arrangements for executing those decrees in the Hyderbad State. Madras High Court could not therefore transfer a decre~ passed by it for execution to a Court which did not satisfy the provisions of Sections 43 to 45 on that date. It did not also appear from the facts of that case whe.her any notice was served on the appellant but follwing the decision of the m'j1rilv of the High C.1urts in :his count')'

and also relying on the observations of their Lordships of the Privy Council in Sardar Gur1ayal Singh v. R1ja of Faridko•a(1) that a decree pronounced iirl absentum by a foreign Cou•t the Jurisdiction to which. the defendant has not in any way submitted himself is by international law a nullity, I also took the view that the non-executability of the decree is to be cktermined as on the date on which it was passed and that no distinction can conceivably be made between the decree passed by British Indian Courts before the merger or before the Independence when it was a foreign decree and a decree passed by th~ Courts of a n•tive State before the Tndependnce or merger in both cases the character of the Judgment would be that of a foreign Judgment and if it suffers from snv want of jurisdiction or otherwise it will con

tinue to be subject to that defect. This Court had also expressed a similar view in Raj Rajendra Sardar Malaji Marsinh Rao Shito/e v. Sri Shankqr Saran & Ors. ( 2 ) when it held that an ex nnr•e clecree nassec1 in 1948 by the Gwalior Court against residents of U.P. who did not apoear was not execu•able in Allahabad even thouoh the Gwalior Court had transfe'Te'1 the decree in October 1957 af•er the Civil Proce'1ure Ame11dment

Act TT of 19~1 cnme in•o force af•er which the GwoJior C<'urt was a Court unrler the Cnde.

It was hel<l bv a majoritv that th~ decree passed bv tl->P. Gwalior Court did not change its na•ion•lity in spite of snhseouent C"mti'utiona1 chanQes or amen'1men•s in

the ('Nie of Civil Procerlure. that if a decree was unenforceah'o~ in

<1 narticnlar Court "t the time it was passed it wulcl n0t bec0me enforceable and valid simply because of the political changes that

(!) 21 I.A. 171.

(2) [1963]2 S.C.R. 577.

took place unless there is a specific provision to the contrary and A tbat the decree being a nullity outside the. Courts of the United States (Madhya Bharat) in the absence of any specific provision it could not be enforced in the United States (Madhya Bharat).

Kapur J., speaking for himself, Rajagopala Ayyangar and Mud-

Jolker JJ., observed at pages 594-595 thus:-

"It will not be correct to say that the decree which was a nullity before the Constitution came into force suffered only from the defect of enforcibility by execution. Sec. 13 creates substantive rights and is not merely procedural and. therefore defences which were open to the Respondents were not taken away by any Constitutional changes in the absence of a specific provision to the contrary. lt is erroneous to say therefore that the decree of the Gwalior Court was unenforceable when passed because .of some impediment which the subsequent Constitutional changes had removed; but thaf decree suffered from a more fundamental defect of being a nullity and the rights and liabilities created under it remaiped unaffected by subsequent changes".

The contention that the decree of the Gwalior Court could be executed after its transfer on September 14, 1951 when the Civil Procedure Code came into force throughout India by virtue of Act II of 19 51 and that therefore the Gwalior Court had the power to transfer the decree which the Allahabad Court had under the law authority to execute was also negatived for the reason that the "Court which mad<? the order of transfer in September 1951 was then not the Court which passed the decree within the meaning, of Sec. 39". Das Gupta J., with whom Sarkar

J., as lie then was, concurred, did not find it necessary to deal with the question of foreign decree which as he said the Allaha- F bad Court rightly considered a nullity. On the second and third question he held that Allahabad had no power to execute the dej::'ree under Sec. 38 of the Civil Procedure Code ll!i. there was no valid transfer to it from the Court which passed the decree nor did Section 43 of the Civil Procedure Code as it stood applied to the execution of that decree.

Even though the observations in Kishendas's case find support in the above Judgment the ratio of the decision in that case being that thi; Madras Court on the date of the order could not transfer the decree 1:0 the Hyderabad Court, the facts of th~ case however do not warrant an application of the principles of international law or of the.decree being a nullity. The earlier execution proceedings ended unsuccessfullv wijh the decision in Hamra; Nathu Ram

v. Lalii Raia & Sons of Bankura(1).

It was decided in that case,

(I) [l963J2 S.C.R. 619.

LALJI RAJA v. FIRM HANSllAJ (Jaganmohan Reddy,!.) .831 I

that Morena Court not being a Court to which the Code applied the decree could not have been transferred and that Section 38 and 39 of the Code did not afford jurisdiction for such transfer as the Morena Court at the time of transfer was governed by the Madhya Bharat Civil Procedure Code and not by the Code. Wht

is relevant in the present case is that when the decree holder agam applied to the Bankura Court for execution of his decree by the Morena Court after the decision of this Court in Hansraj' s case, both the Court that passed the decree and the Court to which it is transferred for execuption were Courts under the Code, as such no question of the Bankura decree being a foreign decree or it being a nullity could arise. The Morena Court on the date when the order of transfer of the decree was passed by the Bankura Court is not a Court governed by the Gwalior law or Madhya Bharat law as such the impediment to executability of the Bankura decree no longer exists nor could it be considered in the light of Section 20(c) of the Amendment Act II of 1951 as having saved any right or privileges under the repealed procedure code of Gwalior or Madhya Bharat.

Whatever may be the views ex pressed in the several decisions a view which I was also inclined to take in the decision referred to, though on the facts of that case it may not have been necessary, on a further a fuller consideration I agree with great respect .with the views .of my learned brother Hegde, J., that no question of a vested right or a privilege arises to entitle the Respondent to challenge the execution proceedings in Morena Court.

The decree granted by Bank)ll'a Court was executable by the Courts governed by the same Code by the Court which passed it or by the Court to which ir is transferred.

Once the Code is made applicable to the whole of India by the Amendment Act II of 1951 the decree is no longer a foreign decree qua the Morena Court which is a Court under the Code to which the Bankura Court could transfer the decree for execution. No doubt in Shitole'.s case it was observed that Section 13. of the Code creates substantive rights and pot merely procedural and therefore defence that were open to die Respondents were not taken away by any Constitutional changes but the ratio of the decision was that the Gwalior Court not being a Court that pas&".-d the decree' after the coming into force of Act II of 1951 the Allahabad Court.could not execute it. That im pediment does not exist now in that the Bankura Court has transferr~ the de~ee to a Court under the Code.

The plea that Sectmn 48 CIVIi Procedure Code presents a bar of limitation is also not tenable. In the result I agree that the appeal should be allowe!l as directed by my learned brother.

G.C.

Appeal allOIJled.

9-Ll!OO Sup Cli7 l

LAUI RAJA & SONS

FIRM HANSRAJ NATHURAM

February 23, 1971

S. M. SIKRI, C.J.

G. K. MITTER

K. s. HEGDE, J.

REDDY

V. BHARGAVA, JJ.

Code of Civil Procedure

ss. 2(5), 2(12), 20, 38, 39, 40

Code of Civil Procedure

s. 20(1)

s. 20(1)(b)

Section 48

Sub-Judge, Bankura (West Bengal)

December 3, 1949

March

28, 1950

Morena

Madhya Bharat

December 29, 1950

April l, 1951

High Court of Madhya Pradesh

Addi. District Judge, Morena

In further appeal this Court restored the order of the Addi.

Fe'Jruary 15, 1963

Morena Court

s. 48

the Code of Civil Procedure

s. 48

Per Sikri

HELD: Per Sikri C.J., Mitter, Hyde and Bhargava JJ. (

Mitter

Hyde

Bhargava

s. 2(5)

Central Government

Code of Civil Proceduro in 1951

Baokura Court

s. 13(b)

s. 13

s. 13

s. 20

Bankura Court

Hansraj Nathu Ram

[1963] 2 S.C.R. 577

Section 20(1)

Code of Civil Procedure Amenament Act, 1951

s. 20(1)

the Code of Civil Procedure Amenament Act, 1951

the Code of Civil Procedure Amenament Act, 1951

the Code of Civil Procedure

Madhya Bharat

s. 48

s. 48

Arts. 181

Limitation Act, 1908

s. 48

s. 48

s. 48

Limitation Act, 1908

Jaganmohan Reddy

Shitole

s. 13

Gwalior Court

s. 48

CIVIL APPELLA"IE Ju1ushicnoN

CIVIL APPELLA"IE Ju1ushicnoN : Civil Appeal No.

S. C. Majumdar

S. C. Majumdar and R. K. Jain, for the appellant.

R. K. Jain

W. S. Bar

W. S. Bar/ingay, Ramesh Mali and Ganpat Rai, for the

respont.

Ramesh Mali

Ganpat Rai

S. M. S!KRI

K. S.

HEGDE

BHARGAVA

HEGDE

JAGANMOHAN REDDY

Hegde

March 28, 1950

Sep'ember 21, 1950

April 1, 1951

the Code of Civil Procedure

the Code of Civil Procedure

Madhya Pradesh

Hih Court

The Madhya Pradesh

Hih Court allowed their appeal.

Ad<iitional Disfrict Judge, Morena

ss. 38 and 39

Morena court

April 30, 1962

February 15, 1963

Bankura court

Madhya Bharat State

Madhya Pradesh

High Court of Madhva Pradesh

s. 48

s. 48

ss. 38 and 39

s. 2(5)

British India

s. 13

s. 13

abentem

Section 20

s. 20

ss. 38 and 39

Section 38

[1963) 2 S.C.R. 577

Section 40

s. 2

s. 125

ss. 2(12), 33, 39 and 40

Court which was governed by the Indian Code

Gwalior State

U.P.

Gwalior court

Allahabad

October 16. 1951

1963] 2 S.C.R. 619

(1963] 2 S.C.R. 577

s. 20

Section 20

s. 20

the Code of Civil Procedure

Madhya Bharat in view of the provisions of the Indian Code

s. 20

Madhya Bharat in view of the provisions of the Indian Code

Madhya Bharat in view of the provisions of the Indian Code

the Code of Civil Procedure

Further the relevant provisions of the Civil Procedure Code

Madhya Bharat

Atkin

s. 48

s. 14

Limitation Act, 1908

s. 48

s. 14(2)

Limitation Act

Section 48

article 183

First Schedule to the Indian Limitation Act, 1908

Art. 183

the First Schedule to the Indian Limitation Act, 1908

the First Schedule to the Indian Limitation Act, 1908

Indian Limitation Act, 1908

Art. 181

Limitation Act, 1908

s. 48

Art. 182

s. 48

s. 14(2)

s. 2

s. 48

s. 48

s. 48

s. 48

Arts. 181 and 182

Limitation Act, 1908

s. 48( 1)

s. 48

Art. 136

Limitation Act

s. 48

Limitation Act 1908

s. 48

s. 48

Limitation Act, 1908

P. Jaganmohan Reddy

Hedge

Madras High Court

Hyderabad

Sec. 191

H.E.H the Nizam

Hyderbad

Sections 43 to 45

Court which was not govrned by the Indian Civil Procedure Code

United States

Kapur

Rajagopala Ayyangar

Mud-

Jolker

Sec. 13

September 14, 1951

Allahabad Court

Sec. 39

Das Gupta

Sarkar

Sec. 38

Section 43

Kishendas

Madras Court

Hyderabad Court

Hamra

Morena Court not being a Court to which the Code

Section 38 and 39

Morena Court not being a Court to which the Code

Morena Court not being a Court to which the Code

Hansraj

Gwalior

Section 20(c)

Amendment Act II of 1951

Court was executable by the Courts governed by the same Code

Section 13

Allahabad Court.could

CIVIi Procedure Code


MAKHANLAL WAZA & ORS.

STATE OF JAMMU & KASHMIR & ORS.

Februaiy 23, 1971

[S. M. SJKRI, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER

AND P. JAGANMOHAN REDDY, JJ.J

Constitution of India, 1950, Ar~ .. 16--Janunu & Kashmir Civil Service (Classification Control & Appeals) Rules 1956, r. 25-Promotion of Teachers to the Gazetted cadre on the basis of "con1munal po/icy"- Communal policy struck down by courts as unconstitutional-Thereafter Govenment reverting f(!achers to nongazetted grade but giving sanze emo~

luments as in gazetted grade under different nomenclature-Also promot~ ing those not parties before the COUl'o to gazetted grade Oil the basis ofi communal po/icy-Promotions violative of Art. 16--Judgment-Law declared by court binding on State Governn1ent 1vith respect to those not parties before Court.

Teachers and other officers of the Education Department of the State of J ammu & Kashmir were govc'rned by the J ammu and Kashmir Civil Services (Classification, Control & Appeals) Rules, 1956.

According to r. 25 promotions to a service or class or to a selction category or to a grade in such se'rvice or class \Vere to -be n1adc on grounds of merit and ability.

Rule 19 provided for reservations to be made in favour of any backward class which in the opinion of the Government was not adeqnately represented in the services.

This rule was abrogated in 1958.

But in p'romoting teachers to the gazetted cadre respondents I and 2 adopted the following basis : (i) 50% of the vacancies were filled from among the Muslims of the entire State; (ii) 40% out of the remaining 5()% were filled by Jamvi Hindus of the province of Jammu and (iii) the remaining 10% were given to others including Kashmiri Pandits. This was purported to be done on the ground that the Muslims of the entire state and the Hindus of Jammu Province constituted "back\Vard class".

In December

1965. the present petitioners 2 and 4 filed a writ petition in this Court, and in Triloki Nath & Anr. v. State of Jammu & Kashmir, (1969] I S.C.R. 103, this Court held that in effect the basis of promotion was not of reservation of some posts; it was a sche1ne of distribution of all the posts community-wise and such distribution was contrary to ejie constitutional guarantee under Art. 16(1) & (2) and \\as not saved by cl. (4). The promotions granted to respondents 3 to 83 in that petition were declared Yoid, but it \Vas left open to the State to devise a scheme consistent with the constitutional guarantee for reservation of appointments to posts or promotions in favour of any backward class of citizens. No such scheme \Vas devised.

Instead those teachers 'vho were respondents in the previous \\Tit petition and \\'hose promotions became illegal \Vere ordered to be adjusted in a non-gazetted cadre.

They \Vere "allowed to work against 1he posts they v.; ere holding prior to the reversion" on temporary basis.

A new nomenclature was evolved for the post of 'Head Masters'; they were called 'Teachers-in-charge'. They were to get the same salary which they were getting when they were in the gazetted cadre. Ordinarily such a teacher could not have been appointed to that post being far junior to the petitioners according to the seniority list of the non-gazetted cadre to which he and. the petitioners belonged.

Again, the other respondentteachers who did not figure in the ea'rlier writ petition were all promoted

:i • c 'ti)li

,.,

to the gazetted cadre prior and subsequent'to the decision in Triloki Nath's case on the basis of the communal policy. The present tion was filed challenging the promotion of all the respondent-teachers as illegal and unconstitutional. Allowing the petition,

HELD : (i) Respondents 38 to 107 who were parties to the previous petition, were reverted to the non-gazetted grade but they were still retained in the posts which they were holding when they had been promoted in gazetted grade although in some cases the nomenclature was changed from 'Headmaster' to 'teacher-in-charge'. In the absence of any rules lawfully promulgated for employment of backward classes promo-_ tions could be made only in accordance with r. 25 and there was absolute non-compliance with the provisions of that rule. [839 CJ

(ii) The promotions of the respondents who were not parties to the previous petition were based not purely on J:ll(lrlt but were mtde on account of the communal policy which had been 'Struck down by this Court as unconstitutional. The judgment which was delivered did not inerely declare the promotions granted to the respondents in the Wl'it petition filed at the previous stage as unconstitutional, hut also laid down in clear and unequivocal terms that the distribution of appointments, posts or promotions made in implementation of the communal policy was contrary to the constitutional guarantee or Art. 16.

The law declared by this Court was binding on the respondent State aud its officrs aud they were bound to follow it whether a majority of the present •respondents were parties or not to the previous petition. [839 B; 837 HJ '

(iii) Therefore, the promotions made of all the re)pondent teachers were illegal and unconstitutional being violative of Art. 16 of the Constitution.

E Tri/oki Nath & Anr, v. S(ate of Jammu & Kashmir & Ors., [1969] 1 S.C.R. 103, M. R. Bc.laji & Ors. v. State of Mysore, [1963] Supp. 1 S.C.R. 439 aud T11loki Nath Tiku v. State of Jammu & Kashmir & Ors.,

[19671 2 S.C.R. 265.

ORIGINAL Ju&1smcnoN : Writ Petition No. 108 of 1969.

Petition under Art. 32 of the Constitution of Lndia for the enforcement of fundamental rights.

A. K. Sen and Naunit Lal, for the petitioners.

C. K. Daphtary, N. S. Bindra and R. N. Sachthey, for responde.nts Nos. 1 and 2.

0. C. Mathur and P. N. Tiwari, for respondents Nos. 7 to 9, 12, 13, 19 to 21, 27 to 29, 33, 34, 41, 47, 49, 57 to 59, 63, 64, 67, 68, 70, 110 to 113, 115, 117, 118, 121to124, 128, 130, 133, 134, 136, 142, 145, 146, 157, 164, 174, 182, 186, 198, 219, 232 to 236, 240, 245 to 250.

The Judgment of the Court was delivered by

Grover, J.-This petition under. Article 32 of the Constitution illustrates how an attempt has been made to circumvent

the law declared by this Court in Triloki Nath & A11other v. State A of /ammu & Kashmir & Others(') by which the Sfate policy of reserving 50%of the vacancies among the teachers in the employment of the respondent State for .'¢.e Muslims of Kashmir and out of the remaining 50%, 40% .for the Jamvi Hindus and 10% for others including Kashmiri Pandits was struck down as contrary to the constitutional guarantee under Art. 16.

The petitioners, who are 10 in number, are in the service of the Education Department of the State of Jammu & Kashmir.

Acc<Jrding to the petition, petitioner No. 1 joined service in 1952 as a teacher in the Government High School, Poonch. He had passed the Bachelor of Teaching Examination and was given the grade of Rs. 80-8-200. This grade which was of a non-gazetted post was later revised sometimes before 1964 to Rs. 150-· 500: The gazetted p()st carried a grade of Rs. 300-600. Petitioner No. 2 entered service of the erstwhile State of .Jammu & Kashmir in 1943 as teacher in the Government School, Tregham.

He later on passed the examinations of Bachelor of Teaching and the Master of Arts and was selected in July 1968 for teaching in the Higher Secondary School. Petitioners 3 to 10 were trained graduates holding degrees of Bachelor of Education. Petitioners 3,4,6,7,9, and 10 had also passed the Master of Arts examinatfon and with the exception of petitioner No. 10 were selected for teaching in Higher Secondary Schools in July 1968.

All the teachers and other officers of the Education Department of the State were governed by the Jammu & Kashmir Civil Services (Classification, Control ; md Appeals) Rules 1956 which were promulgated on June 14, 1956.

Rule 9 relates to first appointment to a service or class. According to rule 19 in'making the appointment to a service or class reservation may be made in favour of any backward class which, in the opinion of the Government, is not adequately represented in the services. Rule 24 dealt with seniority. Rule 25 to the extent it is material re<tds :-

"Promotions : (1) Alf promotions shall be made by the appointing authority. '

( 2) Promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability and shall be subject to the passing of any test that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal.

(I) [1969] I S.C.R. 103.

MAKHANLAL v. J, & K, STAT:B (Grover, /,) 835

( 3) All other promotions shall be nµide in accordance with seniority and subject to any test or special qualifications prescribed by Government unles~

(a) the promotion of a member has been withheld as a penalty; or -

(b) a member is given special promotion for conspicuous , merit and ability."

Articles 14 and 16 of the Constitution were made applicable to the State of Jammu & Kashmir in 1954.

Rule 19 is stated to have been abrogated in the year 1958. But in giving pro- C motions to the teachers in the gazetted cadre respondents 1 and 2 adopted tb~ following basis, which will be called the communal policy hereafter :-

( 1) 50% of the vacancies were filled from among the Muslims of the entire State;

(2) 40% out of the remaining 50% vacancies were filled by Jarnvi Hindus (Hindus from the Jammu Province of the State majority of whont are Dogras) and; ( 3) the remaining 10% of the posts were. given , to others including Kashmiri Pandits.

This was purported to be done on the ground that Muslims of the entire State and the Hindus of J ammu Province constituted "backward classes" for the purpose of employment.

In December 1965 Triloki Nath and Shambu Nath the present petitioners 2 and 4 filed a writ petition in this Couri.

In all 81 respondents were impleadled which included the present res- F pondents Nos. 38 to 107. In that petition it was alleged that the communal policy of promoting teachers to the gazetted cadre was not disclosed in any order made by the State but had been arrived at on the footing of the recruitment by promotion made to the gazetted post of teachers from time to time. The promotions had been made on the basis of merit and seniority but G purely on the ground of religion, caste ana place of birth. This &i Court called for a report from the High eourt on the question whether the M11slims of the entire State of Jammu & Kashmir .and the Hindus of the J aminu Province constituted backward dass iu the sense explained in M. R. Balaji & !f)rs. v. The

State of Mysore (1) and also whether they were not adequately re- H presented in the services of the State. (See Triloki Nath Tiku & Anr. v. State of /ammu & Kashmir & Ors.(2 ) After the report was received it was found that the High Court did not record its

 . (I) [1963] Suppl. I S.C.R. 439. ·

I '

opinion on the evidence.

But ts Co11; rt .Proceeded to give its decision on the material before 1t.

This 1s what was observed _ at page 105 [(1969) 1 S.C.R. 103] by Shah, J.

"Article 16 in the first instance by cL '('2) prohibits discrimination on the ground, inter alia, of religion, rce, caste, place of birth residence and peits :ind exception to be made in the matter of reservation m favour of backward classes of citizens.

The expression "backward class" is not used as synonymous with "backward caste" or "backward community".

The members of an entire caste or community may in the social, economic and educational scale of values at a given time be backward and may on that account be treated as a back ward class but that is not because they are members of a caste or community, but because they form a class.

In its ordinary connotation the expression "class"means a .homogenous section of the people grouped together because of certain likeness or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. But for the purpose of Art. 16(A) - in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent place of birth or residence cannot be adopted because it would directly offend the Constitution."

It was pointed out that no formal order making a provision for reservation of appointment to posts in favour of any backward class of ci1izens had been produced. There were , a number of government orders by which the proiµotions had been made according to the communal policy.

There was no reference in any of the orders to selection of officers on the basis that they belonged to backward classes.

It was held that in effect the communal policy was not of reservation of some posts; it was a a scheme of distribution o4' all the posts communitytwise.

Such distribution made in implementation of the so called policy was contrary to the constitutional guarantee under Art. 16 ( 1) and

(2) and was not saved by cl1rnse (4). The promotions granted to respondents 3 to 83 in that petition were declared void. It was left open to the State to devise a >scheme consistent with the constitutional guarantee for reservation of appointments to posts or promotions in favour of any backward class of citizens which, in the opinion of the- State, was not adequately represented in the services.

It is common ground that no such scheme as was envisaged was devised. It has, however, been stated in the present return

A that certain rules have been promulgated by a notification No.

S.R.O. 460 dated August 19, 1969. In the meantime the officers concerned of the Education Department of the State thought of an ingenious device of givg ostep.sible effect to e decisio!l of this Court. Those teachers who were respondents m the previous

writ. petition and whose promotions became illegal in . view . f the pronouncement of this Court were ordered to be ad1usted m non-gazetted cadre of which the grade was Rs. 150-5~. ey were "allowed to work against the posts they were holmg pnor to their reversion" on temporary basis. Numerous copies of the orders which have been annexed fo the petition show that this was the common pattern that was followed. A new nomenclature was evolvedfor the post of Head Masters. They were called Teachersin-charge.

They were to get the srufle salary which they were getting when they were in 1he gazetted cadre of Rs. 300-600. For instance, if A was working as Head Master in the gazetted post and was drawing a salary of Rs. 300/- per month according to the scale of Rs. 360-600 he was stated to have been adjusted in his own grade and on his own pay i.e., in the grade of Rs. 150-500. He was still to get a salary of Rs. 350/- which he would not have got if he had originally not been promoted to the gazetted cadre.

In other words although such a teacher was brought into the non-gazetted cadre from the gazetted grade his emoluments and his posting as Head of an institution were not affected.

It is not disputedl that ordinarily he could not hiwe been appointed to that post being far junior to the petitioners according to the seniority list of the non-gazetted cadre to which originally he and the petitioners belonged.

It has been stated soniewhat tamely in the return of respondents 1 and 2 that when these teachers who were affected by the decision of this Court had been promoted -to the gazetted cadre npt only seniority but merit had. also been taken into consideration. But it has not been denied and this fact has been admitted before us in the course of . arguments that but for the so called communal policy these teachers would not have been promoted to the gazetted cadre even , ough merit and other factors had entered into their promotion mter-se. As regards the other respondent teachers who did not . figure in the .earlier petition, they were all promoted to the gazet- G ted cadre pnor and subsequent to the previous decisiott in complete defiance of the law laid down by this Court. Such a course has been sought to be justified on the tenuous ground that they were not parties to the previous petition and therefore their case.< would not be governed by the decision give!) in tli.at petition. It may be observed immediately that such a position is wholly un

tnable and misconceived. The judgment which was delivered d not m~ely declare the promotions granted to the respondents H

m the petition filed at the previous stage as unconsiitutional but also laid down in clear and unequivocal tenns that the distribution

-0f appointments, posts or promotions made in implementation of the communal policy was contrary to the constitutional guarantee of Article 16.

The law so de.clared by this Court was binding Ql1 the respondent State and its officers and they were bound to follow it whether a majority of the present respondents were-parties or not to the previous petition.

In para 20 of the petition instances have been given which show that in spite al the judgmi:mt of this Court certain teachers who had been promoted to the post of Head Masters are still Head Masters though they are very much below Kashmiri Pandit teachers in the list of seniority. Fot instance, Mohd. Yusuf Masoodi who was respondent No. 52 in the previous writ petition had been promoted to the post gf Head Master, Nowhatta. Even after the judgment he was continuing as Head Master although he was placed at No. 243 in the seniority list of 1961. Messrs.

Deva Kaul and Dwarika Nath were 68 and 76 respectively in that seniority list wre working as teachers under him in the same school.

Masoodi was drawing a salary above Rs. 3~0/ per month whereas the two Kashmiri Pandit teachers were dawing -0nly Rs. 300/- though both of them were senior to him and were not in the same grade of Rs. 150-500 to which Masoodi is stated to have been reverted. Similarly those teachers who were given promotions after the appointments on communal basis had been struck down had been promoted following the same rule.

In para 22 an insiance is given of Ghulam Mohiuddin Wani-who had been promoted as Teacher-in-Charge High School Shogapore. It is stated that his name did not appear in the seniority list whereas Triloki Nath Kaul was much senior to him but was workfog as a teacher under him although the salary which Kaul was getting was Rs. 250/- per month and the salary which Wani was drawing was only Rs. 210/- per month. In the return respondents 1 and 2 have not contr, adicted the facts stated in para 20 of the petition but have taken .certain pleas of general nature and of legal character. Similarly with regard to para 22 it has been stated inter alia in the return : ·

"Asregards the individual cases referred to in para 22 -of the writ petition the averments and submissions made therein are misconceived and . unwarranted and misleading".

Our attention has, however, not been invited to any facts or -particulars relating to the aforesaid instances in the return which would throw doubt on the correctness of the instances given in the petition in paras 20 and 22.

According to the petitioners the present respondents 3 to 27 were not parties to the previous proceedings but they were Drol!'

moted tu the gazetted grade in an officiating capacity though they were junior to petitioner No. 1. Respondents 38 to 107 were parties to the previous petition and their promotions Were expressly quashed by this Court. Respondents 108 to 218 were promoted during the pendency of the writ petition and respondents 219 tu 251 were promoted after the decision of. this Court in an officiating capacity. It is abundantly clear and this position has not been controverted that all the promotions which were made of the !"..Spondents who were not parties to the previous petition were based not purely on merit but were made on account of . the communal policy which had been struck down by this Court as unconstitutional.

Respondents 3.8 to 107 who were parties to the previous petition were reverted to the non-gazetted grade but they were still retained in the posts whiCh they were holding when they had been promoied to the gazetted grade although in some cases the nomenclature was changed from Head Master to TeacherinCharge. In the absence of any rules lawfully promulgated for employment of backward classes promotions could be made only in accordance with rule 25 and there can be no manner of dOubt that th.ere was absolute non-compliance with the provisions of that r..; Je. The promotions thus made of all the respondent teachers were illegal and unconstitutional being violative of Arti cle 16 of the Constitution. They have, therefore, to be set aside.

All the promotions made to the higher posts or the higher grade pursuant to the communal policy would have to oo revised amJ reconsidered and appropriate orders must be passed by respon dents l and 2 with regard to them as also the petitioners in accordance with law. The new rules stated to have bP..<m framed have not been shown to us and we wish to express no opinion on their applicability.

The present petition shall stand allowed in the manner mdi cated above. The petitioners shall be entitled to their costs in this Court.

K.B.N.

Petition allowed.

MAKHANLAL WAZA & ORS

STATE OF JAMMU & KASHMIR & ORS

G. K. MITTER

K. S. HEGDE

A. N. GROVER

P. JAGANMOHAN REDDY, JJ

Constitution of India

Art. 16

Jammu

Jammu Province

Art. 16(1)

Triloki Nath

Art. 16

Art. 16

[1969] 1 S.C.R. 103

Art. 32

A. K. Sen

Naunit Lal

C. K. Daphtary

N. S. Bindra

R. N. Sachthey

C. Mathur

P. N. Tiwari

Grover

Article 32

Art. 16

Jammu & Kashmir

.Jammu & Kashmir

Tregham

June 14, 1956

Articles 14 and 16

State of Jammu & Kashmir

J ammu Province

Triloki Nath

Shambu Nath

J aminu Province

(1969) 1 S.C.R. 103

Shah

Article 16

Art. 16(A)

Art. 16

August 19, 1969

Article 16

Mohd. Yusuf Masoodi

Nowhatta

Deva Kaul

Dwarika Nath

Masoodi

Kashmiri Pandit

Ghulam Mohiuddin Wani

Triloki Nath Kaul

Wani

K.B.N.