JUDGEMENT : CHATURVEDI, J. This is second appeal preferred by the judgment-debtor in execution proceedings and raises an important question of law. The District Judge, Gwalior, and the Civil Judge, First Class, Lashkar, overruled the judgment-debtor's objections that the decree-holder's application for execution should be rejected and so the judgment-debtor has come to this Court in appeal. 2. It appears that the respondent-decree-holder had obtained an ex parte decree on 22-12-1941 against the appellant Brajmohan Bose and others in the Court of the Munsiff a Kasganj, in the District of Aligarh, in the State of Uttar Pradesh. The first application for execution in that Court was filed on 13-12-1944, the second on 13-12-1947, and the third on 7-12-1949, and there is no doubt that the third application for execution which is in dispute was filed within time under the provisions of Article 182 (sub-cl. 5) of the Indian Limitation Act. The decree was then transferred for execution to the Court of Subordinate Judge, Lashkar, in the State of Madhya Bharat under orders of the Munsiff, Kasganj dated 8-2-1950 as the judgment-debtor had no property in the State of Uttar Pradesh and a certificate under Order 21, Rule 6 of the Indian Civil Procedure Code to this effect was granted on that date. The appellant-judgment-debtor on 27-10-50 filed an application objecting to the execution of the decree against him contending, inter alia, that the Munsiff of Kasganj had no jurisdiction to pass a decree against him and that he had not borrowed any money from the decree-holder. He also contended therein that he had also applied to the Munsiff of Kasganj for setting aside the ex parte decree passed against him. The objection was overruled by the Civil Judge, Lashkar, and that order was upheld by the District Judge, Gwalior, so the judgment-debtor has come in second appeal in this Court, and the main contention advanced by Mr. Bhagwandas Gupta is that till 26-1-1950 the Kasganj Court was a foreign Court qua Gwalior Courts and that a decree pronounced by a Court in a personal action, in absentem, the absent party not having submitted himself to its authority, is a nullity. Mr. Bhagwandas Gupta is that till 26-1-1950 the Kasganj Court was a foreign Court qua Gwalior Courts and that a decree pronounced by a Court in a personal action, in absentem, the absent party not having submitted himself to its authority, is a nullity. Mr. Bhagwandas Gupta further urged that if the decree was a nullity any subsequent alteration of the law could not have the effect of validating the execution proceedings against the judgment-debtor, and consequently the subsequent change in the capacity or the authority of the Court functioning in the territory which was formerly the territory of the Gwalior State or of Madhya Bharat State cannot operate to deprive the judgment-debtor of his right to claim exemption from execution of the decree which when passed against him was a mere nullity. Mr. Bhagwandas Gupta in support of his contention cited many decisions including a ruling of their Lordships of the Privy Council in the case of - 'Gurdyal Singh v. Raja of Faridkot', 22 Cal 222 (PC) (A) where their Lordships observed: "In a personal action, to which none of these causes of jurisdiction apply, the decree pronounced 'in absentem' by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it; and it must be regarded as a mere nullity by the Courts of every nation except (when authorised by special local legislation) in the country of the forum by which it was pronounced." 3. Mr. Maheshwari on behalf of the respondent-decree-holder placed reliance on a ruling of a Division Bench of this Court, at Indore, in - 'Firm Lunaji Narayan v. Purshottam', AIR 1953 Madh-B 225 (B) which has followed a Full Bench decision of the Bombay High Court in - Bhagwan Shankar v. Raja Ram Bapu', AIR 1951 Bom 125 (C) which upheld a ruling of the Division Bench of that Court in - 'Chunnilal Kasturchand v. Dundapa Damappa', AIR 1951 Bom 190 (D). The Division Bench at Indore on the basis of these rulings came to the conclusion that the judgments pronounced by foreign Courts against non-resident-foreigner are not absolute nullities in the sense that they are void from their inception. The Division Bench at Indore on the basis of these rulings came to the conclusion that the judgments pronounced by foreign Courts against non-resident-foreigner are not absolute nullities in the sense that they are void from their inception. They are valid and binding in the country of the forum which passed them and are executable there until they are satisfied or become barred by the operation of statute of limitation or otherwise become inoperative. It was further held that the executability of a binding judgment within a certain territory is a matter not affecting vested right of a judgment-debtor. It is therefore held to be competent for the decree-holder who obtained an ex parte decree against a resident of a Part B State from a Court in Part A State before the promulgation of the Constitution to execute the same through a Court in Part B State. Mr. Maheshwari also placed reliance on - 'Moosakutee Hajee v. Pylotu Joseph', AIR 1952 Trav-C. 89 (E) which following - ' AIR 1951 Bom 125 (FB) (C)' expressed the opinion that the point of time that has to be regarded in considering the question of executability is not the time at which the decree was passed, but the time when it is sought to be executed because, notwithstanding the existence of any obstacle for execution at the time the decree was passed, if that obstacle is removed by the time the execution of the decree is sought, that obstacle cannot operate as it is only its continued existence that can stand in the way of execution. Thus it was held that an ex parte decree obtained against a non-resident foreigner at the time the decree was passed can be executed against him if at the time the execution is taken out he has become a citizen by virtue of an act of State. Mr. Maheshwari also invited our attention to the application of the judgment-debtor in which he had stated that an application to set aside the ex parte judgment had been submitted to the Kasganj Court whereby the learned counsel meant (though the point was not argued fully) that the judgment-debtor had submitted to the jurisdiction of the Kasganj Court. 4. Mr. Maheshwari also invited our attention to the application of the judgment-debtor in which he had stated that an application to set aside the ex parte judgment had been submitted to the Kasganj Court whereby the learned counsel meant (though the point was not argued fully) that the judgment-debtor had submitted to the jurisdiction of the Kasganj Court. 4. From the papers on record in the execution Court, it appears, that the application to set aside the ex parte decree was dismissed on 17-3-51 in default (Civil Miscellaneous File 210 of 1951). It further appears that the application in the Court of the Munsiff of Kasganj to set aside the ex parte decree was made by the judgment-debtor in 1951 i.e. after the Court had ceased to be a foreign Court qua the Gwalior Court. I do not think, therefore, that the subsequent conduct of the judgment-debtor in approaching the Kasganj Court and asking for setting aside the ex parte decree would be any evidence to show that he had submitted to the jurisdiction of the Kasganj Court before the decree was passed. At any rate I cannot give to his subsequent conduct a retrospective significance. So the only point before us is: whether the judgment-debtor was deprived of a substantive right which, before the Constitution came into force on 26-1-1950, was vested in him by virtue of the provisions in the Gwalior Civil Procedure Code. This matter, in my opinion, is to be governed by the principles of Private International Law. The distinction between matters which belong to "procedure" and matters which affect substantive rights of the parties is very subtle, and, in the opinion of English lawyers, the expression "procedure", as interpreted by English Judges, includes all legal remedies and everything connected with the enforcement of a right; but any rule of law which solely affects not the enforcement of the right but the nature of the right itself, does not come under the head of "procedure". Thus if the law which governed, e. g. the making of a contract, renders the contract absolutely void, this is not a matter of procedure, for it affects the rights of the parties to the contract, and not the remedy for the enforcement of such rights, (Dicey's Conflict of Laws page 861, 6th Edn. ). Thus if the law which governed, e. g. the making of a contract, renders the contract absolutely void, this is not a matter of procedure, for it affects the rights of the parties to the contract, and not the remedy for the enforcement of such rights, (Dicey's Conflict of Laws page 861, 6th Edn. ). So Salmond also observes: "Although the distinction between substantive law and procedure is sharply drawn in theory, there are many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law. In such cases the difference between these two branches of the law is one of form rather than of substance. A rule belonging to one department may by a change of form pass over into the other without materially affecting the practical issue. In legal history such transitions are frequent, and in legal theory they are not without interest and importance." (pages 476-477 of Jurisprudence, 10th Edn.). Dr. Cheshire in his Private International Law also refers to this difficulty in determining what rules are procedural and what are matters of substance and fears that if a rule is improperly relegated to the domain of procedure the result may be to deprive a party of a right which he has acquired under a foreign system of jurisprudence. He then observes: "Historically they are inseparably connected. Much of substantive law is secreted in the interstices of procedure, and a great American has said that 'wherever we trace a leading doctrine of substantive law far enough back, we are likely to find some forgotten circumstance of procedure at its source. Moreover, it is still true that certain rules which on the surface appear merely to affect remedies are in fact rules of substance, not of procedure. The truth is, as an American jurist has so convincingly shown, that substance and procedure cannot be relegated to clear-cut categories. There is no preordained dividing line between the two, having some kind of objective existence discoverable by logic. What is procedural, what substantive, cannot be determined 'in vacuo'. A line between the two must, of course, be drawn, but in deciding where to draw it we must have regard to the relativity of legal terms and must realize the exact purpose for which we are making the distinction. The line should not be drawn in the same place for all purposes. A line between the two must, of course, be drawn, but in deciding where to draw it we must have regard to the relativity of legal terms and must realize the exact purpose for which we are making the distinction. The line should not be drawn in the same place for all purposes. It should be drawn in the light of the relevant circumstances, one of which is that the purposes of Private International Law as distinct from municipal law require fulfilment. (pages 828-829; 3rd Edn. 1948 Reprint)." 5. In the present case the importance of the distinction will be apparent from the fact that the ex parte decree was passed on 22-12-1941 and for 8 years it continued a nullity and was to be so treated by the Court in Gwalior where it could not be executed. Even a suit on the basis of this judgment (a foreign judgment) in the Gwalior Courts could not have been filed after 22-12-1947 (Article 117 Indian Limitation Act). Can it now be contended with any force that the nullity attached to the decree was suddenly wiped out and the decree on 26-1-1950 became capable of execution in Gwalior Courts because of the change in the character of the Courts and the alteration in the status of the defendant as he became a citizen of India and the Kasganj Court ceased to be a foreign Court on that date? In my opinion, the arguments of Mr. B.D. Gupta are not without substance in saying that once rights are vested in the judgment-debtor in treating the decree as an absolute nullity, the rights must be enforced and cannot be taken away by any subsequent change in the law unless the Legislature has made it clear that the same is to have retrospective effect. I also find that there is ample justification for the views of the Mysore High Court in - 'Subbaraya Setty and Sons v. Palani Chetty and Sons', AIR 1952 Mys. 69 (F) that the decrees passed in the Courts of Part A or Part B States before they became parts of the territory of India under Constitution of 1950, cannot be said, with retrospective effect, to be those of Civil Courts in the territory of India within the meaning of Article 261 (3) of the Constitution. 69 (F) that the decrees passed in the Courts of Part A or Part B States before they became parts of the territory of India under Constitution of 1950, cannot be said, with retrospective effect, to be those of Civil Courts in the territory of India within the meaning of Article 261 (3) of the Constitution. Then, it also appears to me that the very arguments repelled by the Lordships of the Privy Council in - 'Gurd-yal Singh's case (A)', have, to a certain extent, furnished some foundation for the Bombay decisions. A perusal of the full report of the Privy Council case - '(1894) AC 670 (A)', will amply support me in this view and I, therefore, think it proper to give the full facts of that case here. The appellant's father, Bir Singh, was a native of Jhind State and a servant of the Rajah of Faridkote as a Treasurer. In that capacity he worked for five years from 1869 to 1874 and then he left the State and went away to his native place in Jhind. Considerable defalcations in the moneys under his charge were alleged. In 1877 two suits were filed against him in Faridkote State and summonses were served on Bir Singh. Ex parte decrees were passed by the Courts in both the suits, against Bir Singh who had no assets in Faridkote and the execution of the decrees in Jhind was considered difficult to obtain. Having engaged in trading transactions in Lahore, two suits were filed in Lahore against him on the basis of the foreign judgments. The suits failed in the trial Court on the ground of want of jurisdiction on the part of the Faridkote Court over the person of the defendant, on the ground that he had not submitted to the jurisdiction of that Court. The decree was upheld by the first appellate Court on another ground. Bir Singh then died and the Rajah went in appeal to the Punjab Chief Court which reversed these decrees and gave the Rajah decrees for the amounts claimed by him in each suit. The decree was upheld by the first appellate Court on another ground. Bir Singh then died and the Rajah went in appeal to the Punjab Chief Court which reversed these decrees and gave the Rajah decrees for the amounts claimed by him in each suit. The material passages in the judgment of Sir Meredyth Plowden, C.J. in reference to the point that came before the Privy Council and to which I would like to draw attention are as follows: "There is certainly, so far as I can ascertain, no rule of international jurisprudence universally recognised that a municipal Court is absolutely incompetent to exercise jurisdiction over a non-resident foreigner, and it is certain that in many, if not in most countries, the municipal law authorises the exercise of jurisdiction in such cases by its own Courts, subject, generally speaking, to the condition that notice, actual or constructive, be given to the absent defendant. Again, the Code of Civil Procedure expressly enacts in Section 10, that no person shall, by reason of his descent or place of birth, be in any civil proceedings exempt from the jurisdiction of any of the Courts, and in Section 89 provides for service of summons outside the jurisdiction, while Section 17 authorises the Court to take cognizance of certain suits when the cause of action has arisen within the jurisdiction...................... Again, it is certain that, according to the English doctrine, a non-resident foreigner may in a variety of ways submit himself to the jurisdiction of the Court of a country, by the laws of which he is not otherwise bound, so as to be bound by the judgment of such Court, when sought to be enforced against him in his own country............ Further, it is certain that whenever a question arises of enforcing the obligations arising out of a contract, the law to be applied is the 'lex loci contractus', and this furnishes a strong argument in favour of the binding effect of the judgment of a tribunal 'loci contractus' over an absent foreigner who had contracted while resident in the country where such tribunal is situate." 6. It may here be mentioned that Section 17 of the old Code is now reproduced and renumbered as Section 20 of the Indian Civil Procedure Code of 1908. It may here be mentioned that Section 17 of the old Code is now reproduced and renumbered as Section 20 of the Indian Civil Procedure Code of 1908. Sub-section (c) of Section 20 says that every suit may be instituted in a Court within the local limits of whose jurisdiction, the cause of action, wholly or in part, arises. In support of the judgment of the Punjab Chief Court, the arguments of the counsel for the respondent before the Privy Council are important and have been reproduced at 'page 235 of 28 Cal 222 (A)'. It was argued that it was established that the defendant had notice of the suit in Faridkote State Court and he admitted that fact and he preferred not to appear there. The Court of Faridkote had jurisdiction over the defendant so long as he was resident in Faridkote territory and it was contended that the Court retained that jurisdiction after the defendant had withdrawn himself from that territory. The larger of the two suits related entirely to the accounts which Bir Singh ought to have rendered. When he became a responsible officer of the State he virtually held himself to be within the jurisdiction of the Faridkote Court, inasmuch as he had, in effect, agreed to account to the State, and to be liable in case of his not doing so. Office having been thus accepted, and the whole cause of action having arisen in the State of Faridkote, where the breach had taken place, to obey the law of that State was obligatory upon him. Part of that law declared a suit should be brought where the whole cause of ac-action had arisen, a procedure adopted from that prevailing in British India. On this, when notice had been given to Bir Singh, and the suits duly heard, though in his absence, the decree were well founded. Then it was urged that in British India the Court in which the principal should sue his defaulting accountant would be that within whose jurisdiction the whole cause of action accrued. The English Law showed that where there was a contract made and broken within the English Court's jurisdiction, there might be service of notice outside it. Then it was also argued that although the defendant had ceased to hold office in Faridkote, he was still connected with it by the effect of his previous relations with it. The English Law showed that where there was a contract made and broken within the English Court's jurisdiction, there might be service of notice outside it. Then it was also argued that although the defendant had ceased to hold office in Faridkote, he was still connected with it by the effect of his previous relations with it. He had assets which he had left in that State; some of his pay remaining unpaid. 7. All these contentions were repelled by the Privy Council which reversing the decree and judgment of the Chief Court of Punjab restored those of the Lahore Additional Commissioner. Lord Selborne, who delivered the judgment, after narrating the facts stated that the defendant was in Jhind when he was served with certain processes of the Faridkote Court, that Bir Singh disregarded the processes and never appeared in either of the suits instituted by the Rajah or otherwise submitted himself to that jurisdiction. The view was expressed that Bir Singh was under no obligation to do so, by reason of the notice of the suits which he had received or otherwise, unless that Court had lawful jurisdiction over him. The judgment then proceeded: "Under these circumstances there was, in their Lordships' opinion, nothing to take this case out of the general rule, that the plaintiff must sue in the Court to which the defendant is subject at the time of suit ("Actor Se-quitur forum rei") which is rightly stated by Sir Robert Phillimore (International Law, Vol.4, S.891) to "lie at the root of all international, and of most domestic, jurisprudence on this matter. All jurisdiction is properly territorial, and "extra territorium jus dicenti, impune non paretur.".............. As between different provinces under one sovereignty (e. g., under the Roman Empire) the legislation of the sovereign may distribute and regulate jurisdiction; but no territorial legislation can give jurisdiction which any foreign Court ought to recognise against foreigners, who owe no allegiance or obedience to the Power which so legislates ........ In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in 'absentem' by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in 'absentem' by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it; and it must be regarded as a mere nullity by the Courts of every nation except (when authorised by special local legislation) in the country of the forum by which it was pronounced ............... These are doctrines laid down by all the leading authorities on international law; among others, by Story (Conflict of Laws, 2nd Edn. Ss.546, 549, 553, 554, 556, 586), and by Chancellor Kent (Commentaries, Vol.1, page 284, note C. 10th Edn.), and no exception is made to them, in favour of the exercise of jurisdiction against a defendant not otherwise subject to it, by the Courts of the country in which the cause of action arose, or (in cases of contract) by the Courts of the 'locus solutionis'. In those cases, as well as all others, when the action is personal, the Courts of the country in which a defendant resides have power, and they ought to be resorted to, to do justice. The conclusion of the learned judges in the Chief Court of the Punjab is expressed in the following sentence of the judgment delivered by Sir Meredyth Plowden in the first of the two actions: 'On the whole, I think it may be said that a State assuming to exercise jurisdiction over an absent foreigner, in respect of an obligation arising out of a contract made by the foreigner while resident in the State and to be fulfilled there, is not acting in contravention of the general practice or the principles of international law, so that its judgment should not be binding merely on the ground of the absence of the defendant.' If this doctrine were accepted, its operation, in the enlargement of territorial jurisdiction would be very important. No authority, of any relevancy, was cited at their Lordships' Bar to support it, except - 'Bacquet v. Macarthy', (1831) 2 B and Ad 951 (G), and a passage from the judgment delivered by Blackburn, J., in - 'Schibsby v. Westenholz', (1870) 6 QB 155 (H)." 8. No authority, of any relevancy, was cited at their Lordships' Bar to support it, except - 'Bacquet v. Macarthy', (1831) 2 B and Ad 951 (G), and a passage from the judgment delivered by Blackburn, J., in - 'Schibsby v. Westenholz', (1870) 6 QB 155 (H)." 8. The Privy Council ruling in this case has since then been followed by all the High Courts in India and by the Courts in England and the Commonwealth. It was discussed in - 'Emanuel v. Symon', (1908)-1-KB 302 (J) and on the basis of that ruling it was held by the Court of Appeal, explaining the comments of their Lordships of the Judicial Committee on the decisions in - '(1831) 2 B and Ad 951 (G)', and - '(1870) 6 QB 155 (H)', that neither the facts of possessing property situate in a foreign country nor the fact of entering into a contract in that country is sufficient to give the Courts of that country jurisdiction in an action in personam over a foreigner not resident in that country at the date of the action, who has neither appeared to the process nor expressly agreed to submit to the jurisdiction of that Court. At pages 313-14 Kennedy, L.J. observes: "That question is dealt with in - 'Gurdyal Singh v. Rajah of Faridkote (A)', not only with reference to the Chief Court of the Punjab, but also with reference to a view expressed by Blackburn J. in - 'Schibsby v. Westenholz (H)', and the decision of the Privy Council is clear that there is no implied obligation on a foreigner to the country of that forum to accept the 'forum loci contractus', as having, by reason of that contract, acquired a conventional jurisdiction over him in a suit founded upon that contract for all future time, wherever the foreigner may be domiciled or resident at the time of the institution of the suit. Such an obligation may exist by express agreement, as in the case of - 'Copin v. Adamson', (1874) 9 Ex 345 (J), and as in many cases of foreign contracts where the parties by article of agreement bind themselves to accept the jurisdiction of foreign tribunals; but such an obligation, as is pointed out in the decision of the Privy Council, is not to be implied from the mere fact of entering into a contract in a foreign country." It will be clear from the passages cited above that the argument based on the provision of Subsection (c) of S.20 of the Indian Civil Procedure Code and on the basis of 'forum loci contractus' had been fully repelled by their Lordships of the Judicial Committee in - 'Gurudayal Singh case (A)'. 9. It therefore appears strange that the judgment of the Full Bench of the Bombay High Court in - ' AIR 1951 Bom 125 (C)', overlooks this point in the Privy Council ruling and proceeds on the assumption that because Section 20 (c) confers jurisdiction therefore the ex parte decree passed against a foreigner cannot be a nullity. With very great respect, I reproduce below relevant passages from para 6 of the Bombay judgment which are material to the decision of that case. Para 6 runs as follows: "The decree which was passed in this case was passed by the Sholapur Court and it was exercising jurisdiction upon a non-resident foreigner. But the Sholapur Court had the right to exercise jurisdiction upon a non-resident foreigner because Section 20, Civil Procedure Code, confers such jurisdiction. Section 20 (c) clearly contemplates that a Court in British India may entertain a suit against a non-resident foreigner if the cause of action has accrued within jurisdiction wholly or in part, and for the purpose of this Full Bench we are assuming that the suit filed by the plaintiff was properly filed, that the Sholapur Court had jurisdiction to entertain it, and that the decree passed by the Sholapur Court was a decree passed by a competent Court and the decree was a valid and binding decree. It is perfectly true that ordinarily Courts all over the world exercise jurisdiction only against persons who are within their jurisdiction and whom they can reach with the arm of the law. It is perfectly true that ordinarily Courts all over the world exercise jurisdiction only against persons who are within their jurisdiction and whom they can reach with the arm of the law. It would be futile for a Court to assume jurisdiction when it cannot issue process against the party against whom it is seeking jurisdiction. But special laws make exceptions and one of the exceptions is to be found in Section 20 (c) where, as we said before, the Legislature has conferred upon the Courts in India the right to proceed against non-resident foreigners although they are not within reach of the processes of that Court. Therefore we have clearly this position that the decree passed by the Sholapur Court was not a nullity. It is equally true that if the defendant who was a citizen of Akalkot and therefore a foreigner qua the Sholapur Court and did not acquiesce in the jurisdiction, then the decree passed by the Sholapur Court could not be enforced when it was transferred for execution to the Akalkot Court. The true view of the matter is not that the decree was a nullity, but its enforcement or executability was limited to the Sholapur Court and it could not be executed or enforced in a foreign territory because the defendant had not submitted to the jurisdiction of the Sholapur Court." 10. Then the judgment proceeds: Para 7-'Some difficulty has been caused by reason, with great respect, of the language used by the Privy Council in - 22 Cal 222 (A)'. But when one analysis the particular passage on which reliance has been placed, the position is made clear. Their Lordships of the Privy Council state (page 238): In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced 'in absentem' by a Foreign Court to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity." Emphasis is placed upon the expression used by the Privy Council, viz., that the decree is an absolute nullity. But the Privy Council goes in the next sentence to qualify what it has said before and this is what their Lordships say (page 238): "He is under no obligation of any kind to obey it, and it must be regarded as a mere nullity by the Courts of every nation, except (when authorised by special local legislation) in the country of the forum by which it was pronounced". Therefore the decree is not an absolute nullity. Something which is an absolute nullity can never be enforced in any part of the world under any circumstances. But the Privy Council itself contemplates that such a decree can be enforced in the forum by which it was passed provided special local legislation authorises that forum, and therefore in one sense the decree is a nullity in a limited sense. The other way of putting the same idea is that the decree is a valid decree, but it is not enforceable in Courts other than Courts where it was passed by reason of private international law. Therefore, once the position is made clear that the decree is not an absolute nullity, or, with respect to their Lordships, not even a nullity, but merely there is an impediment in the way of its being executed, then no difficulty arises in coming to the conclusion to which, again with respect, very rightly, Rajadhyaksha, J. and Shah, J. came." 11. I have already stated above that the provision embodied in S.20 (c) was already before the Privy Council as the corresponding section of the Code of 1882 was S.17 which contained this provision and on which reliance had been placed by the Chief Judge of the Punjab Chief Court in his judgment. This provision had also been pressed before their Lordships of the Privy Council by the counsel for the respondent. Surely this could not have been a "special local legislation" contemplated by the Privy Council. This was a piece of an ordinary legislation found in every country, including England. What the Privy Council meant was that there should be such legislation which had specially been enacted authorising the Courts to pass a decree against an absentee foreigner. Surely this could not have been a "special local legislation" contemplated by the Privy Council. This was a piece of an ordinary legislation found in every country, including England. What the Privy Council meant was that there should be such legislation which had specially been enacted authorising the Courts to pass a decree against an absentee foreigner. Presumably the Privy Council had in mind the case of - 'Ashbury v. Ellis', (1893) AC 339 (K) an appeal from the New Zealand Court of Appeal decided by their Lordships just a year before the case of Gurudyal Singh (A). The main question argued in that case related to the right of the New Zealand Legislature to authorise judicial proceedings against absentees. The rule of the New Zealand Code (46 Vict., No.29) which came for discussion was rule 53, one of a group of rules which fell under the head of "proceeding without service". The material part of the rule was as follows: "In actions founded on any contract made or entered into or wholly or in part to be performed within the colony, on proof that any defendant is absent from the colony at the time of the issuing of the writ, and that he is likely to continue absent, and that he has no attorney or agent in the colony known to the plaintiff who will accept service, the Court may give leave to the plaintiff to issue a writ and proceed thereon without service." It was argued that an attempt was made by New Zealand law to affect persons out of New Zealand and the local limitations of the jurisdiction were exceeded. It was held by the Privy Council that a law of the local Legislature authorising the local Courts in any case of contracts made or to be performed in the colony to decide whether they will or will not proceed in the absence of the defendant is intra vires and reasonable. It was further held that whether a judgment against an absentee, without service of the writ, will be enforced by the Courts of another country is a matter for those Courts to determine, and does not affect the validity of the local law. It was further held that whether a judgment against an absentee, without service of the writ, will be enforced by the Courts of another country is a matter for those Courts to determine, and does not affect the validity of the local law. It was only with reference to this sort of special local legislation that the Privy Council contemplated that a decree passed by virtue of such legislation can be enforced in the forum by which it was passed. Only where there is such a "special legislation" the decree is a nullity in the limited sense. But as there was no special legislation of this kind in the territories formerly known as British India, the decree passed without jurisdiction against an absentee foreigner must be held to be an absolute nullity even in the country of the forum by which it was pronounced. 12. As the decree passed must be considered to be a nullity, it follows that it cannot be executed anywhere. Moreover, the rights vested in the judgment-debtor cannot be taken away by the Constitution unless there is something either expressly stated or meant by necessary implication to affect prejudicially vested rights. The distinction between substantive rights and rights under procedural law, as seen above, is very subtle, and, there can be vested rights even under procedural law (e.g., rights of appeal) which once accrued cannot be taken away. The Bombay decision does not seem to have taken a balanced view of all the aspects of the case and, with very great respect, I must say that the decision of this Court in 'AIR 1953 Madh-B 225 (B)', based on the Bombay judgment, requires reconsideration. That Jamkhandi and Akalkot States merged in Bombay Presidency may be true; but the same cannot be said of the Madhya Bharat State. 13. Then, my attention is drawn to para.56 of 'AIR 1953 Madh-B 225 (B)' where it is observed that Courts outside Madhya Bharat State remained 'foreign' Courts till 1-4-1951. That Jamkhandi and Akalkot States merged in Bombay Presidency may be true; but the same cannot be said of the Madhya Bharat State. 13. Then, my attention is drawn to para.56 of 'AIR 1953 Madh-B 225 (B)' where it is observed that Courts outside Madhya Bharat State remained 'foreign' Courts till 1-4-1951. In my opinion, the essential fact is overlooked here that the Constitution is supreme and that as soon as it came into force in this State by virtue of the Proclamation of the Rajpramukh, this State became part and parcel of the territory of India and the citizens of Madhya Bharat became citizens of India, and all the Courts in the territory of India, outside this State, ceased to be foreign Courts and became domestic Courts; and any provision contrary to it in any local law became to that extent void and inoperative. 14. Under these circumstances, I think that the judgment to which I have just referred deserves reconsideration. Therefore the following question be referred to the Full Bench: "Whether a decree passed by a Court in the territory known formerly as British India against a person who had not submitted to its jurisdiction can be executed in the Courts of this State after 26-1-1950? And whether 'AIR 1953 Madh-B 225 (B)' has rightly decided this point?" Let the papers be laid before the Chief Justice for constituting the Bench. DIXIT, J.:- 15. If the decision in 'AIR 1953 Madh-B 225 (B)' is held applicable in this case, then this appeal must be rejected. But Mr. Bhagwan Das Gupta for the appellant contended that the correctness of that decision ought to be re-examined in the light of the decisions of the Calcutta and Rajasthan High Courts reported in - 'Owners and Partners of the firm named Shah Kantilal v. Dominion of India, Owning E.I. Rly.', AIR 1954 Cal 67 (L) and - 'Shah Premchand v. Shah Danmal', AIR 1954 Raj 4 (N). It was also said that the decision in 'Lunaji's case (B)' cannot be applied here, where the decree under execution had become inoperative in the territory of the former Gwalior State, as no suit was filed to enforce the decree in Gwalior State within the period of limitation preserved in the Gwalior State. We are bound by the decision in 'Lunaji's case (B)', until it is overruled. We are bound by the decision in 'Lunaji's case (B)', until it is overruled. My learned brother thinks that it was not correctly decided and cannot be applied here. Whether I agree or disagree with him in this view, the question has now to be decided by a Full Bench. I must, however, say that the question whether the principle of 'Lunaji's case (B)' can be applied to the execution of decree which under the law of limitation in Gwalior State had become inoperative, is not free from difficulty. As this question has arisen in numerous cases, I think it is desirable that it should be settled once for all by a Full Bench. For these reasons I agree with my learned brother that this case ought to be placed before my Lord the Chief Justice for the constitution of a Full Bench for considering the question formulated by him and more specifically the question whether the principles of 'Lunaji's case (B)' can be applied to a decree which had become inoperative in the former Gwalior State under the law of limitation then in force and long before the formation of Madhya Bharat and the coming into force of the Indian Civil Procedure Code on 1-4-1951. OPINION OF THE FULL BENCH SAMVATSAR, J.:- 16. The question referred to this Full Bench is as follows: "(1)Whether a decree passed by a Court in the territories known formerly as British India against a person, who had not submitted to its jurisdiction, can be executed in the Courts of this State after 26-1-1950? And whether the case of 'AIR 1953 Madh-B 225 (B)' has rightly decided this point?" 17. The facts of the case which have given rise to this reference are brief and lie within narrow compass. The respondents obtained an ex parte decree against the appellant on 22-12-1941, in the Court of the Munsiff at Kasganj, in the District of Aligarh, in Uttar Pradesh. The respondents filed an application for execution of this decree in 1944 and again in 1947 in the Court at Kasganj. On 7-12-1949, they filed a third application wherein they prayed that the decree should be transferred to the Civil Judge, Gwalior, for execution as the judgment-debtor had property within the jurisdiction of that Court and the Kasganj Court granted that prayer and transferred the decree for execution on 8-2-1950. On 7-12-1949, they filed a third application wherein they prayed that the decree should be transferred to the Civil Judge, Gwalior, for execution as the judgment-debtor had property within the jurisdiction of that Court and the Kasganj Court granted that prayer and transferred the decree for execution on 8-2-1950. The present execution application was filed in the Court of the Civil Judge, Gwalior, thereafter. The appellant objected to the execution of the decree contending inter alia that it was an absolute nullity having been passed by a Court which was then a foreign Court, to the jurisdiction of which he had not submitted. The Civil Judge overruled the objection and his order was upheld in appeal by the District Judge Gwalior. The judgment-debtor therefore preferred a second appeal. 18. A Division Bench of this High Court has in AIR 1953 Madh-B 225 (B), held that decree passed by a Court in British Indian territory prior to 26-1-1950 against a subject of the former Indian State, who had not submitted to the jurisdiction of that Court, could be executed by the Courts of this State after the Constitution came into force. The leading judgment on this point on which reliance was placed by the Division Bench in - 'Kunaji's case (B)' and which takes the view that such a decree could be executed is the judgment of the Full Bench of the Bombay High Court in AIR 1951 Bom 125 (C). A contrary view has been expressed by the Mysore High Court in AIR 1952 Mys 69 (F), which was not followed in the - 'Lunaji's case (B)'. After the decision of - 'Lunaji Narayan's case (B), the Calcutta High Court in AIR 1954 Cal 67 (L) and the Rajasthan High Court in AIR 1954 Raj 4 (M), followed the Mysore case and expressed their dissent from the view taken by the Full Bench of the Bombay High Court in AIR 1951 Bom 125 (C). The learned Judges of the Division Bench who heard this appeal felt that the view taken by this Court in - 'Lunaji Narayan's case (B)' should be reconsidered in the light of the aforesaid decisions of the Calcutta and Rajasthan High Courts. 19. In the days of British Rule in India, the Gwalior State claimed full internal sovereignty within its territories. 19. In the days of British Rule in India, the Gwalior State claimed full internal sovereignty within its territories. The State had its own separate laws which were administered within its territories by the Courts constituted by the Maharaja Scindia. The Gwalior State acceded to the Dominion of India after the Indian Independence Act of 1947 was passed but the accession was confined to certain matters only. In June 1948, Gwalior State integrated with several other States and became a part of newly formed State, "The United State of Gwalior Indore and Malwa (MADHYA BHARAT)" which also in its turn acceded to the Dominion of India. On 26-1-1950, the State of Madhya Bharat became a part of the Indian territories as one of the part "B" States and the subjects of the former Gwalior State obtained the rights of citizenship in the territories of India. 20. It was not disputed during the arguments that the decree which was being executed was when passed a decree of a Court to which the defendant had neither agreed to submit nor had in fact submitted. The first question that therefore arises for consideration is whether this decree was an absolute nullity, which created no obligation of any sort and could therefore be ignored or disobeyed. 21. It was argued on behalf of the appellant that the decree of the Kasganj Court was a nullity and reliance was placed on the well known case of 21 Ind App 171 (PC) (A)'. It was a case where the Raja of Faridkota had obtained two ex parte judgments from the Courts of that State against one Beersingh, the father of the appellant, for a large sum. On the basis of these judgments the Raja brought two suits against Beersingh in the Court of the Assistant Commissioner at Lahore. These suits were dismissed by the trial Court and its decision was upheld in appeal. The Raja approached to the Chief Court of the Punjab which took a different view and allowed the appeals. Beersingh having died during the interval, the appellant appealed to the Privy Council. Their Lordships reversed the judgments of the High Court and confirmed the decree passed by the lower Courts. The principle which their Lordships laid down is to be found at page 185 in the judgment of Lord Selborne. Beersingh having died during the interval, the appellant appealed to the Privy Council. Their Lordships reversed the judgments of the High Court and confirmed the decree passed by the lower Courts. The principle which their Lordships laid down is to be found at page 185 in the judgment of Lord Selborne. It is as follows: "All jurisdiction is properly territorial and 'extra territorium jus dicenti impune non paretur'. Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory and it may be exercised over moveables within the territory and in question of status or succession governed by domicil, it may exist as to persons domiciled, or who when living were domiciled, within the territory. As between different provinces under one sovereignty (e.g., under the Roman Empire) the legislation of the sovereign may distribute and regulate jurisdiction; but no territorial legislation can give jurisdiction which any foreign Court ought to recognise against the foreigners who owe no allegiance or obedience to the power which so legislates. In personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absence by a foreign court, to the jurisdiction of which the defendant has not in anyway submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it, and it must be regarded as a mere nullity by the courts of any nation except (when authorised by special local legislation) in the country of the forum by which it was pronounced. These are doctrines laid down by all the leading authorities on international law, among others, by Story (Conflict of laws, 2nd Edn., Ss. These are doctrines laid down by all the leading authorities on international law, among others, by Story (Conflict of laws, 2nd Edn., Ss. 546, 549, 553, 554, 556 and 586), and by Chancellor Kent (Commentaries, Vol.1, p.284, note c, 10th Edn.), and no exception is made to them in favour of the exercise of jurisdiction against a defendant not otherwise subject to it, by the Courts of the country in which the cause of action arose, or (in cases of contract) by the Courts of the 'locus solutionis'." A year before the decision of the 'Farid Kota's case (A)' the Privy Council had decided the case of '(1893) AC 339 (K)'. The main question argued in that case was whether the Legislature of New Zealand could authorise the Court of that country to entertain suits against absentee foreigners. The rule which was the subject-matter of discussion was rule 53 under the heading "proceedings without service" and was to the following effect: "In actions founded on any contract made or entered into or wholly or in part to be performed within the colony, on proof that any defendant is absent from the colony at the time of the issuing of the writ and that he is likely to continue absent and that he had no attorney or agent in the colony known to the plaintiff who will accept service, the Court may give leave to the plaintiff to issue a writ and proceed thereon without service." 22. It was held by their Lordships that the legislation authorising the local courts in case of a contract made or to be performed in the colony, to decide whether they will or will not proceed in the absence of the defendant is 'intra vires' and reasonable. It was further held that whether a judgment against an absentee, without service of the writ, will be enforced by the Courts of another country, is a matter for those Courts to determine and does not affect the validity of the local law. 23. These decisions clearly indicate that it is permissible for the Legislature of a country to direct its Courts to entertain actions against absentee foreigners and that it is not necesasry for them to consider whether and if so to what extent the Courts of other countries will treat their decisions as binding and conclusive. 23. These decisions clearly indicate that it is permissible for the Legislature of a country to direct its Courts to entertain actions against absentee foreigners and that it is not necesasry for them to consider whether and if so to what extent the Courts of other countries will treat their decisions as binding and conclusive. A decree or judgment passed against a foreigner who had not submitted to the jurisdiction of the tribunal and was out of the country of the Court when the proceedings were commenced is a nullity according to the principles of international law but is all the same good and effective and can be enforced in the country provided there was special legislation which authorised its Courts to entertain such an action. It is not an absolute nullity in the sense that it creates no obligations of any sort and is absolutely incapable of execution even in the country of the forum which passed it. 24. Next question for consideration then is if there was any special legislation in British India. It was contended that there was no such special legislation enacted by the Legislature which conferred jurisdiction on the Courts in India to entertain suits against absentee foreigners and it is urged that S.20 (c) Civil P.C., which corresponded to S.17 of the Code of 1882 did not constitute such a special legislation. Two arguments are advanced to support this contention: "(1) that the Privy Council has not accepted the view of Sir Merydith Plowden in the 'Faridkote', case, that S.17 of the Code conferred jurisdiction on the Court against a foreigner and (2) that S.20 (c) only referred to the place of suing and had nothing to do with jurisdiction against foreigners." These contentions are in my opinion not tenable. In the 'Faridkote case (A)' the Privy Council were dealing with the effect of the judgment of the Faridkote State Court from the international point of view and did not agree with the opinion of the learned Chief Justice of the Punjab Court that the accrual of the cause of action furnished jurisdiction according to international law. In the 'Faridkote case (A)' the Privy Council were dealing with the effect of the judgment of the Faridkote State Court from the international point of view and did not agree with the opinion of the learned Chief Justice of the Punjab Court that the accrual of the cause of action furnished jurisdiction according to international law. I am fortified in this view by the observations of their Lordships in - 'Annamalai Chetty v. Murugasa Chetty', 30 Ind App 220 (PC) (N)', where their Lordships approved the decision of the Bombay High Court in - 'Girdhar Damodar v. Kassigar Hiragar', 17 Bom 662 (O), and observed as follows: "Their Lordships see no reason for doubting the correctness of the case of - 'Girdhar Damodhar v. Kasigar Hiragar (O), where the defendant was a native of Cutch and the cause of action arose within the local limits of the jurisdiction of the British Indian Courts in which the action was brought." 25. The High Courts in India have almost unanimously held that S.20 (c), Civil P.C., was a special legislation by which the Legislature conferred authority on the Courts in India to try suits against absentee foreigners provided the cause of action has accrued wholly or in part within the limits of their territorial jurisdiction. A contrary view was taken by a single Judge of the Bombay High Court in the case of - 'Kessoji Damodar v. Khimji Jairam', 12 Bom 507 (P). It was a case where a person who was not a resident of British India was sued in the High Court at Bombay on the basis of the fact that he had carried on a branch business at Bombay through an agent. The suit related to some property at Zanzibar and admittedly the cause of action had not accrued within the jurisdiction of the Bombay High Court. On an objection being raised to the jurisdiction, Scott J., held that the High Court had no jurisdiction to entertain the claim. The learned Judge has observed that foreigners should be excluded from the operation of S.17 which corresponds to S.20 of the present Code, as, "to do otherwise would be violation of the rule that any statute is to be interpreted and applied so far as the language admits, so as not to be inconsistent with the comity of nations or with the established rule of the international law." 26. This case was dissented from and practically overruled by a Division Bench consisting of Sargent, C.J. and Starling J. in 17 Bom 662 (O)'. This was a case where the defendant, a resident of the Cutch, had carired on business at Bombay through a Munim. A suit was filed against him in the Court of Small Causes at Bombay. One of the defences raised was that the Court had no jurisdiction to entertain the suit as the defendant was a foreigner. The Judge did not accede to this contention but at the request of the defendant submitted the case for opinion to the High Court. Sargent C.J. relied on the observations of Lord Esher M.R. in the important case of - 'Compania de Mocambique v. British South Africa Co.,', (1892) 2 QB 358 at p.394 (Q), that: "The question whether Courts of nation will or will not entertain jurisdiction of any dispute is to be determined exclusively by the nation itself i.e. by its municipal law. If by express legislation the Courts are directed to exercise jurisdiction, the Courts must obey. If there is a proper inference to the same effect, the result is the same." The Chief Justice with whom the other learned Judge agreed was of the opinion that it was the duty of the Court acting in exercise of the statutory enactment to give effect to it, it being immaterial whether the judgment rendered would be recognised by foreign Tribunals. The learned Judges therefore arrived at the conclusion that the Court of Small Causes at Bombay was justified in entertaining the claim and the suit was properly instituted. 27. In 'Ram Rauji v. Pralhad Das', 20 Bom 133 (R), another Division Bench of the Bombay High Court followed the view taken in - 'Gardhar Damodardas v. Kassigar', (O), which was later on held by the Privy Council them- selves in 30 Ind App 220 (PC) (N)', to have been correctly decided. In 20 Bom 133 (R)', the question whether the British Indian Courts had jurisdiction to entertain an action against a resident of another State, when cause of action had accrued either wholly or in part within the jurisdiction of that Court directly arose for consideration. That was a case in which the defendant, who was a resident of Gwalior drew a hundi at Gwalior on his own firm at Bombay, in favour of one Damodar Sukhlal. That was a case in which the defendant, who was a resident of Gwalior drew a hundi at Gwalior on his own firm at Bombay, in favour of one Damodar Sukhlal. This party endorsed the hundi in plaintiff's favour at Gwalior and the plaintiff thereafter sent it for collection through the Bank of Bombay. The hundi was not honoured and the plaintiff brought a suit. Previously to the filing of this suit the defendant had ceased to carry on business at Bombay. The defendant contended that the Bombay High Court had no jurisdiction to entertain the suit inasmuch as the defendant was a foreigner and at the date of the suit did not carry on business at Bombay. Farran Chief Justice and Tyabji, J. held that the several heads of jurisdiction specified in Cl.12 of the Letters Patent which is obviously worded as S.20, Civil P.C., were applicable to actions where a foreigner is a defendant. The High Court of Allahabad endorsed this view in the case of - 'Gaekwar Baroda State Railway v. Habibulla', AIR 1934 All 740 (S). Niyamatullah J., reviewed the entire case law on the subject and held that subject to anything that may be said as regards the Indian Legislature having power to make laws affecting the right of the foreigners, a Court in British India could not disclaim jurisdiction against them if the plaintiff's cause of action wholly or in part arose within its jurisdiction. The learned Judge further held that whatever may the sanctity attaching to its decree whenever it is questioned in foreign country, the Court which is required to pass it or any other Court similarly situated cannot disregard the law made by the Indian Legislature. 28. The High Court of Madras has similarly held in - 'Neelakanda Pillai v. Kunju Pillai', AIR 1935 Mad 545 (T), that the British Indian Court, having regard to S.20 (c), Civil P.C., can pass a decree against a non-resident foreigner when cause of action arose within its limits. The learned Judge placed reliance in support of his opinion on the authority of 17 Bom 662 (O)'. 29. The Full Bench of High Court of Bombay in ' AIR 1951 Bom 125 (C)', has proceeded in the same view. The learned Judge placed reliance in support of his opinion on the authority of 17 Bom 662 (O)'. 29. The Full Bench of High Court of Bombay in ' AIR 1951 Bom 125 (C)', has proceeded in the same view. The High Court of Rajasthan in - 'Radheyshiam v. Firm Sawai Modi Basdeo Prasad', AIR 1953 Raj 204 (U), has likewise held that by enacting S.20 (c), Civil P.C., the Indian Parliament has conferred jurisdiction on Courts in India to entertain suits against non-resident foreigners who have not submitted to their jurisdiction, whenever requirements prescribed by that section are satisfied. 30. The authorities thus are overwhelmingly in favour of the view that S.20 (c), Civil P. C., of 1908 is a special local legislation and it has empowered the Courts in British India to entertain suits against absent foreigners, where cause of action has accrued within the limits of their territorial jurisdiction. A judgment pronounced by any such Court is not and cannot be treated as an absolute nullity for all purposes. It is enforceable in the country of the Court which passed it. It is a nullity only from the point of view of international law and it is only a foreign Court that can refuse to execute it. 31. Having thus reached the conclusion that the judgment and decree of a foreign Court to the jurisdiction of which the defendant had not submitted is not an absolute nullity and the Courts of the country in which it was passed are entitled to give effect to it, it is necessary to consider whether the decree in the present case can now be treated as a decree passed by a foreign Court. 32. On 26-1-1950, the Indian Constitution came into force and the States which were hitherto only acceding States became part and parcel of the territories of India. The subjects of the former Indian State became on this date citizens of India along with those who were at one time the subjects of British India. The laws prevailing in different parts of the country and the courts which administered them were continued by the virtue of the express provisions in Arts.372 and 375 of the Constitution of India. The subjects of the former Indian State became on this date citizens of India along with those who were at one time the subjects of British India. The laws prevailing in different parts of the country and the courts which administered them were continued by the virtue of the express provisions in Arts.372 and 375 of the Constitution of India. The Courts in the old Gwalior and other States continued to function under the terms of the Constitution and administered the old law by reason of the expression of its will by the new sovereign, the Republic or the Union of India. It is true that when territories governed by a system of civil law are acquired by a new sovereign, the laws prevailing in the territories so acquired continue to apply and that too under the principles of international law. There is no presumption that the old laws have been continued because of the will of new sovereign though the new sovereign could substitute them by fresh legislation. In the present case the old laws were continued not by reason of the principles of International law but under the express provisions of the Constitution. The fact that the different laws in force in different States were continued and the Courts in the country administered them did not militate against the principle of common sovereignty. A common sovereign may by legislation distribute and regulate jurisdiction between different units of the same State and there is nothing therein which is repugnant to the principles of international or any other law. 33. But in such a case there will be no scope for applying the principles of international law. The laws to be applied in such cases are the municipal laws of the State and the considerations which arise under the international law are not material. The Court which passed the decree and the Court to which it is transferred for execution have by reason of the constitutional changes ceased to be Courts constituted or continued by different sovereigns and the laws administered by them can no longer be treated as laws enacted by different sovereign States. 34. The Court which passed the decree and the Court to which it is transferred for execution have by reason of the constitutional changes ceased to be Courts constituted or continued by different sovereigns and the laws administered by them can no longer be treated as laws enacted by different sovereign States. 34. Before proceeding to discuss whether the decree in the present case is a decree of a foreign Court as defined by the Civil Procedure Code, it will be useful to note two decisions of the High Courts in India which have a bearing on the subject and which indicate the point of time that should be material for consideration of this aspect. In the case of - 'Dominion of India v. Hiralal Bothra', AIR 1950 Cal 12 (V), the High Court of Calcutta had to consider converse case. In that case a decree was passed by the Court at Jamalpur before 1947 and was transferred for execution by that Court to Calcutta after 15-1-1947. As a result of the partition of the country Jamalpur had become a part of Pakistan and on the date the Court was called upon to execute the decree Jamalpur Court was situated in a foreign State. Question arose as to whether decree could be executed within the territories of the Dominion of India. The learned Judges of the Division Bench of the High Court were of the opinion that whether a particular Court is or is not a foreign Court in relation to another is to be ascertained and determined with reference to the law now in force and as under the altered constitutional position. Accordingly the learned Judges treated the decree which was sought to be executed as being based on a judgment of a foreign Court and refused to execute it. 35. This aforesaid Calcutta case was followed in - 'Said-ul-Hamid v. Federal India Assurance Co. Ltd.', AIR 1951 Punj 255 (W). It was also a case where decree to be executed was passed by a Court at Lahore before the partition of the country in 1947. The Lahore Court transferred the decree for execution to Delhi and it was put in execution after 15-8-1947. Ltd.', AIR 1951 Punj 255 (W). It was also a case where decree to be executed was passed by a Court at Lahore before the partition of the country in 1947. The Lahore Court transferred the decree for execution to Delhi and it was put in execution after 15-8-1947. Harnam Singh, J. held that from 15-8-1947, the Lahore Court which passed the decree had become a foreign Court and the judgment on the basis of which the decree now under execution was passed was a foreign judgment. 36. The High Court of Mysore has taken the view in AIR 1952 Mys 69 (F), that the validity of the decree for its execution should be determined by reference to the law in force at the date of the passing of the decree and the learned Judge of the Rajasthan High Court, who decided the case of ' AIR 1954 Raj 4 (M)', and the learned Single Judge of the Calcutta High Court, who decided the case of ' AIR 1954 Cal 67 (L)', have endorsed that view. These decisions further proceed on the principle that that which is void from its inception cannot be cured of its defect. It appears that the decision of the Division Bench of the Calcutta High Court in ' AIR 1950 Cal 12 (V)', and the decision of Harnam Singh, J. in 1951 Punj 255 (W)', were not referred to, during the arguments and have not been noted by the learned Judges. 37. A Full Bench of the High Court of Rajasthan in ' AIR 1953 Raj 204 (U)', preferred, to follow the Full Bench decision in ' AIR 1951 Bom 125 (C)', as against the Mysore case. This Full Bench decision of the Rajasthan High Court was also not brought to the notice of the learned Judges of the Division Bench who decided the case of AIR 1954 Raj 4 (M), and took quite an opposite view. 38. The Mysore case and the decisions which have followed it have proceeded on an assumption that the decree when it was passed was an absolute nullity and what was a nullity could not be treated as valid subsequently by reason of the constitutional changes. 39. 38. The Mysore case and the decisions which have followed it have proceeded on an assumption that the decree when it was passed was an absolute nullity and what was a nullity could not be treated as valid subsequently by reason of the constitutional changes. 39. It appears to me that it is too late to argue that a judgment pronounced by a British Indian Court against a subject of foreign State is an absolute nullity and can be disregarded by any Court whatsoever when called upon to execute it. It is not an absolute nullity and can be enforced in the country of the tribunal which pronounced it. The invalidity is not attached to the decree from its inception nor can it be said it is void ab initio. 40. On the whole I am therefore of the opinion that the validity of the decree is to be determined by reference to the law in existence on the date the Court is called upon to execute the decree and not as held by the learned Judges of the Mysore High Court, by reference to the position of the Courts on the date on which the decree is passed. 41. The Civil Procedure Code which was in force when the decree was put in execution was the Code of 1908 as adapted in Madhya Bharat by Act 70 of 1950. This defined the word "foreign Court" in S.2(5) and according to this definition "a foreign Court" was a court outside Madhya Bharat and not established or continued by the Government of Madhya Bharat. On 1-4-1951 this Code was repealed and the Code of 1908 was itself extended and applied to the whole of India including Part "B" States but excluding Jammu and Kashmir and certain specified parts, by Act 2 of 1951. The definition of the word "foreign Court" had necessarily to undergo a change and a foreign Court came to be defined as a Court outside India, which is not established or continued by the authority of the Central Government. This was the definition in force on the date the order under appeal was passed and on that day the decree sought to be executed was according to this definition not a decree based on a judgment of a foreign Court. This was the definition in force on the date the order under appeal was passed and on that day the decree sought to be executed was according to this definition not a decree based on a judgment of a foreign Court. This definition will apply to any execution that may be filed in Courts in Madhya Bharat after 1-4-1951 and should in my opinion govern the present proceedings. It is competent for the Courts to have regard to the law as it existed on the date of the passing of the order even in appeal and in my opinion the definition of the word "foreign Court" in the Code of 1908 as amended by Act 2 of 1951 should be applied in the present case. This would avoid unnecessary litigation and multiplicity of proceedings. 42. Mr. Patankar, the learned counsel who argued for the appellant, however contended that this could not possibly be done in view of the provisions of S.20 of the Act 2 of 1951 by which the Civil Procedure Code of 1908 was extended to Part "B" States. The learned counsel based his argument on what he called immunity or exemption from the enforcement of the decree of a British Indian Court. The learned Counsel argued that this was a vested right and was expressly saved by this provision in the amending Act. It is however desirable to note that the alleged exemption did not mean that the decree was absolutely and for ever incapable of enforcement against the judgment-debtor. The decree was good but could not be enforced against a foreigner in any country excepting that of the Court passing it. But when the sovereign who protected the defendant merged his territories and agreed that his subjects should be, treated as subjects of the sovereign in whose territories this decree was passed, the immunity which was attached to the person by reason of the defendant being a subject of different sovereign completely disappeared. 43. Immunity of this sort can hardly be called a vested right which means a right acquired under some statute or definite provision of municipal law. Whatever protection the defendant, who was a resident of this State formerly, had was by reason of his being a subject of another State and it was lost the moment that State became a part of Indian territory. Whatever protection the defendant, who was a resident of this State formerly, had was by reason of his being a subject of another State and it was lost the moment that State became a part of Indian territory. As the defendant became a citizen and the territories which were foreign possessions became part of India the bar of 'extra territorium jus dicenti impune non paretur' ceased to be operative and the defendant became amenable to the laws and legislative authority of the new State. The immunity which was thus attached to the person of the defendant so long as he managed to remain out of the country in which the decree was passed disappeared automatically and the defendant could then have no further safeguards excepting such as are conferred by the new State under its own municipal laws. This change in the status of the defendant is brought about by reason of the accession of the State and the constitutional changes consequent thereon and was certainly not affected by any statutory enactments. There was in my opinion no vested right nor has it been taken away by any statute. Section 20 of the Act No.2 of 1951 has therefore no application to this case. 44. Before closing I need refer to Art.261 of the Constitution on which reliance was placed by Mr. Anand Bihari Mishra for the decree-holders. Article 261 is as follows: "(1) Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. (2) The manner in which and the conditions under which the acts, records and proceedings referred to in Cl. (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament. (3) Final judgments or orders delivered or passed by Civil Courts in any part of the territory of India shall be capable of execution anywhere within the territory according to law." The contention of the learned counsel was that the decree sought to be executed being a decree of a Civil Court which now was in the territory of India ought to be executable, by virtue of this provision alone. This argument need not be examined in details in view of the observations of their Lordships in - 'Janardan Reddy v. State of Hyderabad', AIR 1951 SC 124 (X) where it has been held that the words "judgment and orders" passed by the Courts within the territories of India, have reference to judgments and orders passed after the Constitution came into force. 45. It was a case where leave to appeal to the Supreme Court was applied for under Art.136 of the Constitution of India against a judgment and sentence passed by the High Court of Hyderabad prior to 26-1-1950. The leave was refused and the application for leave was held not maintainable, as in their Lordships' opinion the expression "judgment or order of a Court within the territories of India" applies only to judgments and orders passed after the Constitution came into force. The language of Art.261(3) is similar and cannot be interpreted differently. In my opinion therefore Art.261(3) does not help the decree holder in this case. 46. But on the view I am taking on other points, my answer to the reference is in the affirmative. In my opinion the decree is executable and the case of - 'Lunaji Narayn v. Purshottam (B)' has been correctly decided. SHINDE, C. J.:- 47. I am in entire agreement with the view taken by my brother Samvatsar, J. NEWASKAR, J.:- 48. After we decided 'Lunaji's case (B)', the correctness of which is the subject matter of this reference, I noted a reference to the cases ' AIR 1951 Bom 190 (D)'; ' AIR 1950 Cal 12 (V)' and 'AIR 1951 Punjab 255 (W)' in the decision of their Lordships of Supreme Court in the case reported in - 'Kishorilal v. Sm. Shanti Devi', AIR 1953 SC 441 (Y). 49. The cases in ' AIR 1951 Bom 190 (D)' and ' AIR 1950 Cal 12 (V)', were relied upon by me to a certain extent in support of my reasoning that the decrees passed by the British Indian Courts can now be executed after the Constitution came into force in any territory which when the decree was passed was the territory of a former Indian State. 50. Their Lordships in that case were dealing with an order passed by a Magistrate at Lahore under S.488, Criminal P.C., on 29-3-1946 for payment to one Shanti Devi, Rs.70/- P.M. as maintenance allowance. 51. 50. Their Lordships in that case were dealing with an order passed by a Magistrate at Lahore under S.488, Criminal P.C., on 29-3-1946 for payment to one Shanti Devi, Rs.70/- P.M. as maintenance allowance. 51. This order which could, when, passed, be executed by the First Class Magistrate at Delhi under S.490, Criminal P.C., then in force prior to partition of Punjab was sought to be enforced after partition through that Court. 52. Such an enforceability of the order of a Magistrate passed by him when the Lahore Court was a domestic Court was challenged before their Lordships. Their Lordships held that there is nothing in the existing laws to render the enforceability of such an order illegal and held that the order was enforceable by the First Class Magistrate Delhi. 53. In Para 12 of their judgment their Lordships say: "The following cases were referred to in argument: ' AIR 1951 Bom 190 (D)'; AIR 1950 Cal 12 (V)'; - 'Muthukaruppan v. Sellami Achi', AIR 1938 Rang 385 (Z)', and 'AIR 1951 Punjab 255 (W)'. We do not intend to examine them because they are not cases under Ss.488 and 490, Criminal P.C., and it may be that special considerations apply in the provisions of law which the learned Judges had to apply in those cases. We think it would be undesirable to comment on them without a careful analysis of all the factors which obtained there. Such an analysis is not feasible in a case which relates to a different set of circumstances. All we need say is that if those decisions are not based on matters which are special to them and which do not apply here and the learned Judges intended to enunciate a general principle which would affect the rights of the parties before us, then, with the greatest respect, we consider that they are, to that extent, wrong." 54. I do not find in these remarks of their Lordships anything to justify me to alter my view on this topic. The matter no doubt is one of great importance and will be examined by their Lordships of the Supreme Court sooner or later. 55. Till their Lordships of Supreme Court lay down a contrary reasoning as the correct one I would stick to the reasoning adopted by me in 'Lunaji's case (B)', and affirmed by Samvatsar, J. in the present case. CHATURVEDI, J.:- 56. 55. Till their Lordships of Supreme Court lay down a contrary reasoning as the correct one I would stick to the reasoning adopted by me in 'Lunaji's case (B)', and affirmed by Samvatsar, J. in the present case. CHATURVEDI, J.:- 56. After hearing the arguments of the learned counsel on either side and after perusing the opinion of my learned brother Samvatsar, J. I have reached the conclusion that the view already expressed by me in the Order of Reference is correct that the ex parte decree of Kasganj Court against the defendant, who was, at the time of passing decree, a resident of Gwalior State, must be considered to be a nullity and cannot be executed in Gwalior Court. It is beyond dispute that at the time when the ex parte decree was passed by the Munsif of Kasganj on 22-12-41 Gwalior State was a foreign State and the decree of the Kasganj Court could not have been executed in Gwalior State as it was at that time an absolute nullity. The question of substance is, not whether a decree could have been passed by Kasganj Court or not, but whether an ex parte decree so passed is binding on the defendant in Gwalior Court. It is obvious, therefore, that the object of our inquiry must be as to whether the Court at Kasganj in Uttar Pradesh had any jurisdiction, from the point of view of Private International Law, to pass a decree against the defendant. It has been laid down in many cases, e.g., in - 'Pemberton v. Hughes', (1899) 1 Ch 781 at p.791 (Z1); - 'Firm Chormal Balchand v. Kasturichand', AIR 1938 Cal 511 (Z2), and in - 'Indian and General Investment Trust Ltd., v. Raja of Khalikote', AIR 1952 Cal 508 (Z3), that the question whether the foreign Court was a Court of competent jurisdiction must be determined not by the territorial law of the foreign State but by the rules of Private International Law. It is also well settled that a judgment, in 'personam', rendered in Courts in former British India was void in Gwalior State if the judgment was passed on the defendant 'in absentem' or if the judgment was not conclusive within the meaning of S.13, Civil P.C. There is also no doubt that even after formation of the Madhya Bharat State in 1948 and till 25-1-1950 the ex parte decree of the Kasganj Court could not have been executed in Madhya Bharat State. 57. The question then arises: whether there is anything in the Constitution of India which may indicate that the well-recognised principle of private international law was overthrown and a new rule was declared binding the citizens of this State to the ex parte decrees of former British Indian Courts when these decrees were null and void in private international law? In my opinion there is nothing in the Constitution of India to indicate that it regarded any evil in that provision of private international law or that it thought that any remedy was in fact called for, and therefore, in my judgment, the Constitution did not intend to overthrow the old rule. It follows that the ex parte decree of a foreign Court passed before January 1950 continued to be null and void even after 26-1-1950. In this connection it may be observed that the validity of every judgment depends upon the jurisdiction of the Court before it is rendered, not upon what may occur subsequently. If the ex parte decree is void at its inception it will always remain void. It cannot occupy the doubtful position of remaining void before 25-1-1950 and becoming valid afterwards. 58. In the Order of Reference I had refrained from making any reference to 'AIR 1934 All 740 (S); for, it had been set aside on the very first question by the Privy Council in - 'Gaikwad Baroda State Railways v. Habib-ul-haq', AIR 1938 PC 165 (Z4), and when a decision is set aside by a superior tribunal it is considered dead for all purposes, and in my opinion, it cannot be cited as an authority for any proposition enunciated therein. With very great respect, I may also observe that the view taken in this case about the Privy Council decision in '(1894) AC 670 (A)', is an extremely a narrow one. With very great respect, I may also observe that the view taken in this case about the Privy Council decision in '(1894) AC 670 (A)', is an extremely a narrow one. The questions of private international law and of a foreign judgment were dealt with by the Privy Council in that case on a very broad basis and it cannot be confined only to the facts of that case. To say that the decision should be seen only with reference to two Indian States and the Chief Court of Punjab is to misread the judgment. The Privy Council decision is quite clear on the point that there is no implied obligation on a foreigner to accept the 'forum loci contractus'. When action is personal the Privy Council clearly laid down that the Courts of the country in which the defendant resides have power and that ought to be resorted to do justice. This decision has been followed by many English, Indian, and Dominian Courts and must be treated as a leading case on the subject. 59. Much argument was addressed to us about the remarks of their Lordships of the Privy Council in 30 Ind App 220 (N)', about the correctness of the decision of 17 Bom 662 (O)', and it was urged that these remarks were sufficient to indicate that when a cause of action arises within the jurisdiction of a Court it can pass a decree against a foreigner absentee. In my opinion this is again a misreading of the second Privy Council case. To understand the implications of this decision it will be proper to narrate the facts of the Bombay case and then of the Madras case that went to the Privy Council. 60. In 17 Bom 662 (O)', the facts were that the defendant resided in Cutch but carried on business in Bombay by a Munim. The cause of action arose in Bombay. The question turned upon the interpretation to be placed on S.18 (1) of the Small Causes Courts Act (15 of 1882). The question that was referred to the High Court for opinion was: whether the Court of Small Causes had jurisdiction, the defendant not being a resident of Bomaby, or, a British subject, but a resident of Cutch, and no leave having been obtained to file this suit? The question that was referred to the High Court for opinion was: whether the Court of Small Causes had jurisdiction, the defendant not being a resident of Bomaby, or, a British subject, but a resident of Cutch, and no leave having been obtained to file this suit? It was held by the Bombay High Court that under S.18 (1), Small Causes Courts Act, the Small Causes Court in Bombay had jurisdiction to try a suit brought against the defendant in that Court. It was held that though the defendant resided outside the territorial limits of that Court yet he was "carrying on business' by a Munim, within the territorial limits of the Small Causes Court of Bombay. The question turned on the meaning of "carrying on business" and it was not disputed that carrying on business need not be personal. It was held that although it is true that a non-British subject, who does not personally carry on business within the territorial limits of the Court, does not make himself personally subject to the municipal law of British India, still, by establishing his business in British India, from which business he expects to derive profit, he accepts the protection of the territorial authority for his business and his property resulting from it, and may be fully regarded as submitting to the Courts of the country. It was further held that by enacting Cl. (b) of S.18, Small Causes Courts Act (15 of 1882), the Legislature intended to depart from the general territorial rule. The following remarks of Starling J. will make the matter clear: "Now it seems to me that, in this case, we have nothing to do with questions of international law. All we have to do is to determine whether the defendant is a person against whom the Legislature has permitted a suit to be filed in the Courts of this country, in which a decree can be passed and executed in this country against the property of the defendant within the jurisdiction, and against his person if he comes within the jurisdiction; and I am of opinion that the defendant, who admittedly has a firm-in Bombay in which he carries on business through his Munim, is such a person." It was this view that was approved by the Privy Council in 30 Ind App 220 (PC) (N)'. The facts of this Madras case were that on the basis of a judgment of the foreign Court at Pondicherry the plaintiff had sued the defendant in the District Court of South Arcot. The plaintiff had described the defendant as residing at Cuddalore and as carrying on business there. On the basis of the evidence adduced in the case their Lordships of the Privy Council came to the conclusion that the defendant never resided in British India, nor was there any evidence that the cause of action accrued from any transaction which took place there. It was proved that the defendant had relatives and a share of property in British India and that a cousin named Kandasami managed this property and paid money to the defendant. Their Lordships came to the conclusion that Kandasami was not agent of the defendant and that a Manager of the joint family property cannot be the agent of the members of the family, within the meaning of S.17, Civil P.C., 1882, so as to make them liable to be sued as if they were the principals of the manager. It was therefore held that the plaintiff, on whom the onus lay, had failed to prove that the defendant was, by his agent, carrying on business within the local limits. In dealing with this case, then, their Lordships observed at p.227: "In both Courts in India it was apparently assumed that the question of jurisdiction turned on S.17, Civil P.C., and that although the defendant was a foreigner, and although the cause of action arose in a foreign country, and although the defendant did not personally reside within the local limits of the jurisdiction of any Court in British India, and was not even temporarily in Arcot when sued there, yet he could be sued in the Arcot Court if he carried on business through an agent in the local limits of that Court's jurisdiction. This assumption appears to their Lordships to require more attention than it has received. Their Lordships see no reason for doubting the correctness of the decision of the case of - 'Girdhar Damodar v. Kassigar Hiragar', (O)', where the defendant was a native of Cutch, and the cause of action arose within the local limits of the jurisdiction of the British Indian Court, in which the action was brought. Their Lordships see no reason for doubting the correctness of the decision of the case of - 'Girdhar Damodar v. Kassigar Hiragar', (O)', where the defendant was a native of Cutch, and the cause of action arose within the local limits of the jurisdiction of the British Indian Court, in which the action was brought. But that case does not cover the present one." It is obvious that the 'cause of action' referred to above means only that cause of action that arises in connection with a business carried on by the agent in foreign territory and should not be confused with the general 'cause of action' mentioned in S.20 (c), Civil P.C. In this view of the matter it would appear that in this case there is nothing to indicate that the Privy Council expressed any dissent from the principle enunciated in 'Gurudayal Singh case (A)'. It follows that what their Lordships approved in Bombay decision was only the principle enunciated by the Bombay High Court that the word 'defendant' in Cl. (b) of S.18, Small Causes Courts Act (15 of 1882), includes foreign subjects among the defendants over whom the clause gives jurisdiction, if they carry on business by the agents within the territorial limits of the Court, and if the cause of action in connection with the business arises within the territorial limits of that Court. This principle is of wide application and has since then been incorporated in S.4 (2) (a) (v) of the Foreign Judgments (Reciprocal Enforcement) Act of 1922, (23 Geo. V.C. 13) which provides that the foreign Court shall be deemed to have jurisdiction if the defendant had an office or place of business in the foreign country and the proceedings were in respect of a transaction effected through or at that office or place. (See Dicey: Conflict of Laws, 6th Edn. p.355; and Cheshire: Private International Law, 3rd Edn., p.776). 61. There is nothing in this case to indicate that the Privy Council regarded that sub-Cl. (c) of S.20, Civil P.C., was one of the exceptions to the general principle enunciated in 1894 AC 670 (A)'. The rule is well-settled that a cause of action may arise in a foreign country but is not a general ground of jurisdiction recognised by the International Law (See '(1899) 1 Ch. (c) of S.20, Civil P.C., was one of the exceptions to the general principle enunciated in 1894 AC 670 (A)'. The rule is well-settled that a cause of action may arise in a foreign country but is not a general ground of jurisdiction recognised by the International Law (See '(1899) 1 Ch. 781 (Z1)'; 'AIR 1938 Cal 511 (Z2)', and para 31 of AIR 1952 Cal 508 (Z3)'. Then, Ex parte Blain '(1879) 12 Ch. D.522 (Z5)', clearly shows that any departure from the ordinary principles of jurisdiction requires the sanction of express legislation, and that mere general words are not sufficient. The words of sub-Cl. (c) of S.20, Civil P.C., are mere general words and cannot be construed to be express legislation empowering the Courts in British India to pass decrees against the absentee foreigners. 62. The statement of law that a judgment in personam against the absentee foreigner is valid within the State but is void without the State where the judgment was rendered is open to serious objection. The question came up directly in - 'Pennoyer v. M. Neff', (1877), 95 U.S.714 : 24 Law Ed 565 (Z6). Mr. Justice Field who delivered the judgment of the Supreme Court observed (at page 572, Column 1 of 24 Law Edition): "In several of the cases, the decision has been accompanied with the observation that a personal judgment thus recovered has no binding force without the State in which it is rendered, implying that in such State it may be valid and binding. But if the Court has no jurisdiction over the person of the defendant, by reason of his non-residence, and, consequently, no authority to pass upon his personal rights and obligations; if the whole proceedings, without service upon him or his appearance, is 'coram non judice' and void; if to hold a defendant bound by such a judgment is contrary to the first principles of justice, it is difficult to see how the judgment can legitimately have any force within the State. The language used can be justified only on the ground that there was no mode of directly reviewing such judgment or impeaching its validity within the State where rendered; and, that, therefore, it could be called in question only when its enforcement was elsewhere attempted. The language used can be justified only on the ground that there was no mode of directly reviewing such judgment or impeaching its validity within the State where rendered; and, that, therefore, it could be called in question only when its enforcement was elsewhere attempted. In later cases, this language is repeated with less frequency than formerly, it beginning to be considered, as it always ought to have been, that a judgment which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute nullity, because rendered without any jurisdiction of the tribunal over the party, is not entitled to any respect in the State where rendered. - 'Smith v. McCutchen', 38 Mo., 415 (Z7); - 'Dattance v. Preston', 18 Low 396 (Z8); - 'Hakes v. Shupe', 27 Low 465 (Z9); - 'Mitt-hell v. Gray', 18 Ind., 123 (Z10)." This view has since then been followed in America (See page 392 of - 'Baker v. Baker', Eccles and Co., (1917) 61 Law Edn. 386 (Z11). Even Courts of the State where such judgments are rendered against non-residents, in actions in personam, have set aside such judgments. 63. On behalf of the decree-holders, Mr. Anand Behari Mishra contended that Art.261 of the Constitution of India validated all the ex parte decrees passed in British Indian Courts against absentee defendants who were residents in recognised foreign Indian States. I cannot subscribe to that view; for, there is nothing in this Article to that effect, and I agree with my learned brother Samvatsar, J. that Cl. (3) of this Article refers only to those judgments and orders which are passed after 26-1-1950. Then the words "final judgments or orders", "capable of execution", and "according to law" in this clause are important and exclude from its ambit those judgments which are inconclusive or which are passed without jurisdiction. This Article provides a rule similar to that of Article IV, Sec.1 of the Constitution of the U.S.A. but Cl. (3) makes the rule much broader than its counterpart in U.S.A. and provides that any final judgment will be capable of execution in any State within India 'according to law'. The words 'according to law' are again very important. They are used in a broad sense and have a wide import. (3) makes the rule much broader than its counterpart in U.S.A. and provides that any final judgment will be capable of execution in any State within India 'according to law'. The words 'according to law' are again very important. They are used in a broad sense and have a wide import. 'Law' must be construed to mean not only rules of municipal law but also principles of private international law. A hypothetical case may make my meaning clear. A decree is today passed ex parte against a citizen of India by a Munsiff's Court in Pakistan. Tomorrow, by a treaty, if the territorial limits of that Munsiff's Court are ceded to India and that Court becomes a domestic Court, the ex parte decree will not be capable of execution "according to law". 64. In America, the States of Union are for most purposes in conflict of laws, treated as foreign to each other; but the "full faith and credit" clause has the effect of putting a sister State judgment on a different basis from that of a foreign judgment. The position is succinctly stated by Willis on Constitutional Law, at pp. 455, 456, in the following words: "A judgment rendered without jurisdiction over the person or the subject matter is not entitled to the protection of the full faith and credit clause. Before 1868 when the due process clause of the Fourteenth Amendment was introduced into Constitutional Law, this result had to be reached on the principle of international law that the judgment is not worthy of the name of the judicial proceeding; but after 1868 this result was reached on the principle of due process of law. A judgment rendered without jurisdiction over the defendant in accordance with the fundamental principles of conflict of laws is not due process of law. Such a judgment is entitled to no respect in the State where rendered and therefore it is not entitled to respect in other State." 65. A judgment rendered without jurisdiction over the defendant in accordance with the fundamental principles of conflict of laws is not due process of law. Such a judgment is entitled to no respect in the State where rendered and therefore it is not entitled to respect in other State." 65. The principle is similar to that enunciated by the Privy Council in - 21 Ind App 171 (PC) (A)', that the plaintiff must sue in the Court to which the defendant is subject at the time of the suit-a rule which is stated by Sir Robert Phillimore (International Law, Vol.4, S.891) "to lie at the root of all international and of most domestic jurisprudence on this matter." That was the course which the decree-holder in this case ought to have followed, if he desired a remedy against the defendant personally. If he did not take that course and filed a suit in Kasganj Court, the defendant, even if served, was not bound to go there and a decree ought not to have been passed against him without hearing him. If a decree is passed against him that must be held to be without jurisdiction. In - Old Wayne Mutual Life Asccn. v. Mc'Donough', (1906) 204 US 27 (Z12), Mr. Justice Harlan delivering the judgment of the Supreme Court quoted with approval the following extract from a previous judgment in - 'Galpin v. Page', (1876) 21 Law Ed 959 (Z13): "It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has his day in court; by which is meant until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered." 66. The same view was expressed in another form in- '(1917) 242 US 394: 61 Law Ed 386 at p.403 (Z11)', when Mr. Justice Pitney delivering the opinion of the Court observed: "The fundamental requisite of due process of law in judicial proceedings is the opportunity to be heard. To hold one bound by the judgment who has not had such opportunity is contrary to the first principles of justice. Justice Pitney delivering the opinion of the Court observed: "The fundamental requisite of due process of law in judicial proceedings is the opportunity to be heard. To hold one bound by the judgment who has not had such opportunity is contrary to the first principles of justice. And to assume that a party resident beyond the confines of a State is required to come within its borders and submit his personal controversy to its tribunals upon receiving notice of the suit at the place of his residence is a futile attempt to extend the authority and control of a State beyond its own territory." 67. Chief Justice Marshall has long before observed in - 'Rose v. Himely', (1856) 4 Cranch 241 at p.269 : 2 Law Ed 608 at p.617 (Z14) that, upon principle, the operation of every judgment must depend upon the power of the Court to render that judgment. From the point of view of private international law the validity of a judgment in an action in personam must, in all cases, be founded upon one or other of two principles, (1) the principle of effectiveness, or, (2) the principle of submission (Cheshire: Private International Law, 3rd Edn., page 139). As Dr. Cheshire points out the principle of effectiveness means that a judge has no right to pronounce a judgment if he cannot enforce it within his own territory. A decree cannot therefore be passed, if at the time of the service of the writ, the defendant does not reside within such jurisdiction and is a foreigner, unless, of course, he submits to the jurisdiction of a foreign Court. If he does not submit to the foreign Court the decree, if passed, will not be effective and will not be capable of execution in the territorial limits of the Court where the defendant resides. If after some time the foreign Court becomes a domestic Court, even then the decree will remain incapable of execution. If he does not submit to the foreign Court the decree, if passed, will not be effective and will not be capable of execution in the territorial limits of the Court where the defendant resides. If after some time the foreign Court becomes a domestic Court, even then the decree will remain incapable of execution. To say that formerly there remained only an impediment in execution of the decree which disappears as soon as the status of the defendant changes is to ignore those first principles of justice which require a person to have the opportunity of being heard before he can be conclusively bound by the result of the suit and also those fundamental principles of international law which protect persons and property within one State from the exercise of jurisdiction over them by another. 68. In this view of the matter I am of opinion that the case of - 'AIR 1953 Madh B 225 (B)' does not correctly state the law and a decree passed by a former British Indian Court against a citizen of former Gwalior State, who had not submitted to its jurisdiction, cannot now be executed in the Courts of this State. DIXIT, J.:- 69. I have had an opportunity of reading in advance the opinion recorded by my learned brother Samvatsar, J. I regret, I do not feel able to concur in the view that the ex parte decree passed by the Court of Munsiff at Kasganj on 22-12-1941 against the appellant who was admittedly a foreigner qua the Kasganj Court and who had not submitted himself to its jurisdiction, has become enforceable in this State after 26-1-1950. 70. There can be no dispute as to the principle of Private International Law that the Court will not enforce any foreign judgment if it has not been pronounced by a Court of competent jurisdiction. The position with regard to jurisdiction in the case of foreign judgments has been made clear in - 22 Cal 222 (PC) (A)' and in - '(1908) 1 KB 302 (I)'. The position with regard to jurisdiction in the case of foreign judgments has been made clear in - 22 Cal 222 (PC) (A)' and in - '(1908) 1 KB 302 (I)'. In - 'Gurudayal Singh's case (A)', after stating the circumstances in which a foreign Court has jurisdiction in an international sense in a personal action, the Privy Council laid down the rule as follows: "In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced 'in absentem' by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it; and it must be regarded as mere nullity by the Courts of every nation except (when authorised by special local legislation) in the country of the forum by which it was pronounced." 71. The general principle laid down by the Privy Council is that cause of action is not a general ground of jurisdiction recognized by International Law, but nevertheless if the Legislature of a country has by express legislation empowered its Courts to try suits against nonresident foreigners, when the cause of action has arisen, within its limits, the Courts must administer and obey the local law. It is another question how far the Courts may be in a position to enforce their decrees, or how far such decrees may be recognized by the Courts of foreign countries. The question whether the Kasganj Court could under S.20(c) of the Indian Civil Procedure Code pass a decree against a nonresident foreigner when the cause of action had arisen within its limits, seems to me to be concluded by the Privy Council decision in - 26 Mad 544 (PC) (N)', where the decision of the Bombay High Court in - 17 Bom 662 (O)' was upheld by the Privy Council by the following observation: "Their Lordships see no reason for doubting the correctness of the decision of the case of - 'Girdhar Damodar v. Kassigar Hiragir (O)', where the defendant was a native of Cutch and the cause of action arose within the local limits of the jurisdiction of the British Indian Court in which the action was brought." 72. It is true that in - 26 Mad 544 (PC) (N)', there is no reference to the statement of the law enunciated in the case of - 'Gurudayal Singh (A)' that the accrual of cause of action in a particular case did not confer on the Courts of that place jurisdiction over a non-resident foreigner. But that does not relieve us from the necessity of being ruled on the point by the pronouncement of the Judicial Committee in - 26 Mad 544 (PC) (N)'. The question whether the Kasganj Court, having regard to S.20(c), Civil P.C, could pass a decree against a non-resident foreigner when the cause of action had arisen within its local limits, is, however, in my opinion, not very material here. As I will endeavour to show presently the jurisdiction that is important here is the competence of the Court in an international sense. 73. It has not been disputed before us that at the time of the passing of the decree the judgment-debtor appellant was a foreigner in relation to Kasganj Court and that according to the principles of private International Law referred to above, the decree was not a decree of a Court of competent jurisdiction in an international sense and that as such it was not capable of enforcement in the Courts of this State before 26-1-1950. The question, therefore, is whether the decree under consideration has lost its "foreign character" after 26-1-1950. On what principle is it to be answered? The cases - ' AIR 1951 Bom 125 (C)' and - ' AIR 1951 Bom 190 (D)', which have been followed by a Division Bench of this Court in - 'AIR 1953 Madh B 225 (B)' and on which my learned brother Samvatsar, J., has founded his conclusion, take the view that although a Court may not be a competent Court qua a particular judgment-debtor, if the status of the judgment-debtor alters by subsequent events and the judgment-debtor is no longer a foreigner qua that Court, then the decree can be executed and is not a nullity because the Court that passed the decree had jurisdiction as judged by municipal law. As I read the judgments in the Bombay cases, the reasoning seems to me that the relevant date for ascertaining the nature of the decree is not the date of the decree but the date on which the Court is called upon to pass an order for execution and if at this time the Court in which the decree is sought to be executed has ceased to be a foreign territory, then the decree is executable. I do not see how a change in the 'national status' of the judgment-debtor can turn what was originally a foreign judgment into a judgment of a domestic Court. In determining the nature of the decree, the status or the residence of the defendant is, no doubt, a matter to be taken into consideration. But the relevant date for this purpose, according to private International Law can only be the time of the commencement of the action and the time of the judgment in the action. It is. true that the right of a party to urge that the decree of a foreign Court is not executable against him as he was a foreigner in relation to the Court which passed the decree and had not submitted himself to the jurisdiction of that Court is a rule of private International Law and that the question of enforcement of this right cart arise only at the time of the execution of the decree. But from this, it does not follow that if there has been an alteration in the character of the Court passing the decree and of the Court in which it is sought to be executed and if at the time of the execution of the decree both these Courts have become Courts of one and the same territory, then the decree which was originally a foreign decree qua the judgment-debtor ceases to be so. To say so, is, firstly, to ignore the difference between the law by virtue of which the judgment-debtor claims the right and the forum in which he claims it, and secondly to give retrospective effect to the definition given in the Constitution of the expression "territory of India." I have no doubt that no such retrospective effect can be given to the definition of "territory of India." The definition, is, of what India is in fact after the Constitution, and not of what (for some purpose) it would be notionally before the coming into force of the Constitution. 74. On behalf of the decree-holder reliance was placed on Art.261 of the Constitution to show that the decree is capable of execution anywhere in the territory of India. As my learned brother Samvatsar, J., has rightly pointed out, Cl.(3) of the Article does not apply to judgments or orders passed before 26-1-1950. The fact that there is no provision in the Constitution for the execution anywhere in India of the decrees passed by the British Indian Courts or Courts of the former Indian States against "foreigners" who are now citizens of India only indicates that the framers of the Constitution did not think it necessary to make any change in the character and; enforceability of such "foreign decrees". To me it seems, the clause of Art.261 requiring the States to give full faith and credit to public acts, records and judicial proceedings is of significant importance. A similar requirement is to be found in the federal Constitution of United States of America and Australia. There is no corresponding provision in Canada, which has in theory a unitary Constitution. This clause, it maybe noted, does not confer any new or special powers on the States. Its effect is to prohibit the Union and the States from doing anything prejudicial to inter-state official and judicial reciprocity. The article is based on the view that the component States in a federation are foreign to and independent of each other in several matters including records and judicial proceedings and that "common allegiance" to the federation is not sufficient to prevent the judgments passed by the Courts of one State from being regarded as "foreign judgments" in another State. The article is based on the view that the component States in a federation are foreign to and independent of each other in several matters including records and judicial proceedings and that "common allegiance" to the federation is not sufficient to prevent the judgments passed by the Courts of one State from being regarded as "foreign judgments" in another State. It is because of this theory that the article inter alia provides that the judgments of a State Court shall have the same credit, validity and effect in every other Court in the Union, which it has in the State where it was pronounced. The point I wish to emphasize is that the insertion of Art.261 in the Constitution shows that common citizenship under the Constitution or the fact that the Court which passed the decree and the Court in which it is sought to be executed have by reason of political changes become Courts of one and the same Sovereign authority, cannot by itself be regarded as a ground for holding that the decree which was originally a foreign decree has now become a decree of the domestic Court. 75. An indication of the trend of authoritative opinion on the subject is afforded by the Supreme Court's decision in - ' AIR 1953 SC 441 (Y)'. In that case an order under S.488, Criminal P.C., was made on 29-3-1946 by the Court of a Magistrate at Lahore. When the wife applied in 1949 to the Court of First Class Magistrate, Delhi, for the enforcement of the order, the husband raised the objection that as from 15-8-1947 Lahore became foreign territory and the Lahore Courts foreign Courts, the order of the Lahore Magistrate became a foreign order and, therefore, was inexecutable in Delhi. Rejecting this contention Bose J., who delivered the judgment of the Court, said, "We see no reason why an order which was competent and valid at the time it was made and which could have been enforced in Delhi should cease to be competent simply by reason of the partition." It was further observed that "the order here was a competent order of a domestic tribunal when it was made and could then have been enforced in the Delhi Court. In the absence of any specific bar we see no reason why it should lose its Indian nationality simply because the place in which it was born was later made foreign territory." The cases - ' AIR 1951 Bom 190 (D)'; - ' AIR 1950 Cal 12 (V)' and - 'AIR 1951 Punj 255 (W)' were cited before the Supreme Court to support the proposition that by reason of partition the order of the Lahore Magistrate became an order of a foreign Court. As these cases were not under Ss.488 and 490, Criminal P.C, the Supreme Court declined to comment on them. It was, however, observed that "if those decisions are not based on matters which are special to them......... and if the learned Judges intended to enunciate a general principle which would affect the rights of the parties before us, then, with greatest respect, we consider that they are, to that extent, wrong." It is true that in - 'Kishorilal's case (Y)' Bose J., distinctly stated that his remarks were confined to applications under S.490, Criminal P.C. But if the language of his Lordship's concluding observation is carefully studied, it is apparent that he was thinking that there can be no such general principle as that the "nationality" of an order made by a Court is altered simply by reason of political changes such as partition, merger, establishment of the Union or simply because the place in which the order was passed was later made foreign territory or became a part of India. It may be argued that while the decisions in - ' AIR 1950 Cal 12 (V)' and - 'AIR 1951 Punj 255 (W)' are distinguishable as being based "on matters which are special to them" scilicet the provisions of Indian Independence Act and Indian Independece (Legal Proceedings) Order, 1947, it seems to me the reasoning in the Bombay cases referred to above and in - 'Lunaji's case (B)', which regard the fact of judgment-debtor ceasing to be a foreigner and the Court which passed the decree ceasing to be a foreign Court by reason of political changes, as decisive in turning what was originally a foreign decree into a decree of a domestic Court runs contrary to the decision of the Supreme Court in - 'Kishorilal v. Shanti Devy (Y)'. 76. 76. I also think that the judgment-debtor's right to plead that the decree of the Kasganj Court being in relation to him a decree of a foreign Court passed in absentem is a nullity, is preserved by S.20 of the Code of Civil Procedure (Amendment) Act, 1951 (Act 2 of 1951). The right of a defendant to say that a decree of a foreign Court cannot be executed against him as he was a foreigner in relation to the Court which passed the decree and had not submitted himself to the jurisdiction of that Court, is, no doubt, a rule of private International Law. But it is because this rule was embodied (in provisions akin to S.13, Civil Procedure Code, 1908) in the Gwalior Civil Procedure Code and in the adapted Civil Procedure Code that was in force in Madhya Bharat till 1-4-1951, and because of the definitions of the terms "foreign Court" and "foreign judgment" in those Codes that the judgment-debtor could avail himself of the rule of private International Law and say that the decree was a nullity. The Civil Procedure Code which has been brought into force in this State by Act 2 of 1951 has in consonance with the political changes, made a substantial change in the definitions of the terms 'foreign Court' and 'foreign judgment'. If these definitions are given a retrospective operation and applied here so as to turn the decree of the Kasganj Court which was originally a decree of a 'foreign Court' into that of a domestic Court, then the judgment-debtor is not entitled to take advantage of the rule of private International Law. It is, therefore, not correct to say that the right to plead a bar to the execution of the decree is not taken away by reason of the repeal of the Civil Procedure Code, that was in force in Madhya Bharat before 1-4-1951 and the bringing into force of the Code of Civil Procedure, 1908, by Act 2 of 1951. The judgment-debtor's right to treat the decree as a nullity has been clearly affected by the change in the Code of Civil Procedure. The judgment-debtor's right to treat the decree as a nullity has been clearly affected by the change in the Code of Civil Procedure. But under S.20 of the Code of Civil Procedure (Amendment) Act, 1951, the repeal of the Code of Civil Procedure that was in force in Madhya Bharat on the date when the Code of Civil Procedure, 1908, came into force cannot affect the judgment-debtor's right to urge that the decree is a nullity in relation to him by virtue of the definitions of 'foreign Court' and 'foreign judgment' in the Gwalior Civil Procedure Code and the repealed adapted Civil Procedure Code and by virtue of the provisions in these Codes that a foreign judgment which has not been pronounced by a Court of competent jurisdiction shall not be conclusive. 77. For the foregoing reasons I am inclined to think that the view taken in - 'Lunaji's case (B)' is not sound. In my opinion a decree passed by a British Indian Court against a subject of the former Gwalior State in absentem is not executable in this State even after 26th January 1950. 78. A. H. KHAN, J.: Pronounced by me. Answer accordingly.