P L D 1957 Dacca 267 (PLP)

IBRAHIM, J.‑

The appellant obtained an ex parte money decree against the Governor‑General‑in‑Council, New Delhi, in a suit instituted on the 13th of August 1947, for recovery of compensation for non‑delivery of goods which had been dispatched from Kendua Kalibari on the Bengal and Assam Railway for delivery at Tejgaon on the same Railway, both the Stations being within the territory of Eastern Bengal. The ex parte decree was passed on the 27th of January 1949. On the 1st of January 1951, the appellant applied for execution of the decree against the Dominion of Pakistan with a prayer for substitution of the latter in place of the Governor‑General‑in‑Council, New Delhi. The Dominion of Pakistan entered appearance and objected to the execution on the ground they were not liable under the decree sought to be executed. The objection was allowed by the learned Subordinate Judge. The appellant took an appeal to the learned District Judge but was unsuccessful. Hence this appeal. An application has been filed before us to amend the cause title of the appeal by substituting the Federation of Pakistan in place of the Dominion of Pakistan. That petition we have allowed. The material question for decision is whether the decree obtained by the appellant can be executed against the Federation of Pakistan. At the time of the Partition the rights and liabilities of the Government of India were divided between the Dominion of India and the Dominion of Pakistan by the Indian Independence (Rights, Property and Liabilities) Order, 1947, as an initial measure. The contractual rights and liabilities of the Government of India are dealt with in Article 8 of this Order, which operates subject to Article

9. In this case it is not necessary to consider the provisions of Article

9. Article 8 (1), which is relevant for the purpose of this case, is this:‑ "Any contract made on behalf of the Governor‑General‑in Council before the appointed day shall, as from that day,‑ (a) if the contract is for purposes which as from that day are exclusively purposes of the Dominion of Pakistan, be deemed to have been made on behalf of the Dominion of Pakistan instead of the Governor‑General‑in‑Council; and (b) in any other case, be deemed to have been made on behalf of the Dominion of India instead of the Governor General‑in Council; and all rights and liabilities which have accrued or may accrue under any such contract shall, to the extent to which they would have been rights or liabilities of the Governor-General‑in‑Council, be rights or liabilities of the Dominion of Pakistan or the Dominion of India as the case may be." The rule of division adopted in this Article has reference to the purposes for which the contract was made. If the purposes for which the contract was made, continue exclusively to be the purposes of the Federation of Pakistan as from the appointed day, namely, the 15th day of August 1947, then all rights and liabilities, which have accrued or may accrue with reference to that contract, are to fall to the share of the Federation of Pakistan. Beyond that limit and subject to Article 9, all rights and liabilities devolve upon the Dominion of India, now the Union of India. The question, therefore, is, whether the purposes for which the contract was made, became the exclusive purposes of the Dominion of Pakistan as from the appointed day. The contract was made for the Bengal and Assam Railway for carriage of goods. The Bengal and Assam Railway admittedly did not become the exclusive property of the Dominion of Pakistan as from the appointed day. It is clear that neither that Railway nor the purposes thereof became exclusive purposes of the Federation of Pakistan; and though B both the Stations‑the booking Station and the delivery Station were in East Bengal, the liability arising out of the contract cannot attach to the Federation of Pakistan. In Messrs Dulichand 0mraolall v. The Dominion of Pakistan and another (Civi: Revision Case No. 352/1951, unreported.), a similar case, I held, sitting singly, that the Federation of Pakistan could not be held liable for short delivery of goods which had been consigned to the Eastern Bengal Railway at Setabganj for delivery at Dacca. Guha, J. in Prodyot Kumar Choudhury v. Dominion of Pakistan (Civil Revision Case No. 646/49, unreported.), held, following Union of India v. Loke Nath Saha (55 C VA N 195), that the Federation of Pakistan was not liable for loss of goods dispatched from Pabna Out Agency for delivery at Netrokana on the Eastern Bengal Railway. I have had the privilege of discussing with my learned brother before delivering this judgment, and he also agrees with the view I have taken. Mr. De has referred to The Union of India v. Chinubhai (A I R 1953 Bom. 13). The claim in that case was in respect of certain quantities of long cloth which belonged to the Government of India and were lying at the Ordinance Parachute Factory in Lahore. The plaintiffs, who were residents of Baroda, purchased those goods from the Government of India on the 10th of March 1947; but the goods were not delivered then and there. It was stipulated in the corresponding sale notes that the goods would be stamped for which certain charges would be paid by the purchasers, and the latter would remove the goods within twenty‑one days of the stamping. The purchasers paid the price; but due to the communal disturbances the goods could not be stamped and, consequently, no delivery was taken. The goods were seen in Lahore on the 10th of August 1947. But whether they were in Lahore on the 15th of August 1947, was not quite clear. The suit was brought, against the Union of India. It was held that, if the goods were in Lahore on the appointed day, then by reason of Article 6 of the Indian Inde pendence (Rights, Property and Liabilities) Order, 1947, they became the property of the Federation of Pakistan, and any contractual liability in relation to that attached to that Federation. The suit was ultimately remanded to ascertain whether the goods were actually in Lahore on the appointed day. That decision does not conflict with our view. There the learned Chief Justice (Chagla, C. J.) said that the test to determine, whether in a particular case the Indian Union or the Federation of Pakistan is liable, must be an artificial one "and the test may be either, if the contract had been entered into on 15th August 1947, whether it would have been a contract for the purposes of the Dominion of Pakistan, or, if the Dominion of Pakistan had been in existence when the contract was entered into, whether it would have been a contract for the purposes of Pakistan". In the present case the contract was made for the purposes of the Bengal and Assam Railway. On the appointed day the Federation of Pakistan could not have entered into a contract for the purposes of that Railway, for, admittedly, as from the appointed day the Bengal and Assam Railway ceased to exist, far from becoming an exclusive property of the Federation of Pakistan. The learned Government Pleader raised another point. He contended that the Federation of Pakistan was not substi tuted before the decree was passed, and, as such, it cannot be executed against this State. This point was not raised before the learned District Judge; and we do not think it necessary to decide it in view of our decision on the main issue. The appeal fails and is dismissed; but considering the circumstances, we make no order as to costs. Certificate under section 205 (1) of the Government of India Act, 1935, as adapted in Pakistan, is asked for by Mr. De, and is granted. CHAKRABORTI, J.‑

I agree. K. B. A. Appeal dismissed.