P L D 1954 Azad J & K 1 (PLP)

ABDUL MAJID, C. J.‑‑This is a Miscellaneous second appeal arising out of certain execution Proceedings which were pending in the Court of Sub-Judge Muzaffarabad. It has been heard by three Judges this Court sitting as a full bench in the following circumstances. It was heard first by Niaz Ahmad (J.) sitting as a single bench. The Sub‑Judge, Muzaffarabad had held that the decree could not be executed by Azad Kashmir Court as it had been passed by the Sub Judges Court in Rawalpindi and there was no reciprocal arrangements for the execution of decrees between Pakistan and Azad Kashmir though it had been transferred for execution to the Court of Sub‑Judge, Muzaffarabad in the Dogra Regime before the Liberation Movement started under section 44 of the C. P. C. in force in Jammu and Kashmir State under which His Highness had declared by notification in the Government Gazette that the decrees of any Civil and Revenue Courts situated in British India may be executed in the State as if they had been passed by the Courts of the State. On appeal the learned District judge held that the Courts in Pakistan could not be treated as foreign Courts so far as Azad Kashmir Government was concerned. The reasons given by the learned District judge in support of his conclusions were not legal but purely sentimental. The ordered passed by the District judge was challenged before Niaz Ahmad (J.) by way of second appeal: It was held by Niaz Ahmad (J.) that the Court of the Sub‑Judge, Rawalpindi was a foreign Court as it has not been established by the Azad Kashmir Government. The decree of which the execution was sought being a decree of foreign Court could not be executed in Azad Kashmir Courts. It was further held that as the decree was ex‑parte, the judgment was not conclusive and it was necessary for the decree‑holders to begin a suit in a Court of Azad Kashmir on the strength of the judgment obtained in Pakistan, The second appeal was accepted and the order of the Sub‑Judge was restored. An application for review of the judgment was filed before Niaz Ahmad (J) on the ground that the appeal which had been decided by him had not been properly filed because the memorandum of appeal was not signed by the appellants or their counsel. The application for review was accepted by Niaz Ahmad (J.) and the appellants were allowed to sign the memorandum of appeal. As the question involved in the appeal was an important one, Niaz Ahmad (J.) referred it for decision by a larger bench. I thought fit to have the matter placed before a full bench. The facts giving rise to the appeal are not fully set forth in the various orders passed in the execution proceedings. In order to clarify the questions which require determination, I proceed to mention these facts in detail so far as they are relevant to the appeal. All these facts have been gathered by me from the record of the execution proceeding. On 24th January 1946, Raja Khani Zaman and Raja Ali Zaman brought a suit against Sayed Karim Haider Shah and Sayed Saif Ali Shah in the Court of Sub‑Judge, Rawalpindi on the basis of an agreement alleged to have been executed by the defendants in their favour on receipt of Rs. 2,500 by cheques drawn on Punjab Kashmir Bank Limited, Rawalpindi for cutting and sawing trees in the jungle No. 15 Bhangal Tranj Karor Murree Hill Forest Department of which the contract had been taken by them. The allegations of the plaintiffs were that the defendants had done work only of the amount of Rs. 969‑8‑

6. Adding the amount advanced by the plaintiffs to the workmen employed by the defendants and giving credit for the amount due to the defendants on account of work done, the amount still due from the‑defendants was calculated as Rs. 2,

300. The defendants did not put in appearance and the suit was declared ex carte after recording evidence against them on 30th July 1946. The decree of Sub‑Judge, Rawalpindi was transferred for execution to the Court of Subordinate Judge at Muzaffarabad through the District Judge, Srinagar where the decree‑holders put in an application for execution. This happened before the Liberation Movement was started. After the Courts constituted by Azad Kashmir Government began to function, a fresh application for ‑execution of the decree was put in on 12th January 1949, and it was mentioned therein that the record of the previous application bad been burnt on account of bombs thrown by the enemy on Court buildings. A notice of this application was issued to the judgment debtors who objected to the execution of the decree mainly on the ground that it was a foreign decree and that it could not be executed by the Azad Kashmir Courts. Mr. Zahur Hussain Naqvi, Sub‑Judge, who handled the execution application in the first instance called upon the decree‑holders to prove that the decree had been transferred for execution to the Court of Sub- Judge, Muzaffarabad and was pending for execution in that Court before the Liberation Movement was started. Khawaja Ghulam Haider Gagroo who succeeded Sayed Zahur Hussain Naqvi ignored the order of his predecessor and holding that it was a decree passed by a foreign Court and there was no reciprocal arrangement for execution of decrees between Pakistan Courts and Azad Kashmir Courts dismissed the execution application. An appeal was preferred from that order to the District judge who directed an enquiry whether the decree had been transferred for execution to the Court of Sub‑Judge, Muzaffarabad and was pending for execution before the Liberation Movement was started. When this order was passed Khawaja Ghulam Haider Gargoo had been transferred. The enquiry was entrusted to Malik Muhammad Aslam who had succeeded Khawaja Ghulam Haider Gargoo. Malik Muhammad Aslam reported on 20th April 1952, that the decree had been transferred for execution to the Court of Sub‑Judge, Muzaffarabad and was pending execution when the Liberation Movement was started. On the receipt of the report, the parties were ordered to file objections if any. No objections were filed. In the meantime, Sardar Muhammad Ayub Khan had taken over as a District judge from Mr. Abdur Rahim Durrani and the former proceeded to decide the appeal. In the order passed by Sardar Muhammad Ayub Khan no reference was made to the report made by Malik Muhammad Aslam. The order appears to have been passed by him without seeing the file of the execution application and as already stated, it was held merely on sentimental grounds that the Pakistan Courts were not foreign Courts and the execution appli cation could proceed. The questions which require determination for the purposes of this appeal are (a) whether the Azad Kashmir Courts are legally bound to execute a decree passed by a foreign Court and transferred to the Courts in Jammu and Kashmir State for execution under section 44 of C. P. C. then in force and (b) whether the decree sought to be executed comes within the definition of "Foreign judgment" given in section 13 of the C. P. C. and its provisions govern the decrees passed by the foreign Courts also or only apply to judgments delivered by foreign Courts on the basis of which the suit is brought in domestic Courts. In other words, whether the concluding words of section 44 namely "as if they bad been passed by the Courts in, British India" appearing in the C. P.C. in force in Dogra Regime in any way control the operation of the provisions of section 13 clause (a). To resolve the first question, a reference is necessary to the provisions of Azad Jammu and Kashmir Courts and Laws Code of 1949. Section 2 of this Code runs as below:- "All acts done under any law in force on the date of commencement of this Code, shall be deemed to be in every way valid. Provided that all proceedings pending on the date of enforce ment of this Code, shall be transferred to the Courts set‑up under this Code." The words used in section 2 reproduced above clearly indicate that all proceedings pending on the date of the enforce ment of the Code shall be deemed to have been transferred to the Courts set up under this Code. In other words, the Courts set up by Azad Kashmir Government were a sort of successor Courts so far as the Courts functioning in Dogra Regime were concerned As the decree had been transferred for execution to the Court of Sub‑Judge, Muzaffarabad legally and was pending for executicn in that Court before the Liberation Movement was started, it is to be taken to be transferred to the Sub‑Judge's Court, Muzaffarabad set up by the Azad Kashmir Government because the decree after transfer to the Sub Judge's Court at Muzaffarabad in the Dogra Regime was to be executed as if it had been passed by that Court. The fact that it was passed by a foreign Court is not material because after it was transferred it is to be taken under section 44 C. P. C. in force in Dogra Regime to have been passed by the Sub‑Judge's Court at Muzaffarabad which was succeeded by the Court set up by the Azad Kashmir Government. I; there fore, hold that the decree could be executed by the Azad Kashmir Courts. The second question depends for its solution upon the interpretation of the word "judgment" in the expression "foreign judgment" as used in section 2 (6). According to the definition of foreign "judgment" in the Court‑of Civil Procedure, it is simply stated to mean the "judgment" of a foreign Court. When one refers to what this means one finds no difficulty in the definition of "foreign Court", but there is a difficulty created by the definition of the word "judgment", for "judgment" curiously enough is given the popular meaning viz, the statement given by the Judge of the grounds of a decree or order. If this reasoning .is adopted, then it will result in absurdity because it will not mean the decree or order but a statement by a judge which cannot possibly form the basis of a suit. In the circum stances, the term "foreign judgment" has to be taken to mean a decree or order of "foreign Court" as defined in section 2 (v) C. P. C. A I R Mad. 1932 (661) is a clear authority on the subject. It was followed in the case reported as A I R 1933 Mad. (511) and I agree with We view taken by the learned judges in the aforementioned cases. I, therefore, hold that the decree sought to be executed was a "foreign judgment" and all objections which could be taken to the enforcement of a "foreign judgment" to prevent its operating as res judicata were open to the judgment-debtors and required decision if such objections were taken. It is true, that the‑decree sought to be executed has to be taken as if it had been passed by the Court functioning in Dogra Regime under the provisions of Azad Jammu and Kashmir Courts and Laws Code of 1949 but this fact does not in any way control the operation of the provisions of section 13 clause (a) C. P. C. vide 39 Mad. 24 (2) and A I R 1935 Lah.

551. If it were not the case then it would‑mean that if a person secures a decree fraudulently or without jurisdiction from a Court in any foreign country and gets it transferred to a Court in Azad Kashmir, provided the provision is made in the Laws passed by the Azad Kashmir Government to that effect, then the Azad Kashmir Court will be bound to execute such decree which is against all canons of justice prevailing everywhere. I, therefore, find that the judgment‑debtors could object to the execution of the decree on the grounds stated in section 13 clause (a) C. P. C. The objections filed by the judgment‑debtors to the execution of the decree are not clear. It cannot be said that any objection of the kind mentioned in section 13 clause (a) was taken by the judgment‑debtors to the execution of the decree though arguments were advanced before us that the decree had been passed without jurisdiction and not op merits and consequently it was a nullity. The learned counsel who advanced the arguments was muddled and could not place his point of view before us clearly. I would, therefore, setting aside the orders of the Courts below, remand the case with the direction that the Sub‑Judge executing the decree should give the judgment‑debtors an opportunity to file objections to the execution of the decree if any under section 13 clause (a) C. P. C. so that they may be disposed of finally before the decree is put in execution. I may note that under section 13 clause (a), it is to be presumed that the Court which passed the decree had jurisdiction to do so and it will be for the judgment debtors to show otherwise. Similarly it is to be presumed that the decree was passed on merits because on the file there are copies of the statements of the witnesses examined by the decree -holders in support of 'their claim and it will be for judgment -debtors to establish that the decree was not passed on merits. The costs of the appeal are ordered to be borne by the parties in the special circumstances of the case. Parties are directed to appear before the executing Court on 6th January 1954. NIAZ‑AHMAD, J.‑I agree. ABDUL GHANI, J.‑I agree. A. H. Case remanded.