P L D 1960 Dacca 351 (PLP)

6. On appeal by the judgment‑debtors, the learned Subordi nate Judge, could not agree with the trial Court in view of the provisions in Article 13 (3) and (4) of the High Courts (Bengal) Order, 1947, and held that, as at the time of the passing of the Indian Independence Act, 1947, the Assam High Court was not in existence and it came into existence long after the independence of Pakistan and India, the decree passed in the Assam High Court was not executable in Pakistan as if the decree was passed by the High Court of Calcutta under Article 13 of the High Courts (Bengal) Order and, as such, it could not be executed in Pakistan and struck off the execution case. Hence this appeal.

7. Mr. S. R. Pal, the learned Advocate for the appellant, contends that, when the Second Appeal was pending in the Calcutta High Court on the Appointed day and, by subsequent change, the Assam High Court came into existence and the case was transferred to the Assam High Court, the decree passed by the High Court of Assam is no less a decree passed by the High Court of Calcutta and, as such, under Article 13 of the High Courts (Bengal) Order, 1947, the decree is executable in Pakistan; in other words, his contention is that the decree by the Assam High Court is to be treated as a decree passed by the Calcutta High Court. His second contention is that " subject to any provision made on or after the Appointed day with respect to the High Court in Calcutta or the High Court in East Bengal by any Legislature or other authority having the power to make such a provision," in Article 14 of the High Courts (Bengal) Order, 1947, " the provision of this Order shall have effect " cover the present case. His contention is that on account of the change that has been brought about by the creation of the Assam High Court by the Government of India, the provisions of the High Courts (Bengal) Order, 1947, shall have the effect subject to such change. " Subject to any provision " includes any change brought about in respect of the High Court of Calcutta or the High Court of East Bengal, according to him, and means that whatever change there may be in the constitution of the High Court, the decree under the changed circumstances will be the decree of that High Court.

8. To appreciate the argument of Mr. Pal, I think it is necessary to quote the relevant portion of Articles 13 and 14 of High Courts (Bengal) Order, 1947. Article 13 (3), (4) runs as follows: " (3) Subject to the preceding provisions of this Article, all proceedings pending on the Appellate side of the High Court in Calcutta immediately before the Appointed day shall, where the Court of origin is, as from that day, situated in the Province of East Bengal, stand transferred by virtue of this Order to the High Court of East Bengal. (4) Subject to the following provisions of this Article with respect to appeals, any order made by the High Court in Calcutta either‑ (a) before the Appointed day ; or . . (b) in any proceedings with respect to which the said High court retains jurisdiction by virtue of paragraphs (2) and (3) of this Article shall for all purposes have effect not only as an order of the High Court in Calcutta but also as an order made by the High Court of East Bengal." Article 14 runs thus: " Nothing in this Order shall prejudice the application to the High Court of East Bengal of any relevant provisions of Part IX of the Government of India Act, 1935; as it applies in relation to Pakistan, and the provisions of this Order shall have effect subject to any provision made on or after the Appointed Day with respect to the High Court in Calcutta or the High Court of East Bengal by any Legislature or other authority having power to make such provision." In the present case, the suit originated in the Munsif's Court of Karimganj, the major portion of which sub‑division has now fallen in India. The Second Appeal arising out of this suit pending in the Calcutta High Court was retained by that Court after Partition and was subsequently transferred to the Assam High Court, but it relates to properties in, that portion of Karimganj sub‑division which has fallen in Pakistan. Under Article 13 (4) (b), any order made by the High Court in Calcutta shall for all purposes have effect not only as an order of the High Court in Calcutta but also as an order made by the High' Court of East Bengal. If the decree would have been passed by the Calcutta High Court, under. Article 13 (4) (b), certainly it would have the effect of a decree passed by the High Court of East Bengal. But the difficulty has arisen on account of the fact that the decree sough to be executed in a Pakistan Court is not that of the High Court of Calcutta but of the Assam High Court. This decree of the Assam High Court literally does not come within the meaning of the provisions of Article 13 of the High Courts (Bengal) Order, 1947. Therefore, Mr. Pal tried to give effect to this decree as if it is a decree of the High Court of Calcutta. I am unable to accept this contention of Mr. Pal. As it is not a decree from the High Court of Calcutta but a decree of the Assam High Court, it cannot be treated as a decree of the High Court of Calcutta to be executed in a Pakistan Court under Article 13 (4) (b) of the High Courts (Bengal) Order, 1947. It is no doubt true that there is a change in the constitution of the High Court of Calcutta, but that does not make the decree of a different High Court, subse quently created after Partition, a decree of the High Court of Calcutta within the meaning of Article 13 of the High Courts (Bengal) Order, 1947.

9. As to the second contention of Mr. Pal that Article 14 of the High Courts (Bengal) Order, 1947, makes the provisions of this Order applicable subject to any provision made on or after the Appointed day with respect to the High Court in Calcutta or the High Court to East Bengal. The wording in the Article is not " Notwithstanding any provision made " but the words are " subject to any provision made ". Under the High Courts (Bengal) Order, 1947, the decree passed by the High Court of Calcutta shall have for all purposes the effect not only as an order of the High Court in Calcutta but also as an order made by the High Court of East Bengal. But it has been subjected to the limitation of any provision made under section 9 (3) of the Indian Independence Act, 1947. In fact, the Governor‑General of Pakistan, by Pakistan High Courts (Bengal) Order, 1949, dated 25‑2‑49 provided as follows : " No judgment, decree, or order arising out of any proceedings pending in the High Court of Calcutta within the meaning of paragraph (2) of Article 13 of the High Courts (Bengal) Order, 1947, (G. G. O. 4 of 1947), shall affect the legislative or executive right or authority of the Central or a Provincial Government of Pakistan and, where such right or authority has been at issue any judgment, decree or order so arising shall be void and imperative." So, the decree passed by the Calcutta High Court will be subject to such provisions as the Governor‑General has provided by the Pakistan High Courts (Bengal) Order, 1949. The words "subject to any provision" mean any provision by any Government in respect of any decree in any High Court and that provision only applies to that Government and it does not bind the other Government. In this view of the matter, I think the learned Subordinate Judge is right in holding that the decree of the High Court of Assam is not executable in Pakistan except as a foreign decree under sections 13 and 14 of the Code of Civil Procedure.

10. The result, therefore, is that this appeal is dismissed. In the circumstances of the case, I make no order as to costs.

11. Leave prayed for under Clause 15 of the Letters Patent is refused. K. B. A, Appeal dismissed.