SARDAR MUHAMMAD ASHRAF KHAN, J.--This appeal has been directed against the order of Sub- Judge, Mirpur, dated 20-8-1984 whereby he in pursuance to the precept issued to him by the Court of Civil Judge, Jhelum, made an order for the attachment of the property of the appellant specified in the said precept.
2. Briefly stated that giving rise to the filing of this appeal are that Abdur Rashid, respondent obtained an ex parte decree for payment of Rs.25,000 against the appellant on 18-12-1982. On being moved by the decree-holder, the Court passing the decree issued a precept under section 46, C.P.C. And sent the same to the Court of Sub-Judge, Mirpur for attachment of the property specified therein owned and possessed by the appellant within its territorial jurisdiction. On receipt of the said precept, Sub-Judge Mirpur after hearing the learned counsel for the parties issued the warrant for attachment of the aforesaid property, vide his order, dated 20-8-1984. Feeling aggrieved by the above order for the attachment of his property, the appellant has filed this appeal.
3. We have heard the learned counsel for the parties and have also gone through the record of the case.
4. The learned counsel for the respondent raised two preliminary objections out of which first being that the appeal against the impugned order is not maintainable as the same is not made in proceedings for the execution of the decree but only in pursuance of the precept issued by the competent Court under section 46, C.P.C. In other words, his contention is that an order made in the proceedings in respect of execution of decree is appealable and not the one made in execution of precept received under section 46, C.P.C. His second preliminary objection is that there is no provision in law under which objections to the execution of the precept can be raised and that such an objection is at the most competent before the Court issuing the precept and not before the Court to whom it is sent for execution.
5. We have given our due consideration to the above preliminary objections but no substance in them in the given circumstances of the case. The order of the Sub-Judge, Mirpur under appeal has been challenged on the ground that he had no jurisdiction to entertain the precept incompetently issued and execute the same by issuing a warrant of attachment for the property of the appellant mentioned in it. Thus, if the Court of Sub-Judge, Mirpur was not competent to execute the precept then his order under appeal being void ab initio having been passed without jurisdiction is liable to be set aside by the Court, exercising appellate jurisdiction over it. Even if, it is assumed that the impugned order is not appealable, this Court in exercise of its revisional jurisdiction can examine its legality or otherwise and can set it aside, in case, it is found to be unlawful and passed without) jurisdiction.
6. Similarly the second preliminary objection regarding the non--existence of any provision of law enabling the appellant to raise objections to the precept issued under section 46, C.P.C. Before the Court of Sub-Judge, Mirpur, is not relevant and substantial because the objection as to the lack of jurisdiction of the Court to obey and execute the precept sent to it under section 46, C . P. C . By the person likely to be adversely affected by such an execution is not prohibited by any provision of law and such a legal objection can always be taken before such Court who is bound to decide it in the first instance. The right to challenge the competency of a Court of law to pass an order to the detriment of a person is a right which does not require any enabling provision of law but rather is inherent right vested in such a person.
7. In the above view of the matter, the appellant had every right to raise objection as to the competency of the Sub-Judge, Mirpur to order the attachment of his property, in pursuance to the precept and such an objection can also be taken before this Court as a ground for declaring the impugned order having been passed without jurisdiction and consequently unlawful. For the above reasons, both the above preliminary objections of the respondent are repelled.
8. On merits, the learned counsel for the appellant has contended that the decree passed by the civil Court at Jhelum in Pakistan on the basis of which precept was issued to the Sub-Judge, Mirpur for execution is a decree of foreign Court which could not be executed in Azad Kashmir with the result that the Court of Sub-Judge, Mirpur was not competent to make the order of attachment of the property belonging to the appellant by way of execution of the said precept and as such the order impugned in the appeal is void and unlawful. In support of his above contention, he has referred to AIR 1925 Mad. 1100 wherein it has been held that the precept issued under section 46, C . P . C . Cannot be executed by the foreign Courts and its issuance for execution is- restricted to a Court situated in India only. In this connection he has also made a reference to PLD 1966 SC 88 wherein it was held that Azad Kashmir is not a part of Pakistan but is a foreign country so for Pakistan is concerned.
9. The learned counsel for the respondent, on the other hand, has contended that the precept issued by the Court in Pakistan is executable by the Courts in Azad Kashmir under section 43, C.P.C.
As applicable in Azad Kashmir and that even otherwise the superior. Courts of Azad Kashmir have held that a decree passed by a Court in Pakistan can be executed in Azad Kashmir. In support of his above contention he has cited PLD 1976 Azad J & K 9, PLD 1954 Azad J & K 1 and PLD 1973 Azad J & K 51. He thus contended that the precept under discussion could be issued and sent to the Sub- Judge, Mirpur for execution in view of the provisions of section 46, C . P. C . Because the Court competent to execute a decree is also competent to execute the precept.
10. After giving our due consideration to the arguments addressed at the bar, we are of the opinion, that 'the provisions of section 46, C .P. C . Did not empower a civil Court situate at Jhelum in Pakistan to issue a precept to the civil Court of Mirpur in Azad Kashmir for attachment of .The property of the appellant situated within its jurisdiction. Consequently, the Sub-Judge, Mirpur had no jurisdiction to order the attachment of the said property in execution of the precept. The judgment and decree upon which the precept proceeded was a judgment and decree of a foreign Court which could not be executed in Azad Kashmir with the result that since the Court of Sub- Judge, Mirpur was not competent to execute the said decree he also lacked the jurisdiction and power to execute the precept because under section 46, C . P. C . The Court passing the decree is only empowered to issue a precept to any other Court which is competent to execute such a decree which is the foundation of such a precept. The foreign judgment has been defined in section 2(6) of the C.P.C. As the judgment of the foreign Court and the foreign Court according to the definition contained in section 2(5) of the C.P.C. Means a Court situate outside Azad Kashmir and not established or continued by the authority of the Azad Jammu and Kashmir Government. In view of the above definition of 'foreign judgment' and 'foreign Court' the Courts in Pakistan are all foreign Courts so for as the Azad Kashmir is concerned and the judgments passed by them are foreign judgments. This has already been held in number of cases by the superior Courts of Azad Kashmir out of which PLD 1954 Azad J & K 1 and PLD 1976 Azad J & K 9 may be referred to. The decree passed on the basis of such judgment is not executable in Azad Kashmir as there is no provision in the Civil Procedure Code under which the decree of the foreign Court can be executed in Azad Kashmir.
11. However, the judgment of the Court in Pakistan being a foreign judgment shall be conclusive as to any matter thereby directly adjudicated between the parties or party under whom they or any of them claimed litigation under the same title in view of the provisions of section 13 of the C.P.C.
Subject, of course, to the exceptions enumerated in the said section itself. This being the legal position, the judgment and decree obtained by a person in Pakistan is not enforceable in Azad Kashmir and the only remedy available to such a decree-holder is that he may institute a suit on the basis of such foreign judgment and obtain a decree from the Court of Azad Kashmir against the judgment---debtor. Thus, the judgment of the Court in Pakistan provides only a valid cause of action and foundation for a suit upon it in a competent Court of Azad Kashmir, if it is conclusive and final and it is not hit by any of the exceptions specified in section 13 of the Civil Procedure Code.
12. The contention of the learned counsel for the respondent that the decree passed by the Court of Pakistan can be executed in Azad Kashmir under section 43, C.P.C., has no substance in it as the said section does not cover a decree of the Court in Pakistan. It appears appropriate here to reproduce section 43, C.P.C. As was in force in West Punjab which was adopted in Azad Kashmir in the year 1948. It reads as follows:--- "43. Any decree passed by any civil Court established in any part of India to which the provisions of this Code do not extend or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends."
13. From the bare reading of the above section, it becomes quite clear that the civil Courts in Azad Kashmir are not empowered to execute a decree passed by any civil Court of Pakistan. In section 13 of the C . P. C . As applicable in Azad Kashmir the word 'Pakistan' shall be substituted by the word 'Azad Kashmir' and the word 'Central Government' shall refer to 'Government of Azad Jammu and Kashmir' and thus under this section any decree passed by any civil Court established in any part of Azad Kashmir to which the provisions of the C.P.C. Of Azad Kashmir do not extend or by any Court established or continued by the authority of the Government of Azad Jammu and Kashmir outside Azad Kashmir may be executed within jurisdiction of any Court in Azad Kashmir to which the C.P.C.
Is applicable. It needs hardly any mention that the Courts in Pakistan are not established or continued by the authority of the Government of Azad Kashmir and as such the decrees passed by their civil Courts do not fall within the; ambit of this section and as such are not executable by the Courts of Azad Kashmir. Even if, assuming for the sake of arguments but not conceding that a decree of the foreign Court can be executed in Azad Kashmir still the present decree is unenforceable in Azad Kashmir because the same has not been passed on merits but is an ex parte one. Under section 13, C.P.C., a foreign judgment is conclusive only if the same has been given on the merits of the case but from the copies of the judgment and decree received along with the precept by the Court of Sub-Judge, Mirpur, it appears that the judgment and decree against the appellant was passed ex parte which cannot be executed by the Courts of Azad Kashmir. A decree in a personal action announced by a foreign Court in absentia against the residence of Azad Kashmir who did not submit to its jurisdiction is a nullity in law under the private International Law and obviously such a decree being null and void is not executable in Azad Kashmir. In this view of the matter, also the decree in question is not enforceable in Azad Kashmir and thus the precept issued on its basis to the civil Court of Mirpur in Azad Kashmir could be obeyed and executed and by doing so, by way of passing impugned order, the Sub-Judge, Mirpur has acted illegally and without jurisdiction.
14. We have gone through the judgments of this Court cited by the learned counsel for the respondent iii support of his contention that the decrees of the Courts of Pakistan are executable in Azad Kashmir but in them it is not held so except in one reported as PLD 1976 Azad J & K 9 in which the Single Bench comprising the then learned Chief Justice has pronounced that although the judgments of the Pakistan Courts are the foreign judgments, yet they can be executed in Azad Kashmir.
15. After giving our due consideration to the question as to whether or not the judgments passed by the Courts of Pakistan are executable in Azad Kashmir in the light of the relevant law and reasoning given in support of the view in the above judgment, we may say with utmost respect that we could not persuade ourselves to agree with the said view. 'The grounds advanced by the learned Judge in support of his view were that section 44 of the C.P.C., 1977 Bk. As was in force in Jammu and Kashmir State in Dogra Regime empowered his Highness, the Maharaja of the State of Jammu and Kashmir to declare in notification in the Government Gazette the decrees of any Civil or Revenue Court situate in British India may be executed in the State as if they had been passed by the Court of the State and that the notification to that effect was issued by the Government of which judicial notice has been taken in a Full Bench case reported as PLD 1954 Azad J & K 1 and that the said notification is still in force as between Azad Jammu and Kashmir on the one hand and Pakistan on the other in view of the ruling given in PLD 1973 Azad J & K 51 laying down that under the standstill agreement entered into between the Maharaja's Government and the Pakistan Government on 12- 8-1947, all arrangements that previously existed between the Maharaja's Government and British India were still in force as between the Azad Jammu and Kashmir Government and Pakistan because the Azad Jammu and Kashmir Government is the successor of Maharaja's Government it has been held in PLD 1970 Azad J & K 88.
16. As said earlier, we are unable to subscribe to the view as well as to the reasoning given in support of the same by the learned Judge who gave the said judgment, for the following reasons: Even if the judicial notice is taken as has been done in PLD 1954 Azad J & K 1 as well as in a case under consideration i.e. PLD 1976 Azad J & K 9, that the Maharaja's Government had issued a notification under section 44 of the C.P.C. Empowering the Courts of Azad Kashmir to execute the decrees passed by the Courts of British India as if they had been passed by the Courts of the State, still the said Notification cannot be held to be in force in Azad Jammu and Kashmir territory after coming into being the two separate dominions of Pakistan and India and the State of Jammu and Kashmir. The C.P.C in force in the State of Jammu and Kashmir prior to the establishment of the State of Jammu and Kashmir, ceased to be applicable in Azad Kashmir at least since the year 1948, if not earlier, when the C.P.C as in force in West Punjab in Pakistan was adapted in Azad Kashmir.
On the adaptation of the said C.P.C. In Azad Kashmir, the Notification, issued under it also came to an end and did not remain in force in Azad Kashmir. In PLD 1976 Azad J & K 9, the Notification under this section was held to be still in force in Azad Kashmir on the ground that under the stand-still Agreement entered into between the Maharaja's Government of the former State of Jammu and Kashmir and the Pakistan Government on 12-8-1947, all the arrangements previously existing between the Maharaja's Government and British India were continued and as such the Notification issued under section 44, C.P.C., also remained in force in Azad Kashmir for the reason that the Azad Kashmir Government is the successor of Maharaja's Government. First of all, the Stand-still Agreement referred to in the above judgments has neither been produced before us nor we have been able to lay our hands on such an agreement of which judicial notice could be taken. We do find it mentioned and reproduced in the form of telegrams exchanged between the Maharaja's Government and the Government of Pakistan in a judgment reported as PLD 1973 Azad J & K 51 which has been written by the same learned Judge who held in a judgment reported in PLD 1976 Azad J & K 9 that decrees of Pakistan Courts are executable in Azad Kashmir. These telegrams are reproduced below:--- "Telegram of the Prime Minister of Kashmir addressed to the State's Relations Department, Government of Pakistan, 12th August, 1947: 'Jammu and Kashmir Government would welcome Stand-still Agreement with Pakistan on all matters on which these exist at present moment with outgoing British India Government. It is suggested that existing arrangements should continue pending settlement of details and formal execution of fresh agreements'.
Telegram of the Foreign Secretary, Government of Pakistan, addressed to the Prime Minister of Kashmir, 15th August, 1947: "Your telegram of the 12th. The Government of Pakistan agree to have a Stand-still Agreement with the Government of Jammu and Kashmir for the continuance of the existing arrangements pending settlement of details and formal execution of fresh agreements."
17. As would appear from the perusal of the judgment in which the above telegrams are reproduced, the copies of these telegrams were provided to the learned Judge by the then Director-General, Foreign Office, Islamabad in connection with the writing of a Book on Kashmir by him. Legally, these copies furnished privately to an author of a Book on Kashmir in a private capacity by some officer of the foreign office of Pakistan Government carry with it no authenticity and as such judicial notice cannot be taken of them. Even otherwise, the agreement arrived at on the exchange of these telegrams between the Mahraja's Government and the Government of Pakistan was for the continuance of arrangements on matters which existed at the moment between the outgoing British India Government and the Government of former State of Jammu and Kashmir. But the Notification issued under section 44, C . P. C .. By the Government of the said State cannot, by any stretch of imagination, be construed as an arrangement between the Government of the said State of Jammu and Kashmir and the British India Government as referred to in the Stand-still Agreement. The decrees passed by the Courts of British India were made executable in the territory of the State of Jammu and Kashmir by a legislation enacted in the form of section 44, C.P.C. And the Notification issued thereunder and not by any executive or administrative arrangement.
18. Apart from the above legal position, it could not be said that any arrangement with regard to the execution of decrees passed by the British India Courts in the former State of Jammu and Kashmir existed between the British India Government and the Government of and Kashmir State on the date of Stand-still Agreement in discussion because by section 7 of the Indian Independence Act, all the treaties and agreements in force at the date of passing of the said Act between His Majesty and the Rulers of the Indian State lapsed and came to an end except those relating to custom, transit, communication, posts and telegraphs and other like matters. Thus, even if, the law conferring powers on the Courts of the former State of Jammu and Kashmir to execute the decrees of the British Indian Courts are considered to be an arrangement between the British Indian Government/ and the Government of the State of Jammu and Kashmir, the same had already come to an end on the date the Stand-still Agreement in question was concluded between the former Jammu and Kashmir State and the Pakistan Government in view of section 7 of the Indian Independence Act. However, at least from the date of coming into being the constitution of Azad Kashmir, it cannot be said that Azad Kashmir Government is the successor of the former State of Jammu and Kashmir and as such it is bound to honour the agreement entered into by the Mehraja's Government with any foreign Government. The Laws for the Azad Kashmir are enacted by Azad Jammu and Kashmir Legislative Assembly created first under the Azad Jammu and Kashmir Interim Constitution Act, 1970 and after its repeal under Azad Jammu and Kashmir Interim Constitution Act, 1974 with the result that any matter covered by the agreement between the former State of Jammu and Kashmir and Pakistan Government is now to be governed by law in force in Azad Kashmir and any such agreement would be deemed to have lapsed and become rendered redundant.
19. For all the above reasons, we overrule the ruling of the Single Judge announced in PLD 1976 Azad J & K 9 wherein it was held that the decrees passed by the Courts of Pakistan are executable in the territory of Azad Kashmir.
20. The net result of the above discussion is that the decrees of the Courts of Pakistan cannot be executed by the Courts of Azad Kashmir and as such any precept issued on the basis of such decree by a Court in Pakistan for execution cannot be executed in Azad Kashmir for the simple reason that the precept can only be executed by a Court which is competent to execute a decree.
Therefore, accepting this appeal, the order of the Sub-Judge, Mirpur dated 20-8-1984 whereby he, in execution of the precept issued by the civil Court, Jhelum, issued the warrant of attachment of the property belonging to the appellant, is set aside on the ground of having been passed without jurisdiction and lawful authority. In the circumstances of the case, the parties shall bear their own costs.