Vol. 15 · pages 331–335

314 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES debarred from proceeding further with the other issues. Therefore I am not prepared to accept his first amendment whereby he wants : That in part (i) of clause 2, in the proposed Proviso to section 113 of the Code of Civil Procedure, 1908, the words “and shall stay the further proceedings in the case” be added at the end. The rest of them are purely consequential. Shri K. Vaidya: They are not, I submit, consequential because Rule 2 of Order XLVI as well as Rule 5 of Order XLVI relate only to cases where judgments are given and in a case where an issue has been referred to the High Court there will be no judgment. Under Rule 4 of Order XX the issue should be decided and only then can there be a judgment, and Rule 2 of Order XLVI refers only to cases in which judgment is given. Rule 5 also refers to cases where judgment is given. Therefore these two rules are inconsistent or inapplicable to this Bill. Dr. Ambedkar: I would point out that it is left to the discretion of the subordinate judge. He may make an order staying proceedings or he may not. My hon. friend wants that the discretion of the subordinate judge should be taken away and in all cases he should make an order staying the proceedings. Therefore I am not going to accept his amendment. Mr. Speaker: Is the hon. Member keen on moving his amendment ? Shri K. Vaidya: No, Sir. Mr. Speaker: Then I shall put clause 2 to vote. The question is : “ That clause 2 stand part of the bill.” The motion was adopted. Clause 2 was added to the Bill. Clause 3.—Substitution of new section : Amendment made: In clause 3 for the words “said Code” substitute the words and figures “Code of Criminal Procedure, 1898” . —[Dr. Ambedkar]

315PARLIAMENTARY DEBATES Shri Shiv Charan Lal: So far as the Civil procedure code is concerned, an Order has not got much importance. But so far as the Criminal Procedure Code is concerned, Orders have the same force as an Act. I may point out that under the Defence of India Act, so many orders were passed by the different state Governments and these orders had the force of law. So if you are placing the words “Act, Ordinance and Regulation”, then the word “ Order” also must be there, because in the Criminal Courts, these Orders have the force of law. I do not mean the ordinary Orders, but Orders like the Cotton Yarn and Cloth control Order, the Sugar Control Orders and other such orders which have the force of law. They are sometimes challenged in the courts whether those orders are valid or not. Simply putting the word “Act” before will not do. The other amendment of mine is that in sub-clause 2 of section 432 along with presidency magistrate if the words ‘sessions judge are added that will give a great scope for the Sessions Judge’ also to refer the matter to the high court. If the Minister accepts the amendments I will move them, otherwise not. Dr. Ambedkar: With regard to the first amendment to clause 3 introducing the words “or order” the position is that an order is generally issued under a law made by the legislature. If the contention of a party is that the law under which the order is issued is ultra vires, then obviously the matter will have to be referred by the judge to the High Court, if he is satisfied with the contention. But if the contention of the party is that the law is valid but the order is not, then it is the deliberate intention of this Bill that such a matter should be decided by the subordinate judge or magistrate, because we do not propose to overburden the High Court with all kinds of litigation which can be easily determined by the subordinate judge and it does not affect the generality of the public but the particular individual affected by that legislation. With regard to the last amendment seeking to extend the privilege or the opportunity given to the presidency magistrate, to sessions judges, if he will refer, for instance, to sections 436,

316 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 437 and 438 of the Criminal Procedure Code there is ample power given both to the magistrate and the sessions judge to deal with cases of this sort to correct the error or refer the matter to the high court to get the error corrected. There is ample provision already. Mr. Speaker: The question is: “That clause 3, as amended, stand part of the Bill.” The motion was adopted. Clause 3, as amended, was added to the Bill. Clause 1 was added to the Bill. The title and the Enacting formula were added to the Bill. Dr. Ambedkar: I beg to move : “ That the Bill as amended be passed. ” Mr. Speaker: The question is : “ That the bill, as amended, be passed. ” The motion was adopted.

317PARLIAMENTARY DEBATES (31) * CODE OF CIVIL PROCEDURE (SECOND AMENDMENT) BILL The Minister of Law (Dr. Amedkar): I beg to move : “ That the bill further to amend the code of Civil Procedure, 1908, be taken into consideration. ” It is a very simple measure. Hon. Members will recall that after the partition of India certain difficulty has arisen in the matter of serving summonses and processes by courts in India to persons resident in Pakistan and issued by courts in Pakistan to persons resident in India. [PANDIT THAKUR DAS BHARGAVA in the Chair ] There are now two foreign territories and this matter has not been governed by any treaty so far. Consequently all processes had to be served through the post office which can never be depended upon as a sure method of communication. Recently an agreement has been made between India and Pakistan where both countries on a reciprocal basis have agreed that the processes issued by courts in one country may be sent to the courts in the other country and they will undertake to serve the summonses or the processes on the party resident there. The Bill seeks to give effect to this agreement. I might say that Pakistan has already given effect to this agreement and there is a law existing there. I hope the House will accept this Bill. Mr. Chairman : Motion moved : “ That the bill further to amend the Code of Civil Procedure, 1908, be taken into consideration. ” Shri Sidhva (Madhya Pradesh) : This is a welcome measure. Many of the displaced persons who have come here and who have claims over persons in Pakistan are confronted *P. D., Vol. 11, Part II, 20th April 1951, pp. 7176-78.

318 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES with the difficulty of not being able to recover the sums decreed on suits. I am glad that agreement has been arrived at between India and Pakistan and that Pakistan has also enacted a similar law. The question of serving a summons on the other side has been overcome. I want to enquire from the Minister in the event of a decree passed here against a person in Pakistan, is there any agreement arrived at by which they will see that it is executed and the amount is recovered and sent to the plaintiff in India. That is the main point involved in this question. Merely serving a summons will not do. The defendant may be indifferent and an ex-parte decree may be obtained. So long as there is no law regarding the execution of a decree why should the defendant spend money to engage a lawyer. Nothing is mentioned in that respect. I would like the Minister to enlighten us whether this question was considered in the discussion with Pakistan and if not, what will be the effect of the judgment of a court in India, which might pass a decree against a defendant in Pakistan? Without this provision the Bill will have no meaning. Dr. Ambedkar: As a part of the comity of nations every country agrees to execute judgments given by courts in other countries. Of course different countries have different rules of procedure but there is no difficulty with regard to the enforcement of the judgments. Some evidence that the judgment is a true one may be required. Section 13 of the Civil Procedure Code regulates it. Shri Naziruddin Ahmad (West Bengal): A foreign judgment cannot be executed in any country at all. The Civil Procedure Code does not provide for it. A foreign judgment gives only a right of suit and a fresh suit has to be instituted and a fresh decree has to be obtained. Dr. Ambedkar: That is only a matter of procedure. Shri Naziruddin Ahmed: The whole thing has to be fought out again. The point I am raising is that a foreign decree cannot be executed. Shri Sidhva: I want your guidance. I remember a case filed in India against a defendant in England. The decree was passed here but they could not execute it. A fresh suit had to be filed in London. I wonder whether without any such agreement a decree will have any value.