Home Case Index All Cases FEMA FEMA + HC FEMA - 2014 (7) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (7) TMI 1371 - HC - FEMAExecution of decrees passed by Courts in reciprocating territory - maintainability of the present lis before the High Court of Delhi - presentation of a petition seeking execution of a decree of a superior Court of any reciprocating territory before a District Court - Whether the decree passed by a superior court of a reciprocating territory can be executed by the High Court of Delhi in exercise of its original jurisdiction in terms of Section 44A(1 )of the Code of Civil Procedure, 1908 ? - HELD THAT - As legislature has consciously in its wisdom chosen not to infuse the conception of competent jurisdiction in Section 44A of the Code of Civil Procedure, 1908 in contra-distinction to Section 39 which provides the mechanism for execution of domestic decrees . The requirements saddled on the executing court under the scheme of Section 39 are alien to the District Court‟; the jurisdiction of which may be invoked by the holder of a foreign decree in terms of Section 44A. Rather it may be pertinently observed that the legislature has vested such District Court the power to execute the foreign decree as if it had been passed by itself. The conception of competence of jurisdiction of executing court contained in Section 39 being wholly absent in the language employed by the legislature in Section 44A of the Code, the same cannot be circuitously injected by this Court as the same would tantamount to legislative re-writing, which is impermissible. The authoritative observations in M.V. Al. Quamar s case 2000 (8) TMI 1124 - SUPREME COURT unequivocally evince that the jurisdiction of the District Court in terms of Section 44A of the Code of Civil Procedure, 1908 can be invoked by a holder of a decree of a Superior Court of reciprocating territory, unhindered by the lack of jurisdictional competence of the said Court while dealing with the execution of domestic decrees For the reasons extensively highlighted by us we are of the considered view that the High Court of Delhi not being a District Court in terms of Section 44A of the Code of Civil Procedure, 1908 is not vested with the jurisdiction to entertain the present Execution Petition. In view thereof, the same is liable to be transferred to the Court of District Judge‟ within whose jurisdiction the property sought to be attached is situated for being dealt with in accordance with law. The appeal is allowed. The impugned order dated November 29, 2013 is set aside in so far it is held that the Delhi High Court would be the District Court to execute the foreign decree. Needless to state decision on the objections on merits is also set aside being without jurisdiction. The executing Court shall decide the objections uninfluenced by any observation made by the learned Single Judge on merits. The Execution Applications filed by the appellants are restored save and except the application which challenged the jurisdiction of this Court, which application is allowed.
Issues Involved:
1. Jurisdiction of the Delhi High Court to execute a foreign decree under Section 44A(1) of the Code of Civil Procedure, 1908. 2. Interpretation of 'District Court' in the context of Section 44A of the Code of Civil Procedure, 1908. 3. Applicability of the Delhi High Court Act, 1966 in determining the jurisdiction for execution of foreign decrees. 4. Comparison and analysis of relevant case laws and legislative history concerning the execution of foreign decrees. Issue-wise Detailed Analysis: 1. Jurisdiction of the Delhi High Court to execute a foreign decree under Section 44A(1) of the Code of Civil Procedure, 1908: The primary issue was whether the Delhi High Court could entertain the execution petition for a foreign decree. The court noted that Section 44A(1) of the Code of Civil Procedure, 1908, allows for the execution of decrees passed by superior courts of reciprocating territories in India as if they were passed by a district court. However, the term 'District Court' is crucial in determining jurisdiction. 2. Interpretation of 'District Court' in the context of Section 44A of the Code of Civil Procedure, 1908: The court examined the definition of 'District Court' under Section 2(4) of the Code of Civil Procedure, 1908, which includes the local limits of the ordinary original civil jurisdiction of a High Court. However, it was clarified that this does not mean that a High Court is a 'District Court' for all purposes. The court also referred to Section 24 of the Punjab Courts Act, 1918, and Section 3(17) of the General Clauses Act, 1897, which define 'District Court' as the court of the District Judge, explicitly excluding High Courts in their ordinary or extraordinary original civil jurisdiction. 3. Applicability of the Delhi High Court Act, 1966 in determining the jurisdiction for execution of foreign decrees: Section 5(2) of the Delhi High Court Act, 1966, confers ordinary original civil jurisdiction on the Delhi High Court for suits exceeding a certain pecuniary value. The court noted that while the Delhi High Court has exclusive jurisdiction for suits valued over twenty lakhs, this does not automatically make it a 'District Court' for the purposes of Section 44A of the Code of Civil Procedure, 1908. The court emphasized that the legislative intent was not to treat the High Court as a 'District Court' for executing foreign decrees. 4. Comparison and analysis of relevant case laws and legislative history concerning the execution of foreign decrees: The court reviewed several precedents and legislative developments, including the Judgments Extension Act, 1868, the Administration of Justice Act, 1920, and the Foreign Judgments (Reciprocal Enforcement) Act, 1933. The court also analyzed relevant Indian case laws, such as Arjan Singh v. Union of India, Bakshi Lochan Singh v. Jathedar Santokh Singh, and Oakwell Engineering Ltd. v. Enernorth Industries Inc. It concluded that these cases did not support the interpretation that the High Court of Delhi could be treated as a 'District Court' under Section 44A of the Code of Civil Procedure, 1908. Conclusion: The court held that the High Court of Delhi is not a 'District Court' for the purposes of Section 44A of the Code of Civil Procedure, 1908, and therefore, does not have jurisdiction to entertain the execution petition for the foreign decree. The impugned order was set aside, and the matter was directed to be transferred to the Court of the District Judge for further proceedings. The court emphasized that the executing court should decide the objections on merits without being influenced by the observations made by the learned Single Judge.
|