9911796707
TMI Blog1999 (5) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... remains wholly unsatisfied. It is contended that the judgment/decree is of a reciprocating country and consequently can be executed in this Court. Reliance for that purpose is placed on sections 13 and 44A of the Code of Civil Procedure 1908. To execute a foreign decree a decree holder must move this Court in Court in terms of Order XXI, Rule 10. Section 44A of C.P.C., requires that the Court executing the decree must issue notice to the judgment debtor in terms of Order XXI, Rule 22 of the Code of Civil Procedure. In terms of Order XXI, Rule 2(2) the judgment debtor can also inform the Court if any payment or adjustment has been made and apply to the Court to issue notice to the decree holder to show cause why such payment or adjustment should not be recorded as certified. Order XXI, Rule 2 also provides that no payment or adjustment shall be recorded at the instance of the judgment debtor unless the payment is made in terms of Order XXI, Rule 1 or the payment or adjustment is proved by documentary evidence or the payment or adjustment is admitted by or on behalf of the decree holder. Payment or adjustment which has not been certified or recorded as aforesaid cannot be recognized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment is passed only against defendant No. 1 i.e. Manubhai Jethabhai Patel. It is then pointed out that the judgment is violative of the provisions of section 13(b) of the Code of Civil Procedure and is not conclusive within the meaning of section 13 of the Code of Civil Procedure. It is contended that the said foreign judgment is not given on merits but is given exparte under the summary procedure of Rule 14 of the Rules of Supreme Court of England without consideration of the plaintiff's evidence. It is submitted that the writ in the proceedings instituted by the plaintiff in the Court of Queen's Bench England was served on defendant No. 1. In para 8 it is pointed out that the primary responsibility for payment of the amounts claimed by the plaintiff in the writ filed before the Court of Queen's Bench England on which foreign judgment is passed is that of Chandrakant Jathabhai and Pioneer Whole Sale Ltd. A rejoinder has been filed on behalf the decree holder-bank. It is contended that the decree is not violative of section 13(b) of the Code of Civil Procedure. It is denied that the judgment passed under Order 14 of the Rules of the Supreme Court of England is ex pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent debtor can be upheld. In so far as the decree holder is concerned he has to comply with the procedural requirements as set out in section 44A viz., to produce the certified copy of the judgment along with a certificate showing that the decree has not been satisfied. This in the present case the decree holder has complied with. He has applied for execution accompanied by these documents. In these circumstances it is the judgment debtor who will have to establish that the decree obtained is not a decree on merits. Under section 114 of the Indian Evidence Act the Court may presume the existence of any fact which it thinks to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. One of illustrations sets out that the Court may presume that judicial and official acts have been regularly performed. Under section 86 of the Evidence Act there s a presumption in so far as foreign judgments are concerned. In other words on production of certified copy of the judgment it may be presumed unless the contrary is proved that a decree has been passed in conformity with the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Algemene Bank Nederland NV v. Satish Dayalal Choksi, . In that case a foreign judgment passed by the Supreme Court of Hong Kong was sought to be executed before this Court. It was inter alia contended on behalf of the judgment debtor that the judgment was not ajudgment on merits and consequently could not be executed. It was his contention that a decree had been obtained against him based on a guarantee purported to have been given on 7th April, 1985. It was the case of the judgment debtor that the company in respect of which guarantee was given was incorporated in 1975 and that he was never a director of the company. It is then his contention that earlier it was a proprietary concern. He was in Hong Kong prior 1975. However since 1971-72 he resided in Bombay and carried on independent business. It was his contention that he may have given blank form of personal guarantee in favour of the plaintiff. After the suit was instituted, notice had been issued to the judgment debtor. The judgment debtor was granted unconditional leave. Matter was adjourned from time to time. The matter was ultimately fixed for hearing on 7th July 1987. On that date the defendant was absent and an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Wales. On 8th February, 1985 the plaintiff/decree-holder obtained a judgment against the five defendants including the respondent. Based on that decree, the decree was sought to be executed before the Calcutta High Court. One of the defences taken was that the judgment was not on merits in terms of section 13(b) of the Code of Civil Procedure. It may be mentioned that it was contended that the judgment was obtained against a judgment debtor who was not residing in England. The learned Single Judge referred to various judgments including the judgment of this Court in Algemene Bank's case (supra). On the facts of that case the learned Judge held that the judgment before him was not a judgment on merits within the meaning of section 13(b) of the Code. The learned Judge formulated the propositions of law in paragraphs 51, 52 and 53 of the said judgment. The learned Judge was pleased to hold that the judgment or decree passed by a Court under summary procedure where Court had no occasion to determine the truth or falsity of contentions raised or which may be raised and a judgment entered in favour of the plaintiff merely because the defendant failed to appear or to apply for leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by a special referee in the Court in London. No pleadings were delivered in the action other than the statement of claim endorsed in the writ. On 17th February 1939 the matter came before one of the official referees who issued a certificate. Pursuant to that certificate and order the formal judgment which in this country would be described as a decree was drawn up. When the application was made for execution the judgment debtors contended that the judgment given in England was not given upon the merits of the case, in that the defendants were not present in Court when the matter was heard and adjudicated upon. The Division Bench considered the question whether non appearance of the defendants would result in the judgment being not based on merits. The District Judge had held that the judgment was not on merits, which was appealed before the Calcutta High Court. In that context Derbyshire, C.J., observed as under: "If the mere absence of the defendant could prevent a judgment given in his absence from being one on the merits of the case, there would be every incentive for the defendant to be absent when the matter came on for disposal, and, in such an event, he would alwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VII, Rule (3). After considering the procedure contained in Order XXXVII the Division Bench observed: "After leave to defend is refused or is not obtained, the plaintiff is entitled to judgment. By reason of the defendant not appearing, the facts stated in the plaint must be admitted by the defendant. Undoubtedly, there are some similarities between the procedure of the suit which becomes ex parte by reason of the default on the part of the defendant and that of a summary suit under Order XXXVII of the Code in which the defendant either did not apply for leave or leave to defend was refused to him or having obtained leave did not furnish the security, and therefore, was precluded from contesting the suit". The Court held that the decree passed in such suits ex parte decided would be on merits. The Division thereafter observed: "......when leave is not obtained or leave is refused or where the defendant fails to comply with a conditional order, the defendant is precluded from further contesting the plaintiff's claim. By reason of the wordings of Order XXXVII, Rr. 2 and 3 of the Code, there is further disability upon the defendant. The facts stated in the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent debtor contended that there was any procedural violation of Order 14. On the contrary in the affidavit in rejoinder in paragraph 7 the decree holder has pointed that the first defendant filed defence through M/s. Chatrath Ariya, Solicitors. After this the decree holders applied for judgment under summary procedure. The solicitors were given notice and inter parte hearing took place and judgment was pronounced on merits on 3rd July 1996. No surrejoinder contesting the said averments has been filed on behalf the judgment debtor herein. It is thus clear that the judgment was pronounced after following the procedure of the Court of the reciprocating country. Once the judgment has been passed after compliance with the procedure of the reciprocating country, it will be difficult for this Court to hold that the said judgment is not on merits. If the mere absence of the defendant could prevent a judgment given in his absence from being one on the merits of the case, then as observed in the case of Sheikh Abdul Rahim (supra), there would be every incentive for the defendant to be absent when the matter came up for disposal in the country where the suit is filed and then contend before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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