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TMI Blog2016 (12) TMI 1826X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant filed an application challenging the jurisdiction of the English Court. In that application, the reliefs sought by the appellant include the relief that the respondents-original claimants have to pay the costs to the appellant occasioned by filing the application to be summarily assessed. The English Court by its Order dated 19th October, 2006 dismissed the claim of the appellant and further directed it to pay the costs of application to the respondents-original claimants set at GBP 12,229.75. Thereafter it appears that the appellant agreed to pay the costs and sought for some time. When the respondents filed a petition for execution in India, the appellant opposed it in an application on the ground that the order of English Court is not executable. The executing Court dismissed the same which was confirmed by the High Court. Hence the appellant is before us by way of this appeal. The appellant made following submissions assailing the Judgment of the Courts below- An interlocutory Order of English Court with respect to its own jurisdiction (with or without a direction for payment of costs) does not amount to a judgment 'on merits of the case' and is therefore not conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date the Judgment is given. The rules also provide that a judgment or order takes effect from the day when it is given on merits or such dates as Court may specify. The Rules further provide that a party must comply with a judgment or order for the Payment of an amount of money (including costs) within 14 days of the date of Judgment or order unless the judgment or order specifies a different date for compliance or any of the rule specify a different date for compliance or the Court has stayed the proceedings or execution. Moreover, all the Orders of the Court are required to be obeyed and implemented, unless the Court itself sets a date for its non-execution. Otherwise orders will only remain a piece of paper and merely decorate the file of litigant, which would lead to an impression being created in the minds of the litigants that they could with impunity avoid to obey the Court Order. It is neither the legislative intent nor the desire of the Judiciary. Legislative intent of executing Orders relating to payments of costs is clear from amendment carried out to section 36, CPC to clarify that the provisions relating to execution of decree or order include payment under a decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ign judgment not conclusive : A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except- where it has not been pronounced by a Court of competent jurisdiction; where it has not been given on the merits of the case; where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; where the proceedings in which the judgment was obtained are opposed to natural justice; where it has been obtained by fraud; where it sustains a claim founded on a breach of any law in force in India. Section 14. Presumption as to foreign judgments: The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. A plain reading of Section 13, CPC would show that to be conclusive an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to pay the costs. The appellant, therefore, cannot be permitted to object the execution. It cannot be permitted to blow hot and cold at the same time. In our opinion, it is a pure abuse of process of law and the Courts should be very cautious in entertaining such petitions. In International Woollen Mills v. Standard Wool (UK) Ltd.[AIR 2001 SC 2134], this Court observed : "...Even where the defendant chooses to remain ex parte and to keep out, it is possible for the plaintiff to adduce evidence in support of his claim (and such evidence is generally insisted on by the Courts in India), so that the Court may give a decision on the merits of his case after a due consideration of such evidence instead of dispensing with such consideration and giving a decree merely on account of the default of appearance of the defendant. In the former case the judgment will be one on the merits of the case, while in the latter the judgment will be one not on the merits of the case. Thus it is obvious that the non-appearance of the defendant will not by itself determine the nature of the judgment one way or the other. That appears to be the reason why Section 13 does not refer to ex parte judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect to a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment. As far as the explanation with regard to reciprocal territory is concerned, there is no dispute that England is a reciprocating territory for the purpose of above Section. Section 44A of CPC indicates an independent right conferred on a foreign decree holder for enforcement of a Decree/Order in India. Section 44A was inserted by Section 2 of the Civil Procedure Code (Amendment) Act, 1937 (Act No. 8 of 1937). This Section is meant to give effect to the policy contained in the Foreign Judgments (Reciprocal Enforcement) Act, 1933. It is a part of the arrangement under which on one part decrees of Indian Courts are made executable in United Kingdom and on the other part, decrees of Courts in the United Kingdom and other notified parts of Her Majesty's dominions are made executable in India. It is to be seen that as United Kingdom is a reciprocating territory and the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osts. Hence in our considered opinion, the order passed by the Foreign Court is conclusive in that respect and on merits. Hence executable as a decree and accordingly the issue is answered. In re Issue Nos. 3 & 4 - The next contention advanced is that the decree for costs does not attract the Explanation II of Section 44A which concerns itself with taxation or other charges of like nature or in respect of fine or other penalty. We have to first see the nature of the costs imposed by the decree for interpreting the relevant explanation. Before referring to the principles/guidelines in the decisions cited, it would be apposite to advert to the concept of 'costs' and the general principles governing the award of costs. Law Commission in its 240th Report on "Costs on Civil Litigation" provides valuable resource on nature of costs in India as well as England. The 'costs' signifies the sum of money which the Court orders one party to pay to another party in respect of the expenses of litigation incurred. Except where specifically provided by the statute or by rules of the Court, the costs of proceedings are in the Court's discretion. In Johnstone v. The Law Society of Prince Edward Is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CPR) in the USA contains general rules about costs and entitlement to costs. The rules are supplemented by practice direction. However, part 44 does not apply to the assessment of costs to the extent different provisions exist, for eg, Access to Justice Act, 1999 and the Legal Aid Act, 1988. Further, the general rule that the unsuccessful party will be ordered to pay the costs of the successful party unless the court makes a different order does not apply to family proceedings. It is important to note that a penalty in this sense normally means a sum payable to the State, not to a private claimant, so the costs imposed on the basis of the indemnity is not a penalty or tax. Therefore, the Explanation II to Section 44A does not refer to the costs as contemplated under Section 35 of the CPC. The costs having been quantified have assumed the character of a money decree for costs and cannot be equated, either with a fine or penalty which is imposed on a party by the Court or taxes claimed and are taxes payable to a local authority, Government, or other charges of a like nature. The appellant has advanced an argument that as per Section 35A of the CPC, no Court should pass any order fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... press upon that the amended Section 35(3) of the CPC permitted a Civil Court to grant interest on costs. The unamended Section 35(3) stated as follows: The Court may give interest on costs at any rate not exceeding six per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. This Provision was consciously omitted in 1956 (pursuant to Act 66 of 1956). In view of the deletion of Section 35(3) of the CPC, it is argued that grant of interest on costs is no longer recognized under India law. In this context, it is educative to read the following comments made in the Debate on the Bill against the deletion of Section 35 (3), by Hon'ble Member of Lok Sabha Shri Tek Chand; "..In this connection, a reference has been made to section 35, sub- section (3), which according to clause 3 of the Bill, is to be omitted. Not that I have usurious propensities, but I do not like this provision. It is true that there should not be any profiteering by the people; I concede that, but there are instances when the costs amount to five figures or more, and there is no reason why, when an unsuccessful party is subjecting the successful party not only to a long di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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