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TMI Blog2014 (7) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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‟ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the validity of the decree, keeping in view the objections filed and in said eventuality the only course available would be to set aside the impugned order as being without jurisdiction with the observation that the decision by the learned Single Judge on merits would be treated as a view without jurisdiction, leaving it open for the executing court to decide the objections uninfluenced by any observations made by the learned Single Judge. 3. Thus, the singular issue arising for our consideration in the present appeal is : 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.‟ 4. Our journey must commence therefore by noting the statute which requires a consideration. Section 44A(1). It reads as under:- 44A. Execution of decrees passed by Courts in reciprocating territory.- (1) Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inadequate and soon fell to the challenge of its critics. 12. According to Professor Gutteridge, the doctrine of an acquired right explains the reasons for the enforcement of a foreign judgment, and this is the doctrine to which Dean H.E.Read probably refers when he explains: The true basis upon which the Anglo-Dominion authorities place the recognition of a foreign judgment is that it proves the fact that a vested right has been created through the judicial process by the law of a foreign law district. 13. Several decisions by the Courts in England have now accepted the view that the recognition of a foreign judgment is based on the assumption that it creates a new legal obligation. It proceeds from the concept that a foreign judgment, creates by fiction, a contract between the parties. 1870-8 QB 155 Schibsby v. Westenholz (at p. 159; per Blackburn, J) 14. Finally, the school led by Von Bar attempts to harmonize the recognition of foreign judgments with the application of foreign laws, by drawing attention to the relationship between law and judgment. A judgment, in his view, is a lex specialis, a law regulating one single case. 15. These are among the more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation only if its provisions had been extended by an Order-in-Council to the Dominion in which a Superior Court passed the judgment. Registration was thus based on reciprocity. 19. In 1933 the Foreign Judgments (Reciprocal Enforcement) Act came into force, the effect of which was to extend the provision for registration to foreign judgments of Superior Courts in foreign countries even outside the Dominions. But the extension was to be by Orders-inCouncil and on a reciprocal basis. Provisions are found in the Act, which enable a person, who holds a final and conclusive foreign judgment in his favour of a Superior Court in a reciprocating territory, to apply to the British Court in England for registration within six years of such judgment. The British Court was no longer left with the discretion to decline the registration. The provision for registration was confined to foreign judgments for recovery of money. On certain grounds, specified in the Act, liberty was given to the person against whom the judgment was given to have the registration set aside. The effect of registration under the Act would appear to be that the foreign judgment registered would, for the purpose of execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; means any country or territory, situated in any part of His Majesty's Dominions or in India which the Governor-General-inCouncil may, from time to time, by notification in the Gazette of India, declare to be reciprocating territory for the purposes of this section; and ' superior Courts ', with reference to any such territory, means such Courts as may be specified in the said notification. 22. To the section was added a further Explanation setting out the meaning and scope of a decree with reference to a superior Court. 23. In view of the constitutional changes in 1937, certain consequential amendments were made to the section by the Government of India (Adaptation of Indian Laws) Order, 1937. 24. Later upon attaining of Independence and the adoption of the Constitution of India, India being proclaimed a sovereign democratic republic on and from January 26, 1950, it became necessary to amend Section 44A, and by the Civil Procedure Code (Amendment) Act, 1952 the provision was recast and the definition of reciprocating territory in Section 44A was enlarged to cover any country or territory outside India which the Central Government, may by notification i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the decree passed by a Foreign Court in terms of the provisions of Section 44A of the Code of Civil Procedure, 1908. 33. What is meant by the expression principal Civil Court of original jurisdiction ? 34. The expression principal Civil Court of original jurisdiction has not been defined in the Code of Civil Procedure, 1908. 35. Such being the position, we travel beyond the realm of the Code of Civil Procedure, 1908 and look at other Statutes to ascertain the meaning of the expression principal Civil Court of original jurisdiction . 36. We first have a glance at the Punjab Courts Act, 1918, which is applicable to Delhi. Section 24 of the Punjab Courts Act, 1918 reads as under- 24 . District Court to be principal Civil Court of original Jurisdiction The Court of the District Judge shall be deemed to be the District Court or principal Civil Court of original jurisdiction in the district . (Emphasis Supplied) 37. At the outset we may note that two things are discernible from a reading of Section 24 of the Punjab Courts Act. Firstly, the term Court of District Judge , has by fiction of law, deemed to be the District Court and secondly, the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 290 Hyat Mahomed and Ors v. Shaikh Mannu and Ors., wherein it was held by Rankin, C.J that it is quite true that the word District in the Code of Civil Procedure, 1908, includes not merely the local limits of what is ordinarily called a District Court, but includes the local limits of a High Court in its ordinary original civil jurisdiction, however, that is a very different thing indeed from saying that the words District Court wherever they appear in the Code of Civil Procedure, 1908 mean and include a High Court in the exercise of its ordinary original civil jurisdiction. 45. Reading of Section 24 of the Punjab Courts Act, 1918 applicable to Delhi and Section 3(17) of the General Clauses Act, 1897 also reinforces and lends credence to this conclusion. 46. At this juncture it would be apposite to take note of Section 5 of Delhi High Court Act, 1966 which deals with the jurisdiction of the High Court of Delhi. The said provision had been heavily pressed into service by the learned Senior Counsel appearing on behalf of the respondent/decree holder in support of the submission that the High Court of Delhi would qualify as the District Court in terms of Section 44A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi, for entertaining suits the value of which exceeds rupees twenty lakhs. The said proposition is unexceptionable and cannot be assailed. 50. It is also true that the mechanism contemplated under the Code of Civil Procedure, 1908 for execution of decrees passed by the Courts governed by provisions of the Code, (hereinafter referred as domestic decrees ) requires that the decree be executed by a court which either passed the said decree (Section 38) or upon transfer by a transferee court , which must be a court of competent jurisdiction in terms of territorial as well as pecuniary jurisdiction (Section 39). The test of competence of a transferee court to execute a decree, as provided under Section 39 of the Code, is whether the said court would have jurisdiction to try the suit in which such decree was passed. 51. However, we find a complete hiatus in the propositions sought to be projected by the respondent/decree holder to establish maintainability of the present action, inasmuch as there is no tenable jurisprudential foundation to construe the High Court of Delhi as the District Court in terms of Section 44A of the Code of Civil Procedure, 1908 and neither any l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of the Punjab High Court reported as AIR 1956 SC 87 Merala Ramanna v Nallaparaju Ors. and AIR 1962 Punjab 394 (10) Mehar Singh Anr. v Kasturi Ram Ors. and the provisions of Section 37 of the Code of Civil Procedure, 1908, defining the expression court which passed a decree , the Full Bench held that both, the subordinate Court which passed a decree prior to the enactment of the Delhi High Court Act, 1966, and the High Court of Delhi, would have concurrent jurisdiction to execute the decree passed in a suit value whereof was more than rupees twenty five thousand. 58. A microscopic analysis of the said decision would evince that the Full Bench had proceeded on the premise that after the enactment of Delhi High Court Act, the High Court would be competent to execute a decree passed in a suit of valuation of more than rupees twenty five thousand. In this backdrop, the Full Bench delved upon the fact that whether a subordinate Court which had passed the decree of valuation of more than twenty five thousand rupees prior to the enactment of Delhi High Court Act would have jurisdiction (along with the High Court) to execute the said decree even after the enactment of Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court Act employs the expression ordinary original civil jurisdiction in relation to the jurisdiction conferred by it upon the High Court of Delhi and there is nothing to equate the same as principal Civil Court of original jurisdiction . In our understanding, the raison d' tre of the said decision is that in view of the mandate of the non-obstante clause contained in the Section 5(2) of the Delhi High Court Act, 1966, the High Court of Delhi enjoys exclusive competence to try suits, the value of which exceed rupees fifty thousand, as contemplated then. As highlighted earlier the said case pertained to institution of a suit under Section 92 of the Code of Civil Procedure, 1908 and since the plaint in the said suit was valued at rupees two lakh fifty thousand the High Court was rightly held to be competent to try the said suit. This Court while rendering its decision was not concerned with the interpretation of Section 44A of the Code of Civil Procedure, 1908 which deals with execution of foreign decrees and not trial of suits, to which the mandate of Section 5 (2) of the Delhi High Court Act, 1966 applies. It is a settled proposition that execution is distinct from the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deceased ordinarily resided. Section 2(bb) of Indian Succession Act defines District Judge to mean the Judge of a principal Civil Court of original jurisdiction . After take into consideration the provisions of Section 24 of Punjab Courts Act and Section 5(2) of Delhi High Court Act it was held by the learned Single Judge that the jurisdiction of High Court of Delhi envisaged in Section 5(2) of the Delhi High Court Act is only in respect of suits, the value of which exceeds rupees one lakh and the same would not make the High Court of Delhi a principal Civil Court of original jurisdiction in Delhi. It was thus held that the High Court of Delhi is not competent to entertain petitions seeking grant of succession certificate. Yet again, this decision is in consonance of the view taken by us in the present case. 67. We may now advert our attention to a decision of a learned Single Judge of this Court reported as 2006 VII AD (Delhi) 863 Oakwell Engineering Ltd. v Enernorth Industries Inc. upon which much emphasis was laid by the learned Senior Counsel appearing on behalf of the respondent-decree holder. 68. In the said case, one of the questions which had arisen for adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to appreciate the observations contained in the said judgment. 72. The matter before the Supreme Court arose from the Andhra Pradesh High Court wherein an Execution Petition was filed before a learned Single Judge in terms of Section 15 of the Admiralty Courts Act and Section 44A read with Order XXI Rule 10 of the of Code of Civil Procedure, 1908 for executing the decree issued by the High Court of Justice Queens Bench Division Admiralty Court in an action by the salvaging company (decree-holder) against the owner of the vessel - M.V.AL QUAMAR ex AL TABITH at the relevant time of contract (judgment-debtor), claiming damages for repudiation of an L.O.F. salvage contract. It may be highlighted that at the time of preferring the Execution Petition the vessel of the judgment-debtor was located in the territorial waters of Andhra Pradesh. 73. Pending the Execution Petition, the decree-holder (respondent No.1 before the Supreme Court) prayed for an interlocutory order for the issuance of a warrant of arrest against the vessel together with Hull, tackle Engines, Machinery equipment s, stores etc. The learned Single Judge of the Andhra Pradesh High Court granted an interim order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led principles of common law in matters relating to execution of decree for a sum of money; and (iv) The fundamental principles of execution of domestic decrees comprised in Section 39 of the Code of Civil Procedure, 1908 also apply to Section 44A and in view thereof the Andhra Pradesh High Court is not a competent court which can entertain execution proceedings under Section 44A of the Code of Civil Procedure, 1908. 77. Therefore, it was in light of the above highlighted submissions that the Hon ble Supreme Court proceeded adjudication. 78. It would be pertinent for us to highlight that Mr.Justice U.C.Banerjee, at the very outset in his lead judgment delineated the issue arising for consideration. The relevant observations are reproduced herein below:- Assumption of Admiralty jurisdiction by Andhra Pradesh High Court and passing of an order of arrest in execution of a judgment and decree of the High Court of Justice Queens Bench Division, Admiralty Court in London in case No. 1994 Folio No. 1693 dated 9.11.1988, is the key issue for discussion in these appeals by the grant of special leave . (Emphasis supplied) 79. Similarly Mr.Justice S.B.Majumdar, in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issues arising for our consideration were neither agitated before the Supreme Court and were therefore, not decided by the Court. 82. Apropos the submission that the High Court of Delhi would be the only court of competent jurisdiction in Delhi to execute the present decree in view of the mandate of Section 39 of the Code of Civil Procedure, 1908 read with Section 5(2) of the Delhi High Court Act, 1966 and therefore it ought to be understood as the District Court in terms of Section 44A of the Code, it may be stated that the luminous observations of the Supreme Court of India in M.V. Al. Quamar s case (Supra) clearly negate the said submission as it has been observed that the requirement that the transferee Court‟ must be a competent court and should be shown to have jurisdiction to pass such a decree even originally is conspicuously absent in Section 44A. It was further held that Section 44A indicates an independent right conferred on a foreign decree-holder for enforcement of its decree in India. It is a fresh cause of action and has no co-relation with jurisdictional issues. The scheme of Section 44A of the Code of Civil Procedure, 1908 is alien to the scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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