TaxTMI 
TaxTMI 
2014 (7) TMI 1371
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....hat the foreign decree was not executable being not on merits was not sustainable. (e) That the objection that the Courts in England has no jurisdiction to pass the decree was not sustainable. 2. As recorded in the order dated May 01, 2014 passed in the appeal the parties had consented that we should first decide the issue whether the Delhi High Court could entertain the execution petition filed by the respondent to execute a foreign decree. The reason was that if the Delhi High Court did not have the jurisdiction to entertain the execution petition filed, it would lack the jurisdiction to decide 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 reciproc....
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....enunciated in this regard have their faithful adherents, but it has been felt that a rational basis in each case is not always easily discernible. 11. Amongst the earliest doctrines propounded in England was the one based on the principle of 'comity of Nations'. This principle, according to Cheshire, means that 'in order to obtain reciprocal treatment from the Courts of other countries, we are compelled to take foreign judgments as they stand and to give them full faith and credit.' It is not necessary to trace the reasons here, but this doctrine came to be recognized as 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 for....
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....e British Court in its discretion could allow or refuse the application. The registration was, therefore, not as of right unlike under the earlier Act of 1868. Further the 1920 Act provided for certain conditions or restrictions for registration some of which were analogous to those mentioned in Section 13 of the Code of Civil Procedure, 1908 in India. Once a foreign judgment of a Dominion was registered at a British Court, it was regarded to have the same force as if it had been initially obtained in the registering Court. The Act of 1920 allowed registration 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 recipro....
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.... "44A. Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in a District Court, the decree may be executed in British India as if it had been passed by the District Court. Explanation 1--'Superior Courts', with reference to the United Kingdom, means the High Court in England, the Court of Sessions in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County Palatine of Durham. Explanation 2.--'Reciprocating territory' 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 sectio....
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....sdiction'. 31. When so replaced, Section 44A of the Code of Civil Procedure, 1908 would read as follows: "Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a principal Civil Court of original jurisdiction, the decree may be executed in India as if it had been passed by the principal Civil Court of original jurisdiction.‟ 32. Meaning thereby, it would be the principal Civil Court of original jurisdiction which would be competent to execute 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 read....
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....reference to the local limits of the ordinary original civil jurisdiction of a High Court only after defining the 'District Court' as the 'principal Civil Court of original jurisdiction'. Therefore, it is evident that the legislative intent was not to treat a High Court as falling within the ambit of its preceding expression 'District Court'. 44. In this regard we may draw support from the observations of the Calcutta High Court in its decision reported as AIR 1927 Cal 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 reinf....
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....e 'principal Civil Court of original jurisdiction' (a connotation which we find is used interchangeably with 'District Court' or the 'Court of the District Judge'), for suits valued more than rupees twenty lakhs. 49. We may at the outset express our agreement to the contention of the respondent/decree holder that the High Court of Delhi enjoys original civil jurisdiction, to the complete exclusion of all the Courts established in the territory of 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 ....
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....to 31-10- 1966; and (b) Whether Section 16 read with Section 5 of the Delhi High Court Act contemplates execution proceedings pending on 31-10-1966 as falling within the ambit of proceedings which stand transferred to the High Court by virtue of Section 16 of the Delhi High Courts Act, if the same were pending before a Subordinate Judge on 31-10- 1966." 57. After noting the decisions of the Supreme Court and the Full 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 compete....
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....views expressed by the DivisionBench, we find no reasoning in the judgment to indicate as to how the jurisdiction of the High Court as contemplated under Section 5(2) of the Delhi High Court Act, 1966 could lead to the conclusion that the High Court of Delhi is the 'principal Civil Court of original jurisdiction' for suits valued above the prescribed amount. As observed by us earlier, Section 5(2) of the Delhi High 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'être 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....
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....said case, one of the questions arising for the consideration of this Court was whether the 'District Judge' was competent to entertain the petition under Section 370 and 372 of Indian Succession Act, 1925 for grant of succession certificate. Section 371 of Indian Succession Act prescribes that a petition for grant of succession certificate can be filed in the 'Court of the District Judge' within whose jurisdiction the 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 consonan....
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....ernational) Ltd. The decision has been relied upon by learned Senior Counsel appearing on behalf of the respondent-decree holder to demonstrate that a petition for execution of a foreign decree preferred before the Andhra Pradesh High Court was held maintainable. 71. At the outset we may proceed to notice the factual conspectus of the case and the issues which fell for consideration of their Lordships, in order 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-d....
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....not applicable to Admiralty jurisdiction in view of Section 112 of the Code; (ii) The judgment of the English Court cannot be termed to be judgment in personam and therefore the Execution Petition for the arrest of the vessel is not maintainable; (iii) Section 44A is not a self contained code for the execution of a decree, the same being not exhaustive and has to be read along with well settled 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 jurisdi....
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....ression 'District Court' occurring in Section 44A of the Code of Civil Procedure, 1908 in light of Section 2(4) of the Code, Section 24 of the Punjab Courts Act, 1918 and Section 3(17) of the General Clauses Act, 1897. We have no hesitation in concluding that no benefit can be availed by the respondent-decree holder by placing reliance on the said judgment as the 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 orig....