Section 44A CPC - High Courts can exercise its original civil jurisdiction for executing a decree of a foreign Court subject to pecuniary limitation of the District Court exceeds.
The Hon'ble Apex Court directed the Division Bench of the High Court to take up the old matter of foreign decree on priority considering the long awaiting execution in accordance to law not later than 4 months.
A Bench of Justices Ajay Rastogi and Abhay S. Oka quashed a judgment of the Division Bench of the High Court of Delhi regarding execution of foreign decree, under Section 44A of the Code of Civil Procedure, 1908, obtained by the Decree Holder in the year 2006 from United Kingdom of Great Britain and Northern Island.
The money decree of the amount exceeding 20 lakhs in Indian rupee, was obtained from the High Court of Justice, Queen's Bench Division, Commercial Court, United Kingdom which is a superior court of a reciprocating territory as per Section 44A of the Code.
Facts in brief:
The case dates back in the year 2006 when the money decree was obtained by the Appellant/decree holder from the notified superior Court of the reciprocating territory vide notification issued by the Ministry of Law in 1953. Subsequently the appellant filed an execution application for execution of money decree in the Learned Single Bench of the High Court of Delhi wherein the Court had directed the Judgment Debtor to deposit the original title deeds of the property and to file an affidavit clarifying the property is free from all encumbrances or charge, no written consent is required from the State Bank of India for hypothecation of the goods and assets and there is no lien/charge created on the property.
Thereafter assailing the judgment of the High Court, the Judgment Debtor filed petition before the Division Bench of the High Court. The Bench The High Court had by a judgment passed that "Section 44A of the Code is an independent right conferred on a foreign decree holder for enforcement of its decree in India. It is a fresh cause and has no co-relation with jurisdictional issues. The scheme of Section 44A of the Code is alien to the scheme of domestic execution as provided under Section 39(3) of the Code". It held that the Court not being a District Court, in terms of Section 44A of the Code is not vested with the jurisdiction to entertain execution petition and directed to be transferred to the Court of District Judge within the jurisdiction of the property.
The above findings of the High Court became the subject matter of the appeal before the Supreme Court of India.
Learned Senior Counsel Dr. Abhisekh Manu Singhvi appeared and submitted for the Appellant that the jurisdiction for execution of a foreign Court's decree of a reciprocating territory vests with the High Court of Delhi as per the pecuniary jurisdiction provided in Section 5(2) of the Delhi High Court Act, 1966 and also vests with the ordinary original civil jurisdiction. He also submitted that the High Court has committed a manifest error in holding that the High Court of Delhi is not vested with the jurisdiction to entertain execution petition as being District Court defined in terms of Section 44A of the CPC.
It is pertinent to note that in the year 2015 the pecuniary jurisdiction of the High Court to entertain the execution petition was enhanced to Rs. 2 Crores
Whereas the learned Senior Counsel, Mr. Rakesh Dwivedi for the respondent/Judgment Debtor supported the finding of the Division Bench of the High Court. He argued submitting - "The domestic decree can indeed be executed by the Court which passed the decree or Court of competent jurisdiction to which it is transferred for execution. So far as execution of foreign decree is concerned, it is being governed by an independent right conferred under Section 44A of the Code which unequivocally confers exclusive jurisdiction in this regard on a “District Court” and the words mandating the competence of the executing Court, to try the original cause, in which the decree was passed, are conspicuous by their absence, in this provision".
The Counsel also submits that Section 44A of the Code is an independent, enabling provision which gives the decree holder a fresh and new cause of action irrespective of the original character of the cause in which the decree came to be passed.
The pecuniary jurisdiction is concerned with the domestic decree as referred under Section 38 and 39 of the Code and in term of execution of money decree of a foreign Court, no other Court is competent other than District Court - Mr. Dwivedi argued.
A question cropped up before the Supreme Court
Whether the High Court of Delhi in exercise of its original jurisdiction is a competent Court to entertain a petition for executing a money decree(in excess of Rs.20 lakhs) of a foreign Court which is notified as a superior Court of reciprocating territory under Section 44A of the Code.
OBSERVATIONS
Section 44A of the Code provides for execution of decrees passed by the foreign Courts in reciprocating territories. It, inter alia, stipulates that where a certified copy of a decree of any of the superior Court 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 a District Court.
Together with the certified copy of the decree, a certificate from such superior court is to be filed stating the extent, if any, to which the decree has been satisfied or adjusted. Such a certificate is the conclusive proof of the extent of such satisfaction or adjustment.
Sub section 3 of Section 44A of the Code further lays down that provisions of Section 47 of the Code shall apply to such execution proceedings and the Court can refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) in Section 13 of the Code.
To read the expression “District Court” in Section 44A for execution of foreign decree, it will be construed to be a Court holding ordinary original civil jurisdiction in terms of its pecuniary limits as being notified under Section 5(2) of the Act 1966.
The Hon'ble Apex agreed the submission of the Appellant's Counsel and opined that no doubt once the pecuniary jurisdiction at the given point of time exceeds Rs. 20 lakhs as notified by the High Court under Section 5(2) of the Act 1966 (later vide notification dated 10th August, 2015 (w.e.f. 26th October, 2015) pecuniary limits has been revised to Rs.2 crores), it is the High Court of Delhi which holds its exclusive jurisdiction as ordinary original civil jurisdiction to execute a foreign decree under Section 44A of the Code and it goes without saying that execution always is in continuation of the proceedings.
The Section 5(2) of the Act 1966 which starts with a non-obstante clause empowers the High Court of Delhi to exercise its ordinary original civil jurisdiction in every suit where the pecuniary value exceeds, as being notified by the competent authority and thus, the High Court of Delhi indeed holds original civil jurisdiction in a suit where the value exceeds its pecuniary limits and if Section 24 of the Punjab Courts Act, 1918 is read with Section 5(2) of the Act 1966, it is quite clear that certain jurisdiction has been taken away from the District Court and conferred with the High Court of Delhi and this original civil jurisdiction is only in respect to the suits where the pecuniary limit exceeds as notified by the authority under Section 5(2) of the Act 1966 and that would make the High Court of Delhi, the principal Court of original civil jurisdiction, for all practical purposes.
The Court also viewed:
"the Division Bench has proceeded on the basis of the expression “District Court”, as being referred under Section 44A of the Code but it has not taken into consideration the other relevant provisions of which a reference has been made by us while coming to the conclusion that the expression “District” as defined under Section 2(4) of the Code only lays down the limits of the jurisdiction of the principal civil Court of original jurisdiction and that includes the ordinary original civil jurisdiction of the High Court and once the pecuniary jurisdiction exceeds as being notified under the relevant statute, the jurisdiction vests exclusively with the High Court as an ordinary original civil jurisdiction for execution of a foreign decree under Section 44A subject to the just objections which are available to the parties/judgment debtor as envisaged under Section 13 of the Code".
Hence in view of above observations the Hon'ble Apex Court allowed the appeal of the appellant and directed the Division Bench of the High Court to take up the matter on priority considering the long awaiting execution in accordance to law not later than 4 months.
In the judgment, the Court emphasised, referring to this case, on the old saying that the difficulties of the litigant in India begin when he has obtained a decree as noticed back in 1872 by the Privy Council in relation to the difficulties faced by decree holder in execution of decree. There has been no improvement since more than a century.
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