The HC of Delhi was dealing with the petition filed by the judgment debtor under the provisions of Order XLVII Rule 1 r/w Section 151 CPC seeking review of order dated 24.05.2021. The aforesaid directions have been passed against the judgment debtor in the execution petition, wherein execution of a foreign judgment passed by the High Court of Justice Business & Property Courts of England & Wales Commercial Court is sought by the decree holder.
Petitioner’s Contention:
The learned counsel for the judgment debtor has submitted that under the provisions of Sections 13 and 44A of the CPC, the judgment debtor is entitled to contest a foreign decree and for execution thereof, issuance of a show-cause notice under Order XXI Rule 22(1) CPC is mandatory. He further submitted that the foreign Award/decree in question, has neither been passed by a Court of competent jurisdiction, nor is it a judgment on merits. It was pointed out that the order under review suffers from material errors, wherein powers under Order XXI Rule 22(2) of the CPC have been invoked, dispensing with requirement of issuance of Show Cause Notice. He contended that ex parte directions issued by this Court vide order dated 24.05.2021 has caused great prejudice to the judgment debtor and thereby, this review petition deserves to be allowed.
Respondent’s Contention:
The learned counsel on behalf of decree holder submitted that the grounds on which the present review petition has been preferred is beyond the scope of Order XLVII Rule 1 CPC. He submitted that this Court after examination of the facts, recorded its satisfaction to invoke Order XXI Rule 22(2) CPC and only thereafter, issued the directions in dispute.
He further submitted that the contention of judgment debtor that scheme for enforcing foreign decrees through Indian Courts is different from enforcing domestic decrees, is misconceived and provisions of Section 44A provides that “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”. He further submitted that provisions of Order XXI CPC also do not differentiate between execution of a foreign decree and a domestic decree.
He further drew attention of the Court to a copy of Third Statement before the court at UK to show that judgment debtor was duly served. However, the judgment debtor did not appear before the UK Court nor responded and even after passing of final judgment, no objection regarding the jurisdiction of UK court nor any appeal was preferred by him and now, at the stage of execution of decree, he cannot be permitted to raise such objections before the executing court.
HC’s observations:
After the submissions made by both the parties the HC observed that according to judgment debtor, he was purportedly served with advance notice e-mail. However, learned senior counsel appearing on his behalf submitted that the decree holder despite having knowledge of resignation of judgment debtor from the Directorship of the company, sent the advance notice e-mail on the official email address of judgment debtor, which was not accessible to him.
The Court found that when this matter first came up for hearing, learned counsel for decree holder prayed for orders against the judgment debtor in terms of principles laid down in M/s Bhandari Engineers & Builders Pvt. Ltd. Vs. M/s Maharia Raj Joint Venture, however, no such order was passed and matter was adjourned at the request of counsel for decree holder to file written submissions to satisfy this Court in this regard.
The Court found that “the intention and purport while passing the aforesaid interim direction was to safe guard the interest of decree holder and since judgment debtor has been permitted to only furnish details of his assets and he has been restrained to transfer and alienate his assets limited to the decretal amount only and also, has been permitted to maintain his ordinary course of business such as payment of salary/dues etc. as well as to discharge his liability in respect of bank and financial institution, no prejudice is caused to him.”
The HC relied upon the case of Parsion Devi Vs. Sumitri Devi where the SC has dealt with the scope and ambit of the review jurisdiction under XLVII Rule 1 CPC and has observed that “Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise”.
The HC also relied upon the case of Lily Thomas Vs. Union of India, where the SC has observed “that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power”
HC held:
The HC after evaluating various cases and submissions made by both the parties held that “the afore-noted provisions of Order XLVII Rule 1 CPC make it manifestly clear that while considering a review application, this Court is only required to correct a mistake and not to substitute a view. In the considered opinion of this Court, the order dated 24.05.2021 does not call for any review.”
The HC dismissed the petition.
Bench: Hon'ble Mr. Justice Suresh Kumar Kait
Case Title: Transasia Private Capital Limited v. Gaurav Dhawan
Case Details: Review Petition No. 102/2021 in EX.P. 37/2021
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