Delhi High Court
Goyal Mg Gases Private Ltd. vs Messer Griesheim Gmbh on 1 July, 2014
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : May 05, 2014
Judgment Pronounced on : July 01, 2014
+ EFA (OS) 3/2014
GOYAL MG GASES PRIVATE LTD. .....Appellant
Represented by: Mr.Harish Malhotra, Sr.Advocate
instructed by Mr.Tarun and
Mr.Siran Mehta, Advocates
versus
MESSER GRIESHEIM GMBH .....Respondent
Represented by: Mr.Amit Sibal, Sr.Advocate
instructed by Ms.Mohna M.Lal,
Ms.Geetali Talukdar and Mr.Tahir
Ashraf Siddiqui, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE JAYANT NATH
PRADEEP NANDRAJOG, J.
1. Vide impugned order dated November 29, 2013 the learned
Single Judge has dismissed EA No.32/2007, EA No.152/2008 and EA
No.470/2009 filed by the appellant. The learned Single Judge has held :
(a) That since the decree sought to be executed is in sum of more
than `20,00,000/- (Rupees Twenty Lacs only) the High Court of Delhi
has jurisdiction to execute the decree.
(b) On merits challenge to the foreign decree on the plea that it
violates the law in India was not sustainable i.e. that the decree was not in
breach of Indian laws.
(c) That the objection of the foreign decree being obtained by fraud
was not sustainable.
(d) That the objection that 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
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."
(Emphasis Supplied)
5. A bare perusal of the above highlighted provision evinces that
Section 44A envisages presentation of a petition seeking execution of a
decree of a superior Court of any reciprocating territory before a 'District
Court'.
6. The vexing question which therefore begs an answer is -
'Whether the High Court of Delhi can be treated as a „District Court‟ for
the purpose of Section 44A of the Code of Civil Procedure, 1908.'
7. Before venturing to answer the said question, which goes to the
root of the matter, it would be incumbent to notice the antecedent history
and attending circumstances leading to the insertion of the said provision
in the Code of Civil Procedure, 1908.
8. The judgment of a foreign Court, being the command of a
judicial agency of a foreign sovereign, cannot be enforced beyond the
limits of its own territory. A sovereign cannot command obedience
outside his own realm. Under the common law, a foreign judgment or a
decree does not operate proprio vigore and is therefore not capable of
automatic execution. Ordinarily, therefore, there can be no direct
execution of a foreign judgment or decree.
9. It is for this reason that a party is entitled either to sue upon the
foreign judgment/ decree or to bring a suit upon the original cause of
action as held in the decisions reported as 1809-11 East 118 Hali v.
Odber, and 1887-37 OD 244 In Re, Henderson; Nouvion v. Freeman.
10. But over the years legal luminaries and Courts have attempted
to provide a juristic basis for the recognition of foreign judgments.
Attempts have been made to reconcile the two seemingly rival
considerations, namely, the necessity of giving effect to foreign
adjudications and the assertion of the uncompromised sovereignty of
national Courts. Several doctrines 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 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 prominent doctrines upon which the
recognition and enforcement of foreign judgments has been sought to be
justified.
16. Although legal jurisprudence appears to have abandoned the
'doctrine of comity' based upon the rule of reciprocity, the requirement of
reciprocal treatment has been made by statute in several countries, a
practical pre-requisite to the enforcement of foreign judgments. From the
Judgments Extension Act, 1868 in England to the Administration of
Justice Act, 1920 the principle of reciprocal treatment was consistently
followed and later on attained full expression in the Foreign Judgments
(Reciprocal Enforcement) Act, 1933 when the scheme was extended to
the countries completely foreign in the political sense to the United
Kingdom.
17. The Judgments Extension Act, 1868 was the first in point of
time to be enacted by the British Parliament, which made certain
judgments of the Superior Courts of Scotland and Ireland effective in the
United Kingdom. Before that Act, the only way to enforce such
judgments in the United Kingdom was by institution of a suit on them.
After the Act, the executability of such judgments in the United Kingdom
was permitted, on a system of registration with the British Courts by
means of a certificate that the particular judgment had been obtained in a
Superior Court in Scotland or Ireland. The foreign judgment, when so
registered, was regarded as extended judgment for purposes of execution
but was made subject to certain restrictions.
18. Next came the Administration of Justice Act, 1920 which
extended the facility of execution in the United Kingdom of foreign
judgments obtained in a Superior Court in any of the British dominions.
The judgment-creditor within twelve years of the judgment could apply to
the High Court in England or Ireland for registration and the 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-in-
Council 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 execution, be of the same force and be subject
to the same control as if it had been originally given in the registering
Court and that no further substantive action in England would be
necessary on a foreign judgment, which was entitled to registration;
meaning thereby there was no need to file a fresh suit.
20. In British India there was originally no statutory or other
provision, conferring jurisdiction on Indian Courts, to enforce foreign
judgments in execution. On February 27, 1924, a Bill was introduced in
the Central Legislature to provide for enforcement, in British India, of
judgments obtained in the United Kingdom or other notified parts of His
Majesty's Dominions, as part of a reciprocal arrangement by which the
provisions of Part II of the Administration of Justice Act, 1920 were to be
extended to the British India. But the Bill was dropped in 1925 on the
ground that full reciprocity could not be ensured since most of the British
Indian Courts of unlimited civil jurisdiction would not possibly be viewed
as Superior Courts as contemplated by the Administration of Justice Act,
1920. But the position became different with the passing of the Foreign
Judgments (Reciprocal Enforcement) Act, 1933 which provided for the
extension of Part I of the Act to His Majesty's Dominions outside the
United Kingdom by the Order-in-Council and also left it to the Order-in-
Council to specify the Courts which should be deemed as 'superior'
within the meaning of the Act. The Lord Chancellor, having expressed
his no objection to the British Act being applied to all Indian Courts
possessing unlimited original civil jurisdiction, Section 44A was inserted
in the Code of Civil Procedure, 1908 by Section 2 of the Code of the
Civil Procedure (Amendment) Act, 1937.
21. The section as it stood then, read as under:-
"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-in-
Council 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 in the official gazette,
declare to be a reciprocating country, so that now the Code puts all
countries or territories outside India on an equal footing.
25. In light of this legislative backdrop, we now proceed to answer
the issue of maintainability of the present lis before the High Court of
Delhi.
26. It would be relevant to note that the term 'District Court'
employed in Section 44A of the Code of Civil Procedure, 1908 is not
distinctively defined under the definition clause viz. Section 2. However,
pertinently it finds reference in definition of the term 'District' comprised
in Section 2(4) of the Code of Civil Procedure, 1908 which reads:-
"„district‟ means the local limits of the jurisdiction of a
principal Civil Court of original jurisdiction (hereinafter
called a "District Court"), and includes the local limits of
the ordinary original civil jurisdiction of a High
Court."(Emphasis Supplied)
27. Two things are discernible from a perusal of Section 2(4) of the
Code of Civil Procedure, 1908 as extracted hereinabove. Firstly, Section
2(4) defines 'District' in relation to a geographical area or territory.
Secondly, the expression 'District Court' connotes the 'principal Civil
Court of original jurisdiction'.
28. It may also be noticed that the legislature, in its wisdom, has
included the reference to the local limits of the ordinary original civil
jurisdiction of a High Court after defining the 'District Court' in Section
2(4) of the Code of Civil Procedure, 1908.
29. The significance and effect of the said manner of legislative
drafting shall be discussed a little further in our judgment, in conjunction
with other relevant circumstances.
30. Therefore, it emerges beyond pale of doubt that the Code of
Civil Procedure, 1908 prescribes 'District Court' as a connotation of a
'principal Civil Court of original jurisdiction'.
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 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 'principal Civil Court of original jurisdiction' has
been employed as an alternative expression for the term 'District Court'.
38. It therefore emerges that the expression 'principal Civil Court
of original jurisdiction‟/District Court' can be substituted by the
expression 'Court of the District Judge'.
39. We now endow our consideration upon the General Clauses
Act, 1897. Section 3(17) of the said Act reads as under:-
"'District Judge' shall mean the judge of a principal Civil
Court of original jurisdiction, but shall not include a High
Court in the exercise of its ordinary or extraordinary
original civil jurisdiction." (Emphasis Supplied)
40. In consonance with the mandate of Section 24 of the Punjab
Courts Act, 1918. Section 3(17) of the General Clauses Act, 1887 also
envisages that the expression 'principal Civil Court of original
jurisdiction' can be alternatively substituted by the expression 'Court of
the District Judge'.
41. Furthermore, significantly Section 3(17) of the General Clauses
Act, 1897 prescribes that the expression 'District Judge' shall not include
a High Court in exercise of its ordinary or extraordinary original civil
jurisdiction.
42. The cumulative effect of the conjoint reading of Section 24 of
the Punjab Courts Act, 1918 and Section 3(17) of the General Clauses
Act, 1897 is that the expression 'principal Civil Court of original
jurisdiction‟/‟District Court' can be substituted by the expression 'Court
of the District Judge'. Further, it follows that the expressions 'principal
Civil Court of original jurisdiction‟/„District Court‟/ „Court of District
Judge' shall not include a High Court in the exercise of its ordinary or
extraordinary original civil jurisdiction.
43. As noticed by us earlier, in the context of Section 2(4) of the
Code of Civil Procedure, 1908, the legislature in its wisdom has included
the 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 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 Code of Civil Procedure, 1908 since the Delhi High Court has been
conferred 'original civil jurisdiction' for suits, the value of which exceeds
rupees twenty lakhs. It was submitted that the jurisdiction vested with the
High Court in terms of this provision is to the complete exclusion (ouster)
of the jurisdiction of all other Courts established in the territory of Delhi,
and for the execution of a decree exceeding the sum of rupees twenty
lakhs, as in the present case, only the High Court of Delhi would be a
'court of competent jurisdiction' in accordance with the mandate of law.
Thus we note Section 5 of the Delhi High Court Act, 1966. It reads as
under:-
"5 Jurisdiction of High Court of Delhi-
(1) The High Court of Delhi shall have, in respect of
the territories for the time being included in the Union
territory of Delhi, all such original, appellate and other
jurisdiction as, under the law in force immediately before
the appointed day, is exercisable in respect of the
territories by the High Court of Punjab.
(2) Notwithstanding anything contained in any law
for the time being in force, the High Court of Delhi shall
also have in respect of the said territories ordinary
original civil jurisdiction in every suit the value of which
exceeds rupees twenty lakhs." (Emphasis Supplied)
47. A careful analysis of the contours and content of the preceding
provision unequivocally evinces that the non-obstante clause contained in
sub-section (2) confers 'ordinary original civil jurisdiction' upon the
High Court of Delhi, to the exclusion of all Courts constituted in the
territory of Delhi, with respect to every suit, the value of which exceeds
rupees twenty lakhs.
48. Furthermore, the legislature has employed the expression
'ordinary original civil jurisdiction' in relation to the jurisdiction vested
by it in the High Court of Delhi and has in its wisdom not termed the
High Court of Delhi as the '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 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 legal justification to telescope the requirements
contemplated under Section 39 of the Code into Section 44A thereof.
52. We have already held, for the reasons extensively discussed in
the preceding paragraphs, that under the prevailing scheme of law the
High Court of Delhi cannot be construed as the 'District Court' as
envisaged under Section 44A of the Code of Civil Procedure, 1908 and
rather the 'Court of the District Judge' would be the 'District Court' for
the said purpose.
53. It may be true that concerning suits the ordinary original civil
jurisdiction is exercised based on pecuniary limits, but based thereon it
would be impossible to read into Section 44A of the Code of Civil
Procedure, 1908, for the purpose of execution of a foreign decree, the
said concept of ordinary original civil jurisdiction based on pecuniary
limits.
54. In all fairness to the learned senior counsel appearing on behalf
of the respondent/decree holder, it would be the bounden duty of this
Court to consider the judgments cited by him in support of the
submission.
55. The first judgment relied in this regard is a decision rendered by
a Full Bench of this Court reported as ILR 1973 (2) Delhi 933 (FB) Arjan
Singh v Union of India.
56. The facts of the said case were that on April 14, 1960, the Sub-
Judge, 1st Class, Delhi passed an ex-parte decree, in favour of the
respondent and against the appellant for recovery of `47,521/-. The Delhi
High Court Act, 1966 came into effect from October 31, 1966. On April
17, 1967 the respondent moved an application in the Delhi High Court on
its Original Side to execute the decree passed by the Court of the Sub-
Judge. Following two questions were referred to the Full Bench for its
consideration:-
"(a) In which Court all future applications whether
seeking execution or any other relief should be moved
where a decree for more than rupees twenty five thousand
has been passed by a Subordinate Judge prior 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 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 High Court Act.
In the said case, the Full Bench had no occasion whatsoever to examine
the provisions of Section 44A of the Code of Civil Procedure, 1908
dealing with execution of decree passed by a foreign Court and thus the
ratio laid down in said case cannot be applied in the present case, more
particularly when 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 of valuation of more than rupees twenty five
thousand.
59. The second judgment relied upon by the respondent-decree
holder is a decision of the Division Bench of this Court reported as AIR
1971 Delhi 227 Bakshi Lochan Singh & Ors. v Jathedar Santokh Singh &
Ors.
60. The facts of the said case were that the respondent had filed a
suit under Section 92 of the Code of Civil Procedure, 1908 against the
appellants in the original side of this Court. Section 92 of the Code of
Civil Procedure, 1908 requires the suit to be filed in the 'principal Civil
Court of original jurisdiction'. The valuation of suit was fixed in the
plaint at rupees two lakh fifty thousand. One of the contentions advanced
before the Division bench was that this court had no jurisdiction to try the
said suit in view of the fact that the 'Court of District Judge' is the
'principal Civil Court of original jurisdiction' in Delhi. After noting the
provisions of Section 24 of Punjab Courts Act and Section 5(2) of Delhi
High Court Act it was held by the Division Bench that for the purposes of
Section 92 of the Code of Civil Procedure, 1908, the High Court of Delhi
shall be the 'principal Civil Court of original jurisdiction' qua suits, the
value of which exceed fifty thousand rupees (the valuation of suits
prescribed in Section 5(2) was rupees fifty thousand at the time of passing
of the said judgment) and that the 'Court of District Judge' would be the
'principal Civil Court' in the other suits.
61. With deepest respect to the views expressed by the Division-
Bench, 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 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 expression 'suit'
and the same is not subsumed therein. Reliance may be placed upon the
decision of the Division Bench of this Court reported as 2008 (105) DRJ
408 Morepen Laboratories Ltd. & Ors. v Morgan Securities and Credits
Pvt. Ltd. Therefore, the dictum of this Court in Bakshi Lochan Singh's
(supra) is of no assistance in determination of the controversy at hand.
62. Reliance was also placed upon the decision of a Single Judge of
this Court reported as (1976) ILR 1 Del 95 Mary Assumption v Vincent
Manual Trinidade & Ors.
63. In the said case, one of the questions which was considered by
this Court was whether the 'District Court' was competent to entertain the
'petition' under Section 276 of the Indian Successions Act, 1925 for grant
of Letters of Administration. After noting that Section 2(bb) of the Indian
Successions Act defines the 'District Judge' to mean Judge of a 'principal
Civil Court of original jurisdiction' and provisions of Section 5(2) of
Delhi High Court Act, 1976 it was held that the 'ordinary original civil
jurisdiction' envisaged in Section 5(2) of the Delhi High Court Act, 1966
has relation to 'every suit' and the non-obstante clause contained in sub-
section (2) of Section 5 of the Delhi High Court Act operates only in
relation to provisions contained in any law with regard to jurisdiction of
Courts vis-à-vis suits and leaves other jurisdictions including
testamentary and intestate jurisdictions untouched.
64. We may note that the said decision is in fact in consonance with
our view that the non-obstante clause comprised under Section 5(2) of the
Delhi High Court Act, 1966 applies only to suits and not any other
proceedings such as execution of foreign decrees in terms of Section 44A
of the Code of Civil Procedure, 1908.
65. Similarly reliance was also placed upon another decision of a
Single Judge of this Court reported as AIR 1986 Delhi 78 R.P.Sachdeva
v. State.
66. In the 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
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
adjudication before the learned Single Judge of this Court was whether
the High Court of Delhi is competent to execute a decree passed by a
'foreign Court' in terms of Section 44A of the Code of Civil Procedure,
1908. After noting the decisions of this Court in Bakshi Lochan Singh and
R.P.Sachdeva‟s cases (Supra), the learned Single Judge was of the view
that the High Court was competent to execute the decree passed by the
foreign Court for the reason the decree which was sought to be executed
was a money decree which can be obtained in a suit. It was held that for
the purposes of Section 44A of the Code of Civil Procedure, 1908 the
High Court of Delhi is a 'District Court' and thus competent to entertain
petition under Section 44A of the Code of Civil Procedure, 1908.
69. In our considered view, the learned Single Judge failed to
properly analyze the ratio laid down by this Court in Bakshi Lochan
Singh and R.P Sachdeva's case (supra) that the jurisdiction of the 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 a prescribed amount
and the same would not make the High Court of Delhi a 'principal Civil
Court of original jurisdiction' in Delhi. Furthermore, it would be pertinent
to notice that though the Single Judge correctly observed that Section
44A of the Code of Civil Procedure, 1908 makes no mention of
jurisdiction to try and that there is no requirement under Section 44A of
the Code that the 'District Court' in which the foreign decree is presented
for execution should be also a Court which could have entertained the
suit, yet erroneously arrived at the conclusion that High Court of Delhi is
a 'District Court' as envisaged under Section 44A of the Code of Civil
Procedure, 1908.
70. It would also be necessary for us to take note of a judgment
rendered by the Supreme Court of India in the decision reported as AIR
2000 SC 2826 M.V. Al. Quamar v. Tsavliris Salvage (International) 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-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 as
prayed for on a prima facie view of the matter that the Execution Petition
can be filed in the High Court which is otherwise having original
admiralty jurisdiction. Aggrieved thereof, the subsequent owner of the
vessel (Appellant before the Supreme Court) filed a petition before the
Andhra Pradesh High Court to vacate the interim order principally on the
ground that the ownership of the ship having been transferred bona fide
and for valuable consideration to Quamar Shipping Ltd., the ship as
attached in terms of the order of the Court cannot possibly be kept under
attachment in execution of the decree against the original owner
(Respondent No.2 before the Supreme Court).
74. The learned Single Judge of the Andhra Pradesh High Court
was pleased to record that the matter in issue involved eminently an
arguable case as regards the maintainability of the Execution Petition.
The issue of maintainability of the Execution Petition was decided by the
Bench of the Chief Justice of the Andhra Pradesh High Court against the
subsequent owner; who preferred Special Leave Petition before the
Supreme Court of India laying challenge to the maintainability of the
Execution Petition before the Andhra Pradesh High Court.
75. The judgment was pronounced by a Division Bench of the
Supreme Court of India, comprising Mr.Justice S.B.Majumdar and
Mr.Justice U.C.Banerjee. The main judgment in the matter was delivered
by Mr.Justice U.C.Banerjee, and a separate concurring opinion was
authored by Mr.Justice S.B.Majumdar, J.
76. For gaining better understanding of the context in which the
judgment was delivered, we feel apposite to concatenate the contentions
canvassed by the learned Senior Counsel appearing on behalf of the
Appellant before the Supreme Court. They were:-
(i) The invocation of Section 44A of the Code of Civil Procedure,
1908 at the instance of decree holder to execute a decree passed by
the Admiralty Court is misconceived, as the Code of Civil
Procedure, 1908 is 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 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 separate concurring
opinion also significantly observed:-
"I have gone through the erudite and exhaustive judgment
prepared by learned Brother, U.C.Banerjee, J., in these
appeals. I respectfully agree with the conclusion reached
by him. However, as the matter at issue has wide
repercussions regarding the scope and ambit or admiralty
jurisdiction vested in the Chartered High Courts or their
successor High Courts, like the High Court of Andhra
Pradesh, I deem it fit to record my reasons for concurring
with the decision arrived at by learned
brother."(Emphasis supplied)
xxx
Therefore, we find that at the heart of the controversy
before the Hon‟ble Supreme Court, lay the Admiralty
jurisdiction of the Andhra Pradesh High Court which had
been invoked by the decree holder and thus the
maintainability of the Execution Petition before the
Andhra Pradesh High Court in its Admiralty jurisdiction
fell for Lordships precise consideration which was tested
solely on the anvils of the contentions summarized by us in
paragraph _____.
80. In this regard it may be noticed that Mr.Justice U.C.Banerjee, in
paragraph 21-25 of his judgment traced the origins of the Admiralty
jurisdiction vested with the Chartered High Courts and observed that after
re-organisation of states, Andhra Pradesh High Court was conferred with
similar Admiralty jurisdiction as was previously enjoyed by the Madras
High Court for the said territory.
81. It assumes significance that no submissions were advanced at
the bar and therefore there is no finding with regard to the issue whether a
'High Court' can be construed as a 'District Court' in terms of Section
44A of the Code of Civil Procedure, 1908. Furthermore, it is palpably
evident that the Supreme Court was not seized with a case pertaining to
the jurisdiction of the High Court of Delhi, which is governed by peculiar
provisions contained in the Delhi High Court Act, 1966 and the Punjab
Courts Act, 1918. Thus, the Supreme Court had no occasion to interpret
the expression '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 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 domestic
execution as provided under Section 39 (3) of the Code wherein the
'transferee Court' must be otherwise competent to assume jurisdiction. It
was further observed that Section 44A is endowed with an in-built
scheme of execution, which is all together distinct, and not comparable
with the scheme envisaged under Section 39(3).
83. The said observations of the Supreme Court are a complete
answer to the contention urged by the respondent/decree holder. It is clear
that the legislature has consciously in its wisdom chosen not to infuse the
conception of 'competent jurisdiction' in Section 44A of the Code of
Civil Procedure, 1908 in contra-distinction to Section 39 which provides
the mechanism for execution of 'domestic decrees'. The requirements
saddled on the executing court under the scheme of Section 39 are alien
to the 'District Court‟; the jurisdiction of which may be invoked by the
holder of a foreign decree in terms of Section 44A. Rather it may be
pertinently observed that the legislature has vested such 'District Court'
the 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.
84. The authoritative observations of the Supreme Court referred
above 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'.
85. 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‟ within whose jurisdiction the property sought to be attached is
situated for being dealt with in accordance with law.
86. The appeal is allowed. The impugned order dated November
29, 2013 is set aside in so far it is held that the Delhi High Court would
be the 'District Court' to execute the foreign decree. Needless to state
decision on the objections on merits is also set aside being without
jurisdiction. The executing Court shall decide the objections
uninfluenced by any observation made by the learned Single Judge on
merits. The Execution Applications filed by the appellants are restored
save and except the application which challenged the jurisdiction of this
Court, which application is allowed.
87. The Registry shall transmit the Execution Petition and the
applications which are revived to the Court of concerned District Judge
and for which an application would be submitted in the Registry by the
decree holder intimating the Court to which the Execution Petition has to
be transmitted.
88. Parties shall bear their own costs all throughout.
(PRADEEP NANDRAJOG)
JUDGE
(JAYANT NATH)
JUDGE
JULY 01, 2014
mamta
