M/S. M.M. Knitwears Pvt. Ltd. vs Sarl Texeurop
2014 Latest Caselaw 4342 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Order delivered on: 10th September, 2014

+                  Ex.P.68/2011 & E.A.No. 483/2011

M/S M.M.KNITWEARS PVT LTD               ..... Decree Holder
                 Through Mr. Ashutosh Dubey, Adv. with
                          Mr.Abhishek Chauhan, Adv.

                        versus

SARL TEXEUROP                                   .....Judgment Debtor
                        Through    None.
       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The decree holder has filed an execution petition for execution of the decree dated 17th November, 2005 passed in CS (OS) No. 974/2002 seeking a decree for a sum of Rs. 91,21,289.83/- against judgment debtor.

2. The decree holder in the execution petition has stated that the suit/claim of the plaintiff/decree holder against defendant No.1 i.e. Iran Air was rejected as time barred vide order dated 1st February, 2005 and the suit was decreed against defendant No.2/judgement debtor herein vide order dated 17th November, 2005 and a decree was accordingly drawn in favour of the decree holder. The judgement debtor has not paid the decreetal amount. Hence the present execution petition has been filed by the decree holder with the prayer for attachment and sale of immoveable asset owned and in physical

possession of the judgment debtor. The detail of the property is given as under :-

128 C Rue Pasteur BP-56 59370 Mons en Barouel France It is alleged that the sale proceeds be adjusted towards the satisfaction of the decreetal amount.

3. On 28th February, 2011 when the execution petition for the first time was listed before Court, notice was issued to the judgment debtor. Till date service could not be effected upon the judgment debtor. In the meanwhile decree holder has filed the above mentioned application being Ex.Appl (OS) No. 483/2011 under Section 39 read with Order XXI Rule 5 of the CPC seeking transfer of the execution petition to France in terms of Section 44A CPC on the ground that the judgment debtor as well as the immoveable assets sought to be attached towards the satisfaction of the decreetal amount are outside the local limits of the jurisdiction of this Court. In support of his submissions the learned counsel for the decree holder has placed on record relevant documents and notification to show that France is a reciprocating State. The said documents read as under:-

     (i)      Text of Hague Service Convention
     (ii)     Signatories 14: Convention of 15 November 1965 on the

Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

4. Section 44A CPC provides for execution of decrees passed by Courts in reciprocating territory. A reciprocating country has been

defined to mean a country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of the section. Similarly, Superior Courts with reference to any such territory has been defined to mean such Courts as may be specified in the said notification. The referred provision of the Code, therefore, exclusively deals with the execution of the decrees passed by a foreign Court in a reciprocating territory within the meaning thereof.

5. Section 45 CPC relates to execution of decrees outside India. It mandates that a Court in any State is empowered to send a decree for execution to any Court established by the authority of the Central Government outside India to which the State has by notification in the Official Gazette declared the said section to apply.

6. A reading of the above provision of the Code yields the following features:

(1) The decree to be executed should be of an Indian Court for execution in a foreign territory.

(2) The transferee Court should be one established by Central Government in such foreign territory.

(3) The State Government, by notification, has declared this section to apply to the said foreign Court.

7. In the present case, France is a reciprocating country. The transferee court is established by Central Government. The decree to be executed is of Indian Court and the notification proved that this Court is empowered to send the decree for execution.

8. Thus, the prayer made in the application is allowed. The Registry of this Court accordingly issue the requisite certificate with regard to transfer of decree dated 17th November, 2005 passed in CS(OS) No. 974/2002 to the court of competent jurisdiction of France for execution of the decree.

9. The decree holder shall take all necessary steps within four weeks and approach the Registry in order to provide assistance if necessary.

10. The present execution is disposed of accordingly.

(MANMOHAN SINGH) JUDGE SEPTEMBER 10, 2014