Messrs GROSEVENOR CASINO LTD. vs ABDUL MALIK BADRUDDIN
This matter concerns a petition for leave to appeal against a High Court judgment regarding the execution of a foreign money decree. The petitioner, having obtained a money decree from the High Court of Justice, Queens Bench Division, England, sought execution in Pakistan under Section 44-A of the Code of Civil Procedure 1908. The core legal question is whether the requirement under Order XXI, Rule 23-A of the Code of Civil Procedure 1908—which mandates the deposit of the decretal amount or the furnishing of security—applies to the execution of foreign decrees under Section 44-A. The High Court had held that Section 44-A operates independently, that Order XXI, Rule 23-A is inapplicable to foreign decrees, and that the executing court must inquire whether the decree falls under the exceptions in Section 13 of the Code of Civil Procedure 1908 before proceeding. The Supreme Court granted leave to appeal to definitively determine the applicability of Order XXI, Rule 23-A to foreign decree executions, specifically examining whether the phrase 'as if' in Section 44-A incorporates the entire procedural scheme of Order XXI.
- Is Order XXI, Rule 23-A of the Code of Civil Procedure 1908 applicable to the execution of a decree passed by a foreign court under Section 44-A of the Code of Civil Procedure 1908?
- Does the phrase 'as if' in Section 44-A of the Code of Civil Procedure 1908 make the entire scheme of Order XXI of the Code of Civil Procedure 1908 applicable to foreign decrees?
- Is an appeal maintainable under Section 104 of the Code of Civil Procedure 1908 against an order dismissing objections to the execution of a foreign decree?
- Section 44-A, Code of Civil Procedure 1908
- Order XXI Rule 23-A, Code of Civil Procedure 1908
- Section 104, Code of Civil Procedure 1908
- Order XXI Rule 22(1)(b), Code of Civil Procedure 1908
- Section 13, Code of Civil Procedure 1908
ORDER
' SALEEM AKHTAR, J--The petitioner seeks leave to appeal against the judgment of the learned Judges of the Division Bench of the High Court whereby the order of the learned Single Judge ruling that objection to the execution of a decree passed by a Superior Court of United Kingdom cannot be heard without complying with the provisions of Order XXI, rule 23-A, C.P.C. Was set aside.
2. The petitioner had filed a suit against the respondents in the High Court of Justice Queens Bench Division, England and obtained a money decree against the respondents. The petitioner filed execution application No,77/1991 before the learned Single Judge as provided by section 44-A, C.P.C. The respondents appeared and filed objections. However, the learned Single Judge held that in terms of Order XXI, rule 23-A, C.P.C. The objection can be heard on furnishing security by the respondents. Time was given to the respondents, but as they failed to furnish security, by order dated 31-5-1992 the objections were dismissed. The respondents challenged this order in High Court Appeal before the Division Bench of the High Court. The petitioner raised preliminary objection that appeal was not maintainable under section 104, C.P.C. By the impugned judgment the appeal was held to be maintainable and it was observed that section 44-A(1), C.P.C. Is an independent section and is not controlled by the provisions of any other section. It was further held that after application for execution of a foreign decree as provided by section 44-A, C.P.C. Is filed, the executing Court must issue a notice as provided by Order XXI, rule 22 (1) (b), C.P.C. And hear objections filed by the judgment-debtor. Finally it was observed that "rule 23-A C.P.C. Which requires deposit of decretal amount in Court or furnishing the security for its demand is not applicable to a foreign decree or judgment" and that without holding any inquiry that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13, C.P.C. The learned Single Judge ought not to have applied provisions of rule 23-A, C.P.C.
3. Mr. Abbas, learned counsel for the petitioner contended that under section 44-A, C.P.C. a money decree passed by a Superior Court of United Kingdom filed in a District Court has to be executed in Pakistan as if it had been passed by the District Court. Relying on Morlays (B'Ham) Ltd. v. Roshanlal Ramsahai and another (AIR 1991 Bombay 156) it was contended that the words "as if' used in subsection (1) of section 44-A make the whole scheme of Order XXI, C.P.C. Applicable in respect of execution of decrees of foreign Court mentioned in subsection (1). The question for consideration would be:- ' Whether Order XXI, rule 23-A, C.P.C. Is applicable to the execution of a decree passed by a foreign Court in terms of section 44-A, C.P.C..
' We grant leave to consider this question.