CHANCETEAM INVESTMENTS LTD Vs. R D RAMANATH COMPANY

JUDGEMENT

(1.) The decree-holder herein obtained a foreign judgment from the Supreme Court of Hong Kong on September 8, 1994. Pursuant thereto the decree-holder filed an execution petition in this Court for execution of the aforesaid foreign judgment as provided for under section 44-A and Order XXI 11 of the Code of Civil Procedure. Along with the said execution petition a certified copy of the judgment dated August 12, 1994 was annexed as Annexure `A' wherein it was recorded as follows:-

(2.) The said petition was filed in this Court on May 28, 1997. On filing of the said application, this court by order dated July 7, 1997 directed for issuance of notice to the judgment debtors. The said notice was served on the judgment debtors and accordingly counsel for the judgment debtors entered appearance on the subsequent date, i.e., on October 20, 1997, and prayed for time. On August 28, 1998 it was recorded by this Court that reply was still not filed. The judgment debtors again sought time to file reply and the court allowed the prayer and ordered that the reply be filed within two weeks subject to payment of costs of Rs.2,000/-. Even in spite of the said order, neither the cost was paid nor the reply was filed. Even on the subsequent date and finally on January 11, 1999 last opportunity was granted to the judgment debtors to file reply. Still no reply was filed by the judgment debtors. This court passed an order on December 2, 1999 directing for issuance of warrant of attachment against the properties shown in the list annexed with the petition which was made returnable by February 18, 2000. On February 18, 2000, it was, however, recorded by this Court that despite repeated opportunities neither the reply was filed nor the cost imposed on May 22, 1998 was paid but even in spite of the said position, at request a last opportunity was given to file reply and pay costs making it clear that no further time would be granted. It was also observed that in case either the cost was not paid or reply was not filed within the time granted by the court, the matter would be proceeded with in the absence of reply. It was recorded that though the warrant of attachment which was issued was executed, but a report was received that the fixed deposit receipt numbers did not appear to be correct. Again a fresh warrant of attachment was issued attaching the properties of the fixed deposit receipts in terms of the said order. It was also recorded that under section 44-A of the Code of Civil Procedure, a decree passed by the superior courts of any reciprocating territory could be executed in India as if it had been passed by the District Court and that the `reciprocating territory' had been defined to mean any country or territory outside India which the Central Government might, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of that section. It was further observed that no such notification had been placed on record. Time was granted to place the same on record. Thereafter the warrants of attachment issued by this Court were also executed. The judgment debtors filed a reply/objection on September 20, 2000 taking up various pleas in the said objection contending inter alia that the foreign judgment is not conclusive and the same was passed ex parte and is a non-speaking ex parte judgment and is also not pronounced by a court of competent jurisdiction. Thereafter, another application registered as E.A. No. 233/2002 was filed by the judgment debtors on May 13, 2002 seeking for amendment of the reply which was filed by the judgment debtors on September 20, 2000. Some time around September 2002, the judgment debtors sent a cheque covering the amount of cost of Rs.2,000/- to the counsel for the decree-holder which was got encashed. The said application seeking for amendment was placed before this Court on September 19, 2002. The said application was considered by this Court and the same was dismissed on the grounds as recorded in the order dated September 19, 2002. As against the said order, the judgment debtors preferred an appeal before the Division Bench which was registered as EFA (OS) No. 12/2002. Subsequent to the filing of the appeal, an application was filed by the judgment debtors in the execution proceedings which is shown to have been filed under section 151 C.P.C. praying for condonation of delay in filing the original petition. The said application was placed on record on November 26, 2002. The aforesaid appeal which was filed before the Division Bench by the judgment debtors was disposed of by the Division Bench with the following observations:-

(3.) In terms of the aforesaid order passed by the Division Bench, the matter was again listed before this Court in terms of which I heard the learned counsel appearing for the parties and perused the relevant documents to which my specific attention was drawn by the counsel appearing for the parties. The facts leading to the filing of the aforesaid execution petition in this Court and the orders passed by this Court in the execution petition have been referred to in the foregoing paragraphs. The order sheets of the court clearly depict that repeated opportunities were given to the judgment debtors by the court to enable the judgment debtors to file objection/reply. However, in spite of such accommodation, no reply was filed and, therefore, an order of attachment came to be issued by this Court by order dated December 2, 1999 followed by orders dated February 18, 2000. The reply/objection was filed thereafter on September 20, 2000 which was followed by an application seeking for amendment of the said reply/objection which was filed on September 13, 2002, and an application for condonation of delay in filing the original application came to be filed only on November 26, 2002. In the said application a prayer for condonation of delay is made on the ground that the delay in filing the said objection was caused on account of the callousness of the advocate who had been representing the judgment debtors. It was also stated in paragraph 7 of the said application that the delay had been caused on account of advocate and that it was well settled that the parties should not suffer on account of the lapse/fault of the advocate.