HANIFA KALANGATTU Vs. SHAISTA KHAN

JUDGEMENT

(1.) This original petition has been filed challenging the order dated 7.4.2015 in EP.No.57/2011. The execution petition was filed by the respondent herein for executing a foreign judgment. Exts.P4 to P7 are the orders passed by the Superior Court of Justice at Ontario, Canada. When the execution petition was filed, the petitioner had raised certain objections including the maintainability of execution petition. However without considering the same, the Family Court, Thrissur proceeded to consider whether the foreign judgment is executable and formed an opinion that the judgment debtor had transferred certain funds while the decree was in force with an intention to defeat the payment of the amount due to the decree holder and accordingly directed arrest warrant to be issued against the judgment debtor.

(2.) The main contention urged by the petitioner is that the documents produced by the respondent herein does not amount to a foreign judgment which can be executed before a Court in India. The primary contention raised is that the parties are foreign nationals and the direction by the Canada Court can only be executed at Canada and not in India. Secondly it is contended that it is an ex parte order which is not decided on merits and cannot be executed before this Court in terms of Sec. 13(b) of the Code of Civil Procedure. It is also contended that the Family Courts have no jurisdiction to execute such an order, only a District Court having civil jurisdiction can execute, if at all it is executable. The Family Courts are formed under the Family Courts Act and its jurisdiction is confined under Sec. 18 of the Act which did not include execution of foreign judgments. Further it is contended that, as per Sec. 44 A of the Code of Civil Procedure a decree of foreign court can be executed only if certified copy of decree of any of the Superior Court of any reciprocating territory has been filed before the District Court. There is no material to indicate that Canada is a reciprocating territory which would enable the said foreign judgment to be enforced and executed by this Court.

(3.) The learned counsel appearing for the petitioner also placed reliance on the judgment of this Court in Lakshmi Priya Seshan Vs. Shankar Guhadas (2013 (4) KLT 362) and the Apex Court judgment in International Woollen Mills Vs. Standard Wool (U.K.) Ltd. (2001 (5) SCC 265) to contend for the position that an ex parte foreign judgment passed without discussion of any oral or documentary evidence, is not the judgment as provided under Sec. 13(b) of the Code of Civil Procedure, therefore cannot be executed by the District Court.