BANK OF BARODA Vs. MANUBHAI JETHABHAI PATEL

JUDGEMENT

(1.) THE plaintiffs-decree holders have moved this Court by way of Judges Order. On 19th March 1999 it was agreed between the parties that this should be treated as Notice of Motion under Order XXI, Rule 22 of the Code of Civil Procedure and order was passed accordingly.

(2.) THE plaintiffs had filed a suit in the High Court of Justice, Queens Bench Division bearing No. 1995-B. No. 2588. In the said suit judgment came to be pronounced on 3rd July 1996, against defendant No. 1. The plaintiffs, being unable to get the decree satisfied by execution in U. K. , have applied for execution of the said decree before this Court. The plaintiffs have annexed a certified copy of the judgment along with a certificate issued by the High Court of Justice Queens Bench Division dated 16th June 19997 that the decree remains wholly unsatisfied. It is contended that the judgment/decree is of a reciprocating country and consequently can be executed in this Court. Reliance for that purpose is placed on sections 13 and 44-A of the Code of Civil Procedure 1908. To execute a foreign decree a decree holder must move this Court in Court in terms of Order XXI, Rule 10. Section 44-A of C. P. C. , requires that the Court executing the decree must issue notice to the judgment debtor in terms of Order XXI, Rule 22 of the Code of Civil Procedure. In terms of Order XXI, Rule 2 (2) the judgment debtor can also inform the Court if any payment or adjustment has been made and apply to the Court to issue notice to the decree holder to show cause why such payment or adjustment should not be recorded as certified. Order XXI, Rule 2 also provides that no payment or adjustment shall be recorded at the instance of the judgment debtor unless the payment is made in terms of Order XXI, Rule 1 or the payment or adjustment is proved by documentary evidence or the payment or adjustment is admitted by or on behalf of the decree holder. Payment or adjustment which has not been certified or recorded as aforesaid cannot be recognized by any Court executing the decree. In the back ground of the aforesaid provisions the present notice can be considered.

(3.) IN the application for execution, the decree holder has set out that a writ of summons dated 1st December 1995 was duly served by personal service on the defendant (judgment debtor) on 4th January 1996. The first defendant acknowledged service on 24th January 1996. The 1st defendant who is the judgment debtor herein gave notice of his intention to defend the suit. The High Court of Justice, Queens Bench Division thereafter under Order 14, Rule 3 ordered that judgment as provided be entered against judgment debtor (defendant No. 1) in a sum of Pounds 1, 278,153. 91 plus costs to be taxed if not agreed. On 16th June 1997 certificate was issued by the Master of the Queens Bench Division inter alia certifying that a writ of summons was duly served upon the defendant and that no objection was raised to the jurisdiction of the Court and the judgment was obtained for the amount as set out above plus costs. It is then averred that the Master of the Queens Bench Division of the Supreme Court of England and Wales has issued certificate on 16th June 1997 certifying that the judgment dated 3rd July 1996 for the amount set out hereinabove remained wholly unsatisfied. It is pointed out in para 10 that the said judgment has remained wholly unsatisfied till date. It is then explained that a fresh certificate confirming that the judgment is wholly unsatisfied till date has not been applied for as the costs for the same would have to be borne again in precious foreign exchange. It is then pointed out that in the event this Court so directs, the plaintiff will request their solicitors in England to obtain the same. In these circumstances it is pointed out that this Court be pleased to take on file the certified copy of the judgment dated 3rd July 1996 along with copies of the certificates and other papers annexed thereto and issue the execution processes as prayed for in the execution application under Order XXI, Rule 11 (2) of the Code of Civil Procedure.