RADHAMANI INDIA LTD Vs. IMPERIAL GARMENTS LTD

JUDGEMENT

(1.) 1. By this application the decree-holder seeks execution of a decree that has been filed in this Court under Section 44-A of the Code of Civil Procedure," 1908 (in short "the CPC"),

(2.) The decree was passed on April 10th, 2001 by the learned Subordinate, Judge, 1st Court at Dhaka in Money Suit No. 30 of 1994. The suit was filed by the decree-holder against the judgment-debtors. The decree was for USS 55,669.20 with interest at the rate of 18% per annum till realization. Judgment-debtor 1, preferred an appeal against the decree. Judgment-debtor 2, however, did not prefer any appeal. In the appeal (F.A. No. 365 of 2001) order was passed to stay the operation of the decree. For execution of the decree the decree-holder did not apply to the Court which passed the decree. On the contrary, it filed the certified copy of the decree under Section 44-A of the CPC in this Court and applied for its execution under Order 21, Rule 11 (2) of the CPC on April 24th, 2002. By an order dated August 11th, 2003 the High Court Division at Dhaka of the Supreme Court of Bangladesh modified the stay order passed in the appeal preferred by judgment-debtor 1; the stay was vacated as against judgment-debtor 2. So now the decree-holder wants to execute the decree as against judgment-debtor 2.

(3.) Learned counsel for judgment-debtor 2 raises three preliminary objections. He submits that the execution proceeding is not maintainable, because :- (1) the certificate required under Section 44-A (2) of the CPC has not been filed with the certified copy of the decree; (2) in terms of the notifications regarding superior Courts of reciprocating territory, the decree passed by the Court of the Subordinate Judge at Dhaka cannot be executed through this Court; (3) without obtaining prior leave under Order 21, Rule 22 (1) of the CPC a decree cannot be filed under Section 44-A of the CPC.