High Courts with Original Civil Jurisdiction Can Also Execute Foreign Decrees Under Section 44A of CPC: Supreme Court
Courts having original civil jurisdiction, can entertain a petition for executing a money decree (in excess of Rs.20 lakhs) of a foreign Court which is notified as a superior Court of reciprocating territory under Section 44A of the Code of Civil Procedure, held by the Supreme Court of India. A Bench comprising Justices Ajay Rastogi and Abhay S. Oka allowed an appeal assailing the order of the Division Bench of the Delhi High Court, in the case of M/s. Griesheim GmbH (Now Called Air Liquide Deutschland GmbH v. Goyal MG Gases Pvt. Ltd. [Civil Appeal No. 521 of 2022], which held that High Courts have no jurisdiction to execute foreign decrees under Section 44A even when it falls within the pecuniary jurisdiction of the High Court, as Section 44A is an independent provision distinct from execution of domestic decrees. The facts of the case are that appellant initiated the proceedings before the High Court of Justice, Queen’s Bench Division, Commercial Court, United Kingdom, which is notified as a superior Court of a reciprocating territory by the Central Government under Section 44A of the Code of Civil Procedure, 1908 (“CPC”). Eventually a money decree amounting to US $ 5,824,567.74 was passed in favour of the appellant. Once the decree attained finality, execution petition was filed before the Delhi High Court in 2006 as the decretal amount exceeded Rs. 20 lakhs, which was then the pecuniary limits of the original civil jurisdiction of the Delhi High Court. The jurisdiction of the High Court was objected to in terms of Section 44A. Considering the pecuniary limit, the Single Judge decided that High Court had jurisdiction, but on appeal it was reversed by the Division bench. The judgment authored by Justice Rastogi, while setting aside the judgment of the Division Bench of the High Court, held: “The expression ‘District” is defined under Section 2(4) of the Code and the term “District Court” referred under Section 44A of the   Code   although   not   defined,   but   on   conjoint   reading   of   the provision makes it clear that it refers to the local limits of the jurisdiction   of   a   principal   civil   Court   of   original   jurisdiction and it includes the local limits of the ordinary original civil jurisdiction of a High Court and   it   is   not   disputed   that   principal   civil   Court   of   original jurisdiction is normally a District Court and High Courts in India exercising ordinary original civil jurisdiction are not too many, but where there is a split jurisdiction based on its pecuniary value, notified from time to time, the District Court or the High Court in its ordinary original civil jurisdiction is competent to exercise power for execution of decree, including   money   decree   of   the   foreign   Court   of   reciprocating jurisdiction,   provided   other   conditions   are   complied   with   as contemplated under Section 44A of the Code.” The Supreme Court referred to the definition of ‘district’ provided in Section 2(4) of the CPC, which reads as under “district” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of a High Court. Conjointly reading Sections 2(4) and 44A, the Court noted that it includes local limits of the ordinary original civil jurisdiction of a High Court. Though all High Courts do not have ordinary original civil jurisdiction, the Court opined, those that do are competent to exercise power for execution of decrees including foreign decrees under Section 44A. The Court emphasised that the execution which would otherwise fall within the jurisdiction of the High Court based on the pecuniary limit notified under section 5(2) cannot be executed by a Civil Court just because Section 44A mentions “District Court”. Click here to read the judgment
The appellant decree holder has challenged the judgment of February 2006(in excess of Rs. 20 lakhs) of a foreign Court the earliest possible without fail keeping in view the reasonable restrictions rights which are available to the judgment debtor 1 General Manager of the Raj Durbhunga v. Coomar Ramaput Sing 14 MIA 605 : 20 ER 912 7th February 2006 and after 16 years have been rolled by still the The brief facts culled out from the record are that the appellant initiated proceedings before the High Court of Justice Queen’s Bench Division Court Kingdom(“English Court”) which is a superior Court of a Northern Island) notified under Section 44A of the Code vide Notification No. SRO 399 dated 1st March 1953 issued by the the respondent judgment debtor in UK Court on 6th February who objected the same as the judgment dated 6th February 2003 was a default decree. To meet the objection raised by the respondent the appellant approached the English Court and decree on merits of the case. At this juncture the respondent entered appearance and the English Court by a judgment and decree dated 7th February 2006 granted a money decree for a principal sum of US $ 5 824 564.74 It is pertinent to note that the respondent did not file any the execution petition before the Delhi High Court on 27th April the Delhi High Court in terms of Section 5(2) of the Delhi High if it is taken at the face value as on 20 th January 2022 may come 10. The appellant filed a petition for execution of money decree in the High Court of Delhi on 27th April 2006. A reply to the execution petition was filed by the respondent on 17th January as envisaged under Section 13 of the Code. Later a further objection was raised that the High Court of Delhi has no jurisdiction to entertain the execution petition in view of Section 11. Learned Single Judge of the High Court overruled the exceeding Rs. 20 lakhs at given point of time i.e. 27th April of Delhi holds the exclusive jurisdiction of ordinary original civil jurisdiction and after meeting out other objections on merits For the reasons stated therein the application is allowed and the property land measuring 18774 sq. yds. At 8 7 Site­IV Sahibabad Industrial Area Sahibabad District Ghaziabad in the Court within two weeks and when so deposited it shall be kept in deeds the JD will deliver to the learned counsel for the DH a 71. By this application the DH seeks a clarification that the conditional upon the Managing Director or any other way back on 20th November 2009 no reply has been filed to this 73. Consequently the application is allowed and a direction is on the date of the order dated 3rd November 2009 that no 27th April 2006 andthat as on date there is no lien charge 12. The judgment of the learned Single Judge of the High Court of Delhi dated 29th November 2013 was assailed by the respondent­ 13. The Division Bench of the High Court in the facts and circumstances considered it appropriate to examine the singular of the Code and after the parties being heard arrived at the fresh cause of action and has no co­relation with jurisdictional issues. The scheme of Section 44A of the Code is alien to the scheme of domestic execution as provided under Section 39(3) of District Court in terms of Section 44A of the Code is not vested be transferred to the Court of District Judge within whose dealt with in accordance with law which is a subject matter of 14. Dr. Abhishek Manu Singhvi learned senior counsel appearing for the appellant submits that the jurisdiction for execution of a foreign Court’s decree of a reciprocating territory vests with the by a notified superior Court of the reciprocating territory namely 1st March 1953 issued by the Ministry of Law. The High Court of the pecuniary jurisdiction) is restricted only for the purpose of Delhi Kolkata Chennai and Mumbai the High Court would have to jurisdiction” where it exceeds its pecuniary jurisdiction as being 16. Learned counsel further submits that there can be two or more Courts which are concurrently a principal civil Court of original jurisdiction subject to their pecuniary limits as being envisaged under Section 5(2) of the Act 1966. If that being so if pecuniary jurisdiction exceeds what is prescribed notified under the principal Court of original civil jurisdiction as defined under Section 5(2) of the Act 1966 and the execution petition being a Court has committed a manifest error in holding that the High Court of Delhi is not vested with the jurisdiction to entertain an execution petition as being a District Court defined in terms of 17. Per Contra Mr. Rakesh Dwivedi learned senior counsel for the respondent while supporting the finding recorded in the right conferred on a foreign decree holder for enforcement of its to the scheme of domestic execution as provided under Section the Court which passed the decree or Court of competent jurisdiction to which it is transferred for execution. So far as unequivocally confers exclusive jurisdiction in this regard on a “District Court” and the words mandating the competence of the executing Court to try the original cause in which the decree was passed are conspicuous by their absence in this provision 18. To be more specific learned counsel submits that Section 44A which gives the decree holder a fresh and new cause of action irrespective of the original character of the cause in which the understood in its ordinary limited sense of a ‘Civil Suit’ and will not include execution proceedings. Section 4 of the Delhi High error has been committed by the High Court in the impugned High Court of Delhi in exercise of its original jurisdiction is a competent Court to entertain a petition for executing a money Code is concerned the judgment and decree dated 7 th February 2006 has been passed by the notified superior Court of the reciprocating territory namely United Kingdom of Great Britain vide notification dated 1st March 1953 issued by the Ministry of In order to appreciate the submissions made it may be relevant to first take a look at the scheme of the Code and also relevant provisions of the Act 1966 which are reproduced Civil Court of original jurisdiction The provisions of Section 47 shall as from the filing of the shall refuse execution of any such decree if it is shown to the satisfaction of the court that the decree falls within any of the Explanation 1.—“Reciprocating territory” means any country or territory outside India which the Central Government may by notification in the Official Gazette declare to be a reciprocating territory for the purposes of this section and “superior courts” any decree or Judgment of such Court under which a sum of other charges of a like nature or in respect of a fine or other penalty but shall in no case include an arbitration award even if original appellate and other jurisdiction as under the law in force 2) Notwithstanding anything contained in any law for the time the Code although not defined but on conjoint reading of the provision makes it clear that it refers to the local limits of the jurisdiction of a principal civil Court of original jurisdiction and it is not disputed that principal civil Court of original jurisdiction based on its pecuniary value notified from time to time the District Court or the High Court in its ordinary original civil including money decree of the foreign Court of reciprocating jurisdiction provided other conditions are complied with as 26. Section 44A of the Code provides for execution of decrees passed by the foreign Courts in reciprocating territories. It inter superior Court of any reciprocating territory has been filed in a the extent if any to which the decree has been satisfied or the Code further lays down that provisions of Section 47 of the refuse execution of any such decree if it is shown to the satisfaction of the Court that the decree falls within any of the 27. The ordinary original civil jurisdiction of the High Court is jurisdiction of Civil Court is restricted still for the purpose of execution of a foreign decree it becomes the District Court in It leaves no manner of doubt that once the pecuniary jurisdiction at the given point of time exceeded Rs. 20 lakhs as vide notification dated 10th August 2015it is the High Court of Delhi which holds its exclusive jurisdiction as ordinary 29. Section 24 of the Punjab Courts Act 1918 of which the Division Bench has put its emphasis which is applicable to Delhi the Court of District Judge would be the principal civil Court of original jurisdiction. Under Section 5(1) of the Act 1966 the High Court of Delhi exercises all such original appellate and other jurisdiction has been taken away from the District Court and conferred with the High Court of Delhi and this original civil 30. The Division Bench has proceeded on the basis of the to the conclusion that the expression “District” as defined under the pecuniary jurisdiction exceeds as being notified under the relevant statute the jurisdiction vests exclusively with the High Court as an ordinary original civil jurisdiction for execution of a foreign decree under Section 44A subject to the just objections which are available to the parties judgment debtor as envisaged Consequently the appeal succeeds and accordingly allowed not have been executed for almost 16 years by this time we take up the matter on priority and decide the same on its own execution in accordance with law but in no case later than four 32. Pending application(s) if any stand disposed of