Section 44A of C.P.C. Execution of decrees passed by Courts in reciprocating territory.

44A. Execution of decrees passed by Courts in reciprocating territory.

1[44A. Execution of decrees passed by Courts in reciprocating territory.

(1) Where a certified copy of decree of any of the superior Courts of 2[***] any reciprocating territory has been filed in a District Court, the decree may be executed in 3[India] as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court 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 exceptions specified in clauses (a) to (f) of section 13.

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The Supreme Court of Hong Kong passed a decree in favour of the bank. It filed the decree (apparently) in the Bombay High Court under Section 44A of the CPC. Thereafter it. made an application under Order 21, Rule 22 of the CPC for leave to execute the decree; notice was issued. The judgment-debtor entered appearance and contended that leave to execute the decree should not be granted, because the decree fell within the exceptions of clauses (b), (c) and (f) of Section 13 of the CPC. In this context it was held that an application for execution of a foreign decree filed under Section 44A of the CPC could be made only after obtaining leave by filing an application under Order 21, Rule 22 of the CPC,

 

Once a decree is filed under Section 44A of the CPC, it goes without saying that the decree-holder has to apply in writing for its execution; the application in writing is to be made under Order 21, Rule 11 (2) of the CPC. The Rule 22 stage of Order 21 of the CPC would arise only when such an application is made. When the decree-holder prays for issue of process in execution of the decree, it is only then that ordinarily the Court shall not issue any process, without first issuing a notice under Order 21, Rule 22(1) of the CPC to the judgment-debtor requiring him to show-cause why the decree should not be executed against him. At this stage also while, of course, the Court is required to issue the notice to the judgment-debtor, the decree-holder has a right to persuade the Court executing the decree into issuing a necessary process in execution, before issuing notice to the judgment-debtor. A process in execution of the decree can be issued in such a case to prevent the ends of justice being defeated. There is absolutely no scope to file an application under Order 21. Rule 22 of the CPC. There Is also no scope to pass an order under Order 21, Rule 22 of the CPC in the absence of an application under Order 21, Rule 11 (2) of the CPC, preceded by the filing of the decree under Section 44A of the CPC. This, however, does not mean that the Judgment-debtor should not or rather would not get any opportunity to contest the execution proceeding by raising all the grounds available, including the grounds mentioned in Section 13 of the CPC.

 

CALCUTTA HIGH COURT

Radhamani India Ltd. vs Imperial Garments Ltd. And Anr.
on 18 March, 2004
Equivalent citations: AIR 2005 Cal 47, (2005) 3 CALLT 1 HC
Author: J K Biswas
Bench: J K Biswas

 

 

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