P L D 1998 Karachi 104 (PLP)

In this execution application under section 44-A, C.P.C. read with rule 309 of Sindh Chief Court (O.S.) Rule. for enforcement of a decree passed by the High Court of Justice Queen's Bench Division, England, respondent/judgment-debtor has raised the following objections and exceptions to show that the decree cannot be executed against him- (1) that the execution by reason of Article 181 of the First Schedule to the Limitation Act being filed beyond three years from the date of decree is barred by law. (2) That the suit to recover gaming/gambling debt cannot be decreed and enforced in Pakistan by reason of section 13(f), C.P.C. and section 30, Contract Act. (3) That the decree was passed without jurisdiction inasmuch as no service of process was done on him according to Pakistan law and that he had not submitted to the jurisdiction of English Court.

2. Decree-holder named above filed a claim for payment of Pounds 25,000 together with Pounds 1,709,25 by way of interest and Pounds 118 as costs in respect of amount of six dishonoured cheques against the judgment-debtor in which according to the decree, the writ was duly served on 26th February, 1987 upon the judgment-debtor who did not acknowledge service of the writ and did not give notice of intimation to them hence the claim was decreed as prayed less Pounds 1000 paid by the judgment-debtor since the date of issue of writ.

3. Execution application was presented and registered in the office of this Court on 13-8-1991 for recovery of the amount in Pak currency with interest/compensation at 5-1 /2 % .

4. Objections to the execution of the foreign Court decree filed on behalf of the judgment-debtor, were dismissed by Mr. G.H. Malik, J. (as he then was ) for the reason that the judgment-debtor failed to comply with the requirements of Order XXI, rule 23-A, C.P.C. by a short order dated 31-5-1992, detailed reasons wherefor were recorded on 6-6-1992. This order was impugned in High Court Appeal No. 94/1992 which came up before a Division Bench consisting of S. Haider Ali Pirzada and S. Khurshid Hyder Rizvi, JJ. (as they then were) who allowed the appeal and recalled the impugned order expressing the view that section 44-A, C.P.C. is a self-contained Code as regards execution of a foreign decree and that in absence of any provision in the aforesaid section right of hearing objections without furnishing security cannot be curtailed. Judgment in High Court Appeal was impugned in Civil Appeal No.K-257/1993 which was dismissed vide judgment dated 31-12-1996 recently published in 1997 SCMR 323.

5. Section 44-A, C.P.C. governing the decree in hand provides for execution of certain types of foreign judgments and decrees. By reason of this section, the judgments of the superior Courts of the United Kingdom and other reciprocating territories can be executed in Pakistan upon filing a certified copy of the same in a District Court and thereafter such decree shall be treated as if it were a decree passed by the District Court and all the provisions relating to execution contained in C.P.C. shall be attracted thereto. It is spelt out from the aforesaid provisions of law that certified copy of such decree shall be filed alongwith a certificate from such superior Court stating the extent if any to which it has been satisfied or adjusted and such certificate shall be conclusive proof of the extent of such satisfaction for the purpose of execution. By reference to clauses (a) to (f) of section 13, C.P.C., it is stipulated that 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 such exceptions. It further seems that the provisions of section 47, C.P.C. as from the filing of the certified copy of the decree shall apply to the proceeding of a District Court executing a decree under this section. It may not be out of context to produce hereunder the provisions contained in section 13, C.P.C. which reads as under: "

13. When foreign judgment not conclusive.--A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-- (a) Where it has not been pronounced by a Court of competent jurisdiction; (b) Where it has not been given on the merits of the case; (c) Where it appears on face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognise the law of Pakistan in cases in which such law is applicable; (d) Where the proceedings in which the judgment was obtained are opposed to natural justice; (e) Where it has been obtained by fraud; (f) Where it sustains a claim founded on a breach of any law in force in Pakistan. "

6. Adverting to the objection as to the execution being patently hit by the provisions of Limitation Act, a reference may be made to Article 181 of the First Schedule to the Limitation Act which prescribes a period of three years for an application for which no period of limitation is provided elsewhere in the schedule or by section 48 of the Code of Civil Procedure, 1908. This Article is a residuary Article which is available in cases in which no other Article dealing with the application under the C.P.C. is 'attracted. The .period of limitation so prescribed would commence from the date when the right to apply accrues. The right to apply in such cases would ordinarily arise from the date of decree unless the operation of the decree is suspended. In the present case as would be seen from the decree itself it was passed on or about 7th October, 1987 whereas execution was presented in the office of this Court for the first time on 13-8-1991 which on the face of it was filed beyond the period prescribed by law. There can be no exception to the view that such application was filed far beyond the expiry of the period fixed by the Limitation Act and notwithstanding the view expressed in Shaik Ali v. Shaik Muhammad (AIR 1967 Madras 45), that Limitation Act does not apply to execution of foreign decree that the view taken in Lukhpat Rai Sherma v. Atma Singh (AIR 1971 Punjab & Haryana 476) runs counter to the Madras view. It was ruled by a Division Bench in this case that though the decree of a foreign Court has to be treated as a decree passed by the District Court for the purpose of execution, application filed for execution for such decree cannot be entertained where neither any step in the execution nor the step in aid of such execution has been taken by the decree-holder in any Indian Court within three years from the date of passing of such foreign decree. The view taken by Madras High Court was also distinguished by our own Supreme Court in 1997 SCMR 323 as the ratio decidendi of the above case seems to be that section 44-A(a), C.P.C. is confined to the powers and the manner of execution and has nothing to do with the law of limitation and that the fiction created by the subsection goes no further and is not for all purposes but is designed to attract and apply to the execution of foreign judgment by the District Court, its own power of execution and the manner of it in relation to its decrees without reference to limitation.

7. It is, thus, evident that the execution application is barred by law having been filed beyond the period prescribed in Article 181 of the First Schedule to the Limitation Act. I am least impressed by the contention raised on behalf of the decree-holder that the right to apply accrued after obtaining certificate relating to non-satisfaction of decree from the English Court which passed the decree. Learned counsel vainly referred to such certificate dated 5th March, 1991 but this certificate alone would neither extend the period of limitation nor deferred the commencement of period of limitation for making application for execution of a foreign decree. Suffice however to say that affidavit for obtaining such certificate was sworn before the prescribed officer of the English Court only on 7th January, 1991 and filed before the Court on 16th January, 1991 by which date execution itself had become barred by law. It may further be pertinent to observe that the execution could be filed within the period prescribed by law and certificate with regard to non-satisfaction of the decree filed subsequently before the executing Court.

8. Adverting to the second contention raised on behalf of the judgment debtor that law suit to recover gaming debt cannot be enforced in Pakistan by reason of section 13(f), C.P.C. which postulates an exception clause to the conclusiveness of a foreign judgment. This clause provides for an exception where a foreign judgment sustains a claim founded on a breach of any law in force in Pakistan. While a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the parties subject to exceptions enumerated in clauses (a) to (f) and by reason of section 14, C.P.C. there is a presumption to the effect that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. It is nobody's case that the English Court which passed the decree acted without jurisdiction but such decree can always be attacked and assailed in collateral proceedings like execution or satisfaction of the decree and more particularly under clauses (a) to (f) of section 13, C.P.C. It is urged that provision of section 16 of the Gaming Act, 1968 under which the cheques were paid to the plaintiff renders the recovery of such debt unlawful even in England. It is more particularly repugnant to section 30 of the Contract Act. Latter provision of law stipulates that agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made. If the amount was paid to the JD by reason of a wagering contract, it may be completely violative of public policy and thus not enforceable in this country. Needless to point out an act of gaming and gambling is not only prohibited by Gambling Ordinance, 1961 but also repugnant to Injunctions of Quran and Sunnah which are embedded in every statute and any statute being repugnant to such injunctions would be void. It may further be observed that the act of horse-racing is regulated by law in Pakistan, betting on such races has been declared repugnant to Injunction of Islam. I am fortified in this view by a Full Bench judgment of Federal Shariat Court of Pakistan in Raja Khushbakhtur-Rehmamv. The Province of Punjab (PLD 1986 Federal Shariat Court 49). In this Shariat petition, petitioners challenged the vires of section 2(b) of Punjab Prevention of Gambling Ordinance, 1978 which was heard by a Full Bench consisting of five Judges. The conclusion arrived at by the Full Bench was that betting of horses in present form is gambling--Bilateral betting being gambling is forbidden in Islam--Tradition of Prophet of Mohallil is proved only in case of horses being trained for Jehad and was not available to allow the gambling-Betting with Mohallil was therefore not allowed--Betting by spectators of horse racing are not permitted in Islam. No contrivance can be allowed to operate to achieve a forbidden result. Horse-races are excepted from general restriction, only because of their need and necessity in Jehad against enemies of Allah and Islam. 8-A. Although no precedent is required for the view I have taken hereinabove, there is a Full Bench decision by Federal Shariat Court in Mushtaq Ali v. Government of Pakistan (PLD 1989 Federal Shariat Court 60) in which the Federal Shariat Court has elaborately discussed the lottery scheme in the wake of sections 294-A and 294-B, P.P.C. After an exhaustive and comprehensive analysis of merits and demerits of the lottery scheme, the Court observed as under: "Be that as it may, such a payment over and above the amount of loan or contribution is like interest, and so prohibited as stated by Wahaba Zuhailee Vol. V, page

178. It says Further, the very way of luring people to contribute towards objects which are pious or charitable appears to be a rebellion against the Injunctions of Islam. It is neither the fear nor love of Allah but the temptation of a windfall that tempts the investors to bring contributions for the stated purposes." Recalling attention to verses 8:60 and 34:39 the Court observed that the net result is that luring people to contribute for pious and charitable causes on the temptations of monetary and worldly gains in such schemes would not only amount to paying exorbitant interest in that form but also defeating the Qur'anic dictates. In the ultimate analysis the Court declared section 294-A as repugnant to the Injunctions of Qur'an and Sunnah and desired the President of Pakistan to take steps for amending sections 294-A and 294-B suitably. The verdict was assailed by Federation of Pakistan before Shariat Appellate Bench of the Supreme Court which was dismissed. The judgment is reported as Federation of Pakistan v. Mushtaq Ali, Advocate PLD 1992 SC

153. The apex Court unanimously declared as under: "(1) Section 294-A of the Pakistan Penal Code in so far as it exempts " State lottery or a lottery authorized by the Provincial Government" is repugnant to the Injunctions of Islam; (2) Section 294-B of the Pakistan Penal Code in so far as it by its generality prohibits free trade in commodities on fair market price also, is repugnant to the Injunctions of Islam." Indeed the statement of claim forming the subject-matter of the decree expressly stipulates that the claim for the sum of Pounds 25,000 against the defendant as the drawer of a series of six cheques payable to the plaintiff which cheques were paid to the plaintiff in accordance with the provisions of section 16 of the Gaming Act, 1968 which was complied with in all respects. A glance at section 16 as referred to above renders such credits for gaming neither lawful nor enforceable ,at law. For these reasons as well the decree is not capable of execution as such transaction would fall within the ambit of section 30 of the Contract Act read with section 13(f), C.P.C. besides being hit by the express prohibition contained in Shariat Law.

9. Adverting -to the third contention that the decree was passed without jurisdiction as the service of process was not effected on the judgment-debtor in accordance with the Pakistan Law, there is hardly any merit in this submission as well. It is doubtful whether the service of writ before the England Court would be regulated by the law applicable in Pakistan and in all fairness the Civil Procedure Code in relation to service of writ as applicable in English might be attracted in the case in hand. The judgment under consideration expressly shows that the writ relating to the claim was duly served on 26th day of February, 1987 upon the defendant by ordinary post first class mail in an envelope duly pre-paid and properly addressed to him at his address who did not acknowledge service of the writ and did not give notice of intention to defend. There is an affidavit of plaintiff's Legal Manager in support of the judgment filed before the English Court that the said copy writ was duly sealed with the seal of the Court office out of which it was issued and was accompanied by a prescribed form of acknowledgment of service; the said letter or envelope had not been returned by the post office through the dead letter service and in his opinion and in the opinion of the plaintiff, the said writ of summon so posted to the said defendant will have come to his knowledge within seven days after the said date of posting thereof. In fact, the service of process was duly accepted and upheld by the English Court which cannot be lawfully questioned before this Court in execution proceedings as it is neither opposed to the manner of service of process as provided in the Civil Procedure Code nor any other law. The procedure adopted by the English Court is also in consonance with the presumption of service arising under section 27 of the General Clauses Act, 1897 which has been generally accepted by superior Courts in this country. No' doubt JD in his objections has questioned the service of process on him for the I reason that in February, 1987 he was not in England nor residing in 66, Devon Port South Wick Street, London W-2. To my mind, mere objection would not be sufficient to defeat the decree or to refuse execution. On the contrary decree holder has placed on record various documents including the letters from solicitors of the JD to demonstrate that he was residing at the address disclosed in the claim filed against him. At any rate, this Court cannot go behind the decree and I am not inclined to accept the solitary word of JD at this belated stage that there was no effective service of process on him or that he did not reside at the given address. No doubt, the presumption raised by the English Court and as envisaged in section 27 of the General Clauses Act may be rebuttable in my opinion judgment-debtor has miserably failed to displace such presumption. For the aforesaid reasons, execution fails and is hereby dismissed A.A./G-46/K Execution dismissed