P L Q 1993 Karachi 449 (PLP)

SYED HAIDER ALI PIRZADA, J.

This appeal arises out of execution proceedings wherein the appellant's objections were dismissed by an order dated 31-5-1992. The learned Single Judge has held that provisions of Order Y_XI, Rule 23-A, C.P.C. are applicable to. a decree of a foreign Court. It is against the order of ' the learned, Single Judge, the judgment-debtor has filed the present appeal. The facts leading to the filing of the above appeal are that the respondent had ' filed a - suit against the appellant in England for recovery of Pounds 25,000 together with Pounds 1,709.25 interest and pounds 118, as costs in respect of the amount of six dishonoured cheques. The High Court of Justice, Queen Bench Division, England decreed the claim of the respondent with interest and costs. The respondent filed a petition under section 44-A, C.P.C. read with Rule'309 of Sindh Chief Court Rules. The appellant riled objections. The appellant raised a number. of objections, namely (i) papers/documents purporting to be certificates and certified copies of foreign Court cannot be accepted as t rue ' or correct 'as they are. not certified by Pakistan Counsel/Diplomatic Agent as required by Article 89(5) of' Qanun-e Shahadat, 1984, (ii) petition is barred by time, (iii) decree was not given on merits of the case, (iv) purported service shown is not good service, and (v) the proceedings in which judgment was obtained are opposed to rules of natural justice. The respondent filed an application for dismissal of objections because the appellant had not deposited the decretal amount or furnished security for the payment.. The learned Single Judge allowed the application of the respondent and dismissed the objections. Hence the present appeal. We have heard Mr. J. H., Rahimtoola, learned counsel appearing for the appellant and Mr.. Qamar Abbas, learned counsel appearing for the respondent. Mr.Qamar Abbas raised a preliminary objection regarding maintainability of this appeal. On the other hand, Mr. J.H. Rahimtoola submitted that the -appeal is competent. In order to understand the rival contentions of the learned counsel appearing for the parties, it is advantageous to reprod4ce sectidns. 2(2), 2(9) and 2(14) of the Code of Civil Procedure. The word decree is defined in section. 2(2) of the Code, of Civil Procedure as under:-- under-.-- 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of-the parties with regard to all or any. of the matters in controversy in the suit and may be either preliminary or final. It shall. be deemed to include, the rejection of 'a plaint, the determination of any question within section 144, and an order under rule 60, 98, 99, 101 or 103 of Order XXI but shall not include-- (a) any adjudication for which an appeal lies as an, appeal from order, or (b) any order of dismissal for default." The word "judgment" under section 2(9) of the Code is defined as 'Judgement' means the statement given by the judge of the grounds of a decree or order" The word "order" under section 2(14) of the Code. is defined -to mean: "'Order' means the formal expression of any decision of a Civil Court which is not a decree:" The real question for determination is whether order dismissing. the objections for non-compliance of provisions of Rule 23-A of Order XXI'of the Code. (sic) within section 2(2) read with section 47, C.P.C. If it does, it will be appealable under section 104, C.P.C., otherwise it will be one of those orders against which no appeal is alloiWed by the Code. According to section 2(2), decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parti&s With regard to all or. an~ of -the matters in controversy in the, suit and may be either preliminary or final.. Section 47(l) lays down that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction' of the decree, shall be determined by the Court executing the decree and not by a separate suit. By amendment introduced by the Law Reforms Ordinance,- XII .of 1972, determinations under section 47, which were previously introduced in the definition of a decree are no longer decrees. However, orders under Rule 60, 98, 99, 101 or 103 of Order XXI have been included in the definition of a decree. Prior to amendment, all order's in execution finally determining the rights of the parties (passed under section 4-7), were on account of their being decrees, subject to the incidence of first and second appeal. Now, however, *orders passed under section 47 have by virtue of the newly introduced section 104(ff), have. been made appealable orders by virtue of. section 2(2) (b) cannot be classed as decrees. Under the present law, all questions without. exceptions 'i.e., -all questions which determine the rights and liabilities of the parties irr the I.natter of the execution of the decree are appealable. Now, a - decision that the objections are dismissed for non compliance of the -provisions of Order XXI Rule 2~-A does determine a right for'the. time being and 'may have very, . far reaching results. The dismissal of objections is a question relating to execution; it allows the execution oi the foreign decree. The learned counsel appealing for the parties cited a number' of decisions in. support of their respective contentions but it is not necessary to .refer these decision is in detail as the -objections were dismissed . for non compliance of the provisions of Order XXI, Rule 23-A, C.P.C. as we think that the provisions of Rule 23-A are not attracted in the present case. A foreign- judgment or decree does not operate proprio vigori in this country and is not capable of automatic execution- by the Pakistani Courts. Section. 2(6) of the Code of Civil Procedure defines 'foreign Court". It means a Court situated beyond the limits of Pakistan which has no authority in Pakistan and is hot established or continued by the -Federal Government. Section .2 of the Code defines "foreign judgment" as -one of a foreign Court. While a decree' of a Pakistani Court is enforced by proceedings in execution;- a foreign judgment, until the enactment of sections 44 and 44-A of the Code, could only be enforced by a. suit upon that judgment, subject, however, to the provisions of section 13 of the Code. It will be useful to notice the position in the United Kingdom of foreign judgments or decrees. The Judgments Extension Act, 1968 was the first in point of time to be enacted by the British Parliament which made certain- judgments of the superior Courts of Scotland and Ireland effective in the. United Kingdom. Before the Act, the only way was. to enforce such judgment in the U.K. was by institution of suits on4hem. After the Act, the executability of such judgments in the United Kingdom was permitted on a system of registration with the, British Courts by means. of a certificate that the particular judgment had been obtained in a superior Court in Scotland or Ireland. The foreign judgment, when. so registered, was registered as extended judgment for purposes -of execution but was made subject to. -certain restrictions. Next came- the Administration of Justice Act 1920, which extended the facility of execution in the United Kingdom of foreign judgment to such judgments obtained in a superior Court in any of the British Dominions. The registration was, therefore, not as of right unlike the earlier Act of 1868. Further the 1920 Act provided for certain conditions -or restrictions for registration some of which were analogous to those mentioned. in section 13, C.P.C. Once a judgment of dominion was registered at the British High Court, it was regarded to have the same force as if it had been initially obtained in the registering Court. In British India, there was originally no statutory or other provision Conferring on undivided India, to enforce foreign judgments in execution: On 27~2-1924 a bill as introduced in the Central Legislature to provide for enforcement in undivided India of judgments ' obtained in the United Kingdom or other notified points of His Majesty's Dominions, as part of reciprocal arrangement ' by which the provisions - of Part 11 of the Administration of Justice, Act, 1920, were to be. extended to the undivided India. But the position became different by the passing of the Foreign Judgments (Reciprocal 'Enforcement) Act, 1933 which provided for the extension of Part I of the Act to His Majesty's Dominions outside the-United Kingdom by the order in council and also left it to the order in council to specify the Courts which should be deemed as superior within the meaning of the Act. Section 44-A was inserted in Civil Procedure Code by section 2 of the C.P.C. (Amendment) Act of 1937. The section as then enacted reads:-- "44-A. Execution of decrees passed by Courts in the United Kingdom and other reciprocating territory .--(l) Where a certified copy of a decree of any of. the superior Courts of the United- Kingdom or any reciprocating territory has been filed in a District Court, the decree may be executed' in Pakistan as if it had been passed by the, District Court. '(2) Together with the certified copy of the decree shall be tiled 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 concl isive 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 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. , Explanation 1.

'Superior Courts ..... ; Expldnation 2.--"Reciprocating territory" means. the United Kingdom and such other country or territory as the Federal Government may, from time to* time, by notification in the official Gqette, declare to be reciprocating territory for the purposes of this section; and "superior Courts", with reference to any sitch territory, means such Courts as may be specified in the said notification. Erplapation 3.

("Decree ....................... I Section 44-A, C.P.C. made thereunder compendiously but exhaustively in a reciprocating territory but also the procedure to be followed in exec ition. The jurisdiction to execute a foreign judgment is entrusted to a District Court and arises with the filing in such Court of a certified copy of a decree of any of the superior Courts of the reciprocating territories. On such filing the decree of the foreign Court becomes executable in Pakistan as if it had been passed by the District Court. the term "district" is defined in the Code to mean the local limits of the jurisdiction of a principal Civil Court of original jurisdiction which is called a "District Court" and includes the local limits of the- ordinary. Original civil jurisdiction of a High Court. Tliough section 44-A(l) of the Code speaks of a decree of a foreign. Court, it may be taken that as it means but the formal expression of an adjudication, it includes a judgment of a superior Court of a reciprocating territory in accordance with which no normal decree is drawn up under this procedure applicable to it. In fact, this is made clear by the third explanation to the section. But the judgment should be one, so far as the Court entering, it which conclusively -determines the rights of the parties with regard to all or any of the matters in controversy. Further, for. The purpose of section 44-A, a decree or judgment of a superior Court in the reciprocating territory but is confined. to a decree or judgment for money. Even then, the money payable under the foreign decree or judgment - should noube one *in respect of taxes or other-charges of a like nature or in respect of a fine or other penalty. There is also a further restriction, namely, an arbitration award, even though it may be enforceable as a decree or judgment is not enforceable within the purview of section 44-Ai Subsections (2) and (3) of section 44-A, 'contain the procedure -to be adopted in execution of decree or judgment passed by., superior Courts. Subsection ~2) further contains a rule of evidence. Together with the certified copy of a decriee should'be filed.a certificate from the relevant superior Court showing the extent to which it has been satisfied or adjusted and such certificate is conclusive proof of the extent of satisfaction or adjustment. This only means that the executing Court cannot go behind the certificate and embark on an enquiry for the extent of satisfaction or adjustment of the'decree as on the date *of the certificate. It would impliedly follow that it is open to a party in an executing Court in Pakistan to show that the foreign decree or judgment has since been satisfied or adjusted. This is a matter relating to execution, discharge or satisfaction of the decree or judgment and in fact section 44-A(2) which applies section 47 to. execution as from -filing of the certified copy of the decree in a Disttic.t,Court, enables that Court to decide such question. We are of the view that certain restrictions operate the recognition and effect to. be given to. a for ' eign judgment either in an,action based on it or in its execution under' the enabling statutory provisions. These -restrictions and matters of public- policy legislative and judicial. Such restrictions are extended by section 44(3) to the execution of a foreign judgment; where such restrictions apply, the District Court is perforce to refuse execution of the foreign decree. By the same amendment Act, Rule 22 of Order XXI of the First Schedule of the Code of Civil Procedure was amended and in (1)(b) after the words " party to a decree" the following words w ere inserted, namely: or where an application is made for execution of a decree riled under the provisions of section 44-A. The result of the amendment was that where an application was made under section 44-A of the Code, the Court executing the decree had to issue a notice to the person against whom execution was applied for, requiring him to show cause, on a date to be fixed, why the decree should not be. executed against him. The words "as if it had been passed by the District- Court", undoubtedly create a fiction which are confined in the decreeing sense, treating the foreign decree for the purposes of section 44-A. as a decree passed by the District Court or in a sense not having that effect but or indicating a fiction of lesser scope just enabling the District Court to apply to execution the manner of procedure indicated by section 44-A. . If a statute directs an imaginary state of affairs t6 be taken as a real, one should imagine also as real the consequences and incidents which,'if the putative statp of affairs had -in fact existed, must inevitably have. flowed from or accompanied it and not boggle with one's imagination when it comes to the inevitable corollaries of the state *of affairs imagined as real. Applying this principle, we are of the opinion- that the Court must assume for purposes of section 44-A that the District Court had actually passed the decree. The purpose of the petition in section 44-A(l) will be clear from an examination of the general section relating to execution in Part Il of the Code of Civil Procedure. Section 37 defines a Court which passed a decree. Section 38 says that a decree may be executed either by the Court which passed it or -by the Court to which it was sent for execution. The Court which passed i decree may, under section 39, on application,. send it for execution to another Court if certain conditions specified therein are satisfied. Section 40 provides. for transfer of decrees made by Courts in one province to Courts in another province for execution. Under section 42, the Court executing a decree. sent to it, shall have the same powers of execution as the Court which passed the decree. Similar words occur in section 44 which relates to execution of decrees of Revenue Courts in place to which the Code does not extend. The scheme of the sections relating to execution, is that a decree is executed either by the Court which passed it or the Court to which it is transferred- for execution and in the latter case, the transferee Court will have the same powers of execution as the Court which passed the decree possesses. The whole purpose of the words "as if it had been passed by the District Court" in section 44-A(l) clearly, in the context.of the preceding sections, appears to be to determine or fix the particular District Court in Pakistan to execute the foreign decree or judgment and attract to its execution by such Court the manner of procedure that governs execution of its own decree. From a bare reading of section 44-A(l) of the Code, it would be clear that it is an independent section and it is not controlled by the provisions of any other section. The moment a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory and a certificate from siich superior Court stating the extenf, if any, to which the decree has been satisfied or adjusted, are produced in District Co nit in Pakistan, then the decree may be. executed in Pakistan as if it had been passed by the' District Court. Order XXI, Rule 22(1)(b) provides that where. an application was made under section 44-A of the Code, the Court executing the decree has-to issue a notice to the, person against whom execution was applied for, requiring him to show cause, on a date to be fixed, why the decree. should not be executed against him. The judgment-debtor would be entitled to raise suitable objections before the Court and it is only after his objections are heard that the application of the* decree-holder would be dismissed. There is no merit raised on behalf of the respondent. Rule 23-A, . which requires deposit of decretal amount in Court or furnishing of security for its payment is hot applicable to a foreign decree or judgment. The judgment-debtor asserts that the decree falls within any of the exceptions specified in clauses' (a) to (f) of section

13. Without holding some sort of inquiry, the learned Single Judge ought not to have applied the provisions of rule 23-A. . Section 44-A of the Code is a self-contained Code as regards execution of a foreign decree. In the absence of any provisions in the aforesaid section curtailing the right of hearing objections, as has been done by. the learned Single Judge we are of the opinion that the impugned order was wholly untenable We are of the opinion, for these reasons, that this appeal must be allowed and the objections of the appellant should be treated as still pending adjudication. The same are to be dealt with according to law in the. light of what we have said. AA./A-1361/K