((-1-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1045 OF 2005 IN EXECUTION APPLICATION NO.37 OF 2005 IN CASE NO.1990 K 528 Arvind Jeram Kotecha Original Claimant versus Prabhudas Damodar Kotecha Decree Holder Shri V.V.Tulzapurkar with Mr.Munshi i/by A.R.Vaidya for claimant. Mr.D.R.Zaiwala with J.J.Thakkar for defendants CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J. DATE OF RESERVING THE JUDGEMENT : 19.04.2006 DATE OF RESERVING THE JUDGEMENT : 19.04.2006 DATE OF RESERVING THE JUDGEMENT : 19.04.2006 DATE OF PRONOUNCING THE JUDGEMENT : 05.06.2006 DATE OF PRONOUNCING THE JUDGEMENT : 05.06.2006 DATE OF PRONOUNCING THE JUDGEMENT : 05.06.2006 JUDGEMENT : JUDGEMENT : JUDGEMENT : 1. The Chamber Summons is taken out for the following reliefs :- (a) That leave be granted to the Defendant/Decree holder to execute Execution proceedings against the Plaintiff/Judgement Debtor for recovery ((-2-)) of the sums due to the Defendant from the Plaintiff, more particularly set out in the Execution Application under the judgement dated 22.1.1999 of the Hon’ble High Court of Justice of United Kingdom, Queen’s Bench Division passed in Case No.1990 K 528 and the final costs certificate dated 11.11.2004 and additional certificate dated 17.1.2005 issued by costs officer, High Court of Justice Queen’s Bench Division; (b) That notice under Order XXI, Rule 22(1)(b) of the Civil Procedure Code be dispensed with; (c) Such other and further orders and reliefs as may be necessary in the facts and circumstances of the case may be granted." 2. The Chamber Summons is by the Original Defendant. It is directed against the Claimant/Original Plaintiff. 3. It is contended that the Chamber Summons is to seek leave to execute the decree dated 22nd January 1999 and Final Costs Certificate dated 11th November 2004 along with Additional Certificate dated 17th January 2005 of the Queen’s Bench of High Court of Justice (United Kingdom) in Case No.1990 K 528. 4. This case was filed by the claimant/original plaintiff Arvind Kotecha against Prabhudas Damodar Kotecha (Original Defendant) (hereinafter ((-3-)) for short referred to as "Arvind and Prabhudas"). 5. The case was filed for an order of release of a fund held in the joint names of Arvind and Prabhudas as also for damages. 6. On 25th February 1993, Prabhudas submitted to a consent order in the said proceedings whereby, inter alia, the fund was ordered to be released to Arvind and an order directing damages to be assessed was passed, also by consent. 7. In February 1994 Arvind applied in pursuance of the consent order and prayed for assessment of damages. The Court assessed the damages as "NIL". The Court directed that the judgement be entered for the defendant with costs. The costs were to be "taxed" if not agreed and that Arvind should pay Prabhudas the same. A copy of the judgement and order dated 22nd January 1999 is annexed as Annexure-I to the affidavit in support of present Chamber Summons. 8. A detailed assessment and quantification of the costs was undertaken by the Cost Officer. Thereafter, the abovementioned Final Cost Certificate dated 11th November 2004 was issued, ((-4-)) a copy of which is Annexure-II. The direction is issued to Arvind and the quantum is f.57175.25 plus interest thereon @ 8% p.a. as more particularly set out in the certificate. In other words, Arvind should pay this amount to Prabhudas. 9. The interest due under the final cost certificate has been computed at the rate of f.9159.73. The additional certificate for interest is also issued on 17th January 2005. The computation of costs and interest payable under the order, is as set out hereinbelow. Costs as per the bills of costs = f 39,272.63 Court Fees of the proceedings f 1,728.75 Costs of the proceedings of assessment of costs f 12,648.87 Costs of the detailed assessment f 3,535.00 ----------- f 57,175.25 ----------- Computation of Interest On the sum of f 39,272.63 from 22.1.1999 except interest shall not run for 1184 days On the sum of f 1,728.75 from 29.4.2004 ((-5-)) On the sum of f 12,648.87 from 29.4.2004 On the sum of f 3,525.00 from 26.10.2004 ----------- Interest upto 31.12.2004 = f 9,159.73 ----------- and thereafter at the rate of f 12.53 per day until payment." 10. The affidavit in support sets out the manner in which the proceedings before the Cost Officer went on and it is then contended that against the order, final certificate as also the additional certificate, no appeal has been preferred by Arvind. Therefore, the proceedings are final. 11. Since the order and decree remained unsatisfied and Arvind is residing in India, the defendant Prabhudas has approached this Court seeking its assistance for execution of the decree and order in his favour. The execution application is filed for such enforcement and execution. The basis for institution of execution application, is reciprocal arrangement between United Kingdom and India in the matter of execution of decrees and judgements of superior Courts in both countries. ((-6-)) 12. As Prabhudas seeks enforcement and execution of the decree, present Chamber Summons is taken out and in paras 14 to 16 it is prayed that Warrant of Attachment be issued and further steps be taken for satisfaction of the judgement and decree. 13. Paragraph 17 on page 11 of the affidavit in support of Chamber Summons reads thus:- 17. I submit that the notice under Order XXI Rule 22(1)(b) of Civil Procedure Code be dispensed with as I apprehended that the Claimant/ Judgement Debtor (Mr.Arvind Jeram Kotecha) may create third party interest in the said properties and/or shall attempt to conceal, divert, alienate or remove the properties in order to delay and defeat my claim, which will frustrate the said Judgement and Order dt.22.1.1999 and Final Costs Certificate dated 11.11.2004 and Additional Certificate dated 17.01.2005." 14. Shri Zaiwala - learned senior counsel appearing for Prabhudas submits that adjudication by the Foreign Court with regard to claims of Arvind ended in an order against Arvind insofar as damages is concerned. However, the Court proceeded to direct that Arvind will have to pay costs to Prabhudas and if quantification of such costs is not agreed between Arvind and Prabhudas, ((-7-)) then such quantification must be done by the Competent Officer in accordance with the Rules framed in that behalf. He submits that the order is upon an adjudication and the same being composite, it partakes the character of a decree in favour of Prabhudas. It is only the calculation and computation which is left to be done by the Competent Officer, if there is no agreement between the parties. That order and quantification is final. It is a decree, therefore, provisions of Section 44A of the CPC are applicable. This is a decree of a Superior Court and is capable of being enforced and executed in India in the light of the fact that Arvind is within the jurisdiction of this Court and the moveable properties belonging to him are also situate within the jurisdiction of this Court. There cannot be any objection as the decree is on merits. He submits that leave under order XXI, Rule 22 of CPC is capable of being dispensed with. The execution and/or orders passed during the course of the same, are neither invalid, void nor illegal merely because there is an omission to apply for and grant leave under this provision. In any event, in the present case, application for dispensation is made and the averment in that behalf is set out in the ((-8-)) affidavit in support. Prabhudas being a senior citizen, this Court should not drive him out at this stage by directing taking out of appropriate proceedings and apply for leave therein. 15. Alternatively, Shri Zaiwala submits that what can be urged by Arvind in opposition to grant of leave under Order XXI, Rule 22, is being urged on affidavit in these proceedings. Self-same pleas are going to be raised in an application for grant of leave under Order 21, Rule 22 of CPC.. Therefore, such objections and pleas having been raised, this Court should pronounce upon their legality and validity in these proceedings. In his submission, technicalities should not defeat justice. Rather, all technical requirements and procedures have to be utilised to do justice. For all these reasons, Chamber Summons be made absolute. 16. Shri Zaiwala relied upon Rules prevailing in U.K. which set out the procedure for detailed assessment of costs and default provisions. In his submission, these Rules are applicable to the adjudication which was undertaken by the Superior Court in England. He places reliance upon identical Rules and Practice prevailing on the ((-9-)) Original Side of this Court with regard to payment of costs. 17. In support of his submission that Notice under Order XXI, Rule 22 is capable of being dispensed with, Shri Zaiwala has placed strong reliance upon a decision of Kerala High Court reported in AIR-1997-Kerala-40 (Jaseentha Joseph Vs. Louis Neeklause, Cheppallil St. Joseph House, Patathanam Ward and others) and a Division Bench Judgement of Calcutta High Court reported in AIR-1951-Cal-476 (Chandra Nath Bagchi Vs. Nabadwip Chandra Dutt and others). 18. In support of his contention that order as to costs is also a decree, Shri Zaiwala places reliance upon Mulla’s Commentary on CPC and a Division Bench decision reported in 55-BLR-614 (Aspee India Ltd. Vs. M.L.Dahanukar & Co. Ltd.) and a Single Judge decision reported in AIR-1932-Bom-378 (Rustomji and Ginwala Vs. Fazal Rahim and others). 19. On the other hand, Shri Tulzapurkar - learned senior counsel appearing for Arvind has contended that the Chamber Summons is misconceived, not maintainable and deserves to be ((-10-)) dismissed. His submission is that Section 44A of the CPC makes provisions of Order XXI, Rule 22 applicable to enforcement and execution of Foreign Decrees. There is nothing which permits dispensation of this requirement which is mandatory. He submits that Decree- holder cannot deprive the judgement debtor herein of an opportunity to contest the application for leave under Order XXI, Rule 22 of CPC.. Placing reliance upon the phraseology of Order XXI, Rule 22 of CPC Shri Tulzapurkar submits that provisions enact a code in itself while considering applications for grant of leave. A show cause notice is contemplated to the defendant-judgement debtor herein. He submits that Sub Rules of Order XXI, Rule 22 do not in any manner indicate that provision for leave is not mandatory. 20. Shri Tulzapurkar submits that Sub Rule 3 which has been incorporated by Bombay/ Maharashtra Amendment, cannot be read to mean that notice is capable of being dispensed with straight way. He submits that no case is made out for invocation of Sub Rule 2 of Order XXI, Rule 22. He submits that the stage of Sub Rule 3 has not yet reached. There is no urgency ((-11-)) inasmuch as the final order is dated 11th November 2004. In the mean while, an application was made by way of Judge’s Order but no details pertaining thereto are provided by Prabhudas. The Chamber Summons is taken out in June 2005 and served upon Arvind in September 2005. Paragraph 17 of the affidavit in support, does not make out a case for dispensation of leave under Order XXI, Rule 22. There is a mere apprehension. No details are forth-coming. For this reason the application deserves to be dismissed. In any event, Prabhudas is not precluded from enforcing and executing the decree merely because there is insistence on compliance with Order XXI, Rule 22 of CPC.. 21. Shri Tulzapurkar was at pains in pointing out that the requirement of notice under Order XXI, Rule 22 is something which can be said to be a step-in-aid in execution. It is a vital and important step and not a mere technical requirement. He submits that the property, which is allegedly apprehended of being dealt with, is in fact not dealt with by Arvind. Therefore, Prabhudas should be directed to comply with Order XXI, Rule 22 of the CPC and the Chamber Summons be dismissed with this direction alone. ((-12-)) 22. Without prejudice and alternatively so also proceeding on the basis that this Court is inclined to consider all objections to the execution of decree in question, at this stage itself, Shri Tulzapurkar submits that the order sought to be enforced cannot be said to be a decree. In his submission, the requirement of Section 44A is that, firstly, execution must be of a decree. Secondly, it must be by a Court in Reciprocating Territory. Thirdly, it should be a Superior Court. In Shri Tulzapurkar’s submission, in the present case, United Kingdom may be a reciprocating territory but neither is the order of payment of costs a decree nor it is rendered or delivered by a Superior Court. He submits that this objection goes to the root of the matter and such pleas have been categorically raised by Arvind on affidavit. These pleas have not been countered or denied. Therefore, the application/Chamber Summons must be dismissed. 23. Shri Tulzapurkar took me through all orders and proceedings before the Court in U.K.. He submits that on a plain reading of these orders it is clear that the claim for damages of Arvind is rejected. The plea of payment of costs is ((-13-)) rejected by the Court. The Court has not made any order for payment of costs. That order is passed by the Court Officer who is on par with a Taxing Master. He submits that the quantification/figure which is determined by this Court Officer/Taxing Master, is being pushed through by Prabhudas as an order of a Court and is sought to be enforced and executed as a Decree of the Superior Court. He submits that this is not an order of the Superior Court. 24. Assuming and without admitting that all ingredients of Section 44A(1) are satisfied, Shri Tulzapurkar submits that Explanation-II below Section 44A cannot be ignored. The word "decree" is exhaustively defined in this explanation to mean a decree of a Superior Court under which a sum of money is payable. However, the latter part states clearly that "not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty". Shri Tulzapurkar submits that payment of costs is not what is contemplated in this explanation. In any event, the amount which is quantified as a final figure includes taxes (VAT) and that is clearly outside the purview of the term "decree", as defined in this explanation. He invites my ((-14-)) attention to Exhibit-2 to the affidavit in reply (page 35) in this behalf. 25. The other alternate submission of Shri Tulzapurkar is that the term "decree" as appearing in the explanation, is not any decree or judgement but clearly means the formal expression of an adjudication which, so far as the Court expressing it, conclusively determines 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. Shri Tulzapurkar’s submission is that there is nothing in the order pertaining to payment of costs which would indicate that it is a judgement rendered upon a matter directly adjudicated between parties. He submits that once decree means an expression of adjudication which conclusively determines the rights of parties with regard to all or any of the matters in controversy in the suit, then by no stretch of imagination can it be said that mere direction to pay costs, is contemplated by the expression "decree" appearing in Section 44A as well as Section 2(2) of the CPC.. In his submission, these terms appearing in the explanation below Section 44A and in Section 2(2) are not in any way conflicting or ((-15-)) running contrary to each other. 26. Therefore, present order cannot be said to be a decree on the merits of the case. He submits that as far as direction to pay costs is concerned, it is not a judgement by itself. It is part of judgement and direction to pay costs is entirely discretionary. The Court awards costs in it’s discretion. There is no adjudication involved while exercising this discretion. The main matter or controversy and the discretion exercised while directing payment of costs, are two independent matters. No party has a vested right insofar as direction of costs. Therefore, the order of payment of costs is not a decree. 27. In support of the above propositions, Shri Tulzapurkar places reliance upon following decisions :- i) AIR-1928-Calcutta-60 (Manmatha Nath Ghose Vs. Mt.Luchmi Debi and others) ii) AIR-1986-Himachal Pradesh-3 (Gauri Lal and others Vs. Smt.Sujham Devi) iii) 1996(2)-Mh.L.J.-858 (Laxman Bala Surve and others Vs. M/s.Posh Builders, Bombay and another) ((-16-)) iv) AIR(33)-1946-Madras-296 (Gudemetla China Appalaraju Vs. Kota Venkata Subba Rao) v) AIR-1932-Lahore-649 (Mehar Singh Vs. Ishar Singh) vi) AIR-2001-SC-2134 (M/s.International Woollen Mills Vs. M/s.Standard Wool (U.K.) Ltd. with M/s.Standard Wool (UK) Ltd. Vs. M/s.International Woollen Mills) vii) AIR-1920-Patna-622 (Golab and others Vs. Janki Kuer) viii) AIR-1953-Calcutta-13 (Dudhewalla & Co. Ltd. Vs. Govindram Rameshwarlal) ix) AIR-1953-Calcutta-15 (N.P.Paul Vs. Steel Products Ltd.) x) 1962(2)-SCR-1962-452 (Tirumalachetti Rajaram Vs. Tirumalachetti Radhakrishnayya Chetty) xi) An unreported order passed in Execution Application No.205 of 1997 in Notice No.1772 of 1997 along with other matters of this Court (Coram : Smt.Nishita Mhatre, J.) dated 8th August 2003. xii) An unreported order passed in Notice of Motion No.1400 of 2004 in Appeal No.1123 of 2003 and another matter by this Court (Coram : H.L.Gokhale and S.U.Kamdar) dated 13th April 2004. xiii) 1996(2)-Mh.L.J.-858 (Laxman Bala Surve and others Vs. M/s.Posh Builders, Bombay and another) xiv) An unreported order of this Court in Chamber Summons No.812 of 2003 in Notice No.571 of 2003 (Coram : P.V.Kakade, J.) dated 4th September 2003. xv) An unreported order of this Court in Appeal No.819 of 2003 in Chamber Summons No.812 of 2003 (Coram : R.M.Lodha and Smt.Nishita Mhatre, JJ.) dated 3rd November 2003. ((-17-)) xvi) 23(XXIII)-BLR-189 (In case of Jagannath Vasudeo Pandit 28. In all fairness, Shri Tulzapurkar submits that some what similar question fell for consideration of a learned Single Judge of this Court (Mrs.Mhatre, J.) in Execution Application Nos.204 and 205 of 1997 and in a judgement delivered on 8th August 2003, she rejected the objections of present nature. However, Appeal No.1123 of 2003 challenging that decision/ judgement, is admitted by a Division Bench of this Court and on 13th April 2004 the order of Mrs.Mhatre, J. has been stayed. Hence, no reliance can be placed on this judgement. For the above reasons, in his submission, this Chamber Summons must be rejected. 29. With the assistance of the learned Senior Counsel I have perused the Chamber Summons, the affidavit in support, reply and rejoinder. I have perused the annexures thereto including the consent order dated 25th February 1953, the judgment dated 22nd January 1999 and the certificates. I have also gone through the statutory provisions and decisions brought to my notice. ((-18-)) 30. For properly appreciating the rival contentions, it is necessary to refer to Sections 44A and 13 of CPC so also Order XXI, Rule 22 of the Code. For ready reference, these provisions are reproduced hereinbelow :- "44A. Execution of decrees passed by "44A. Execution of decrees passed by "44A. Execution of decrees passed by Courts in reciprocating territory.- Courts in reciprocating territory.- Courts in reciprocating territory.- (1) Where a certified copy of a decree of any of the superior Court of any reciprocating territory has been filed in a District Court, the decree may be executed in 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. (Explanation I - "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 ((-19-)) of this section, and "superior Courts" with reference to any such territory, means such Courts as may be specified in the said notification. Explanation II - "Decree" with reference to a superior Court means any decree or judgement of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or 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 such an award is enforceable as a decree or judgement.) *** Section 13 : When Foreign judgement not Section 13 : When Foreign judgement not Section 13 : When Foreign judgement not conclusive.- conclusive.- conclusive.- A foreign judgement 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 the fact of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India 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 India. *** ORDER XXI - Execution of Decrees and ORDER XXI - Execution of Decrees and ORDER XXI - Execution of Decrees and Orders.- Orders.- Orders.- ((-20-)) Rule 22 : Notice to show cause against execution in certain cases.- (1) Where an application for execution is made- (a) more than two years after the date of the decree, or (b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44-A, or (c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him : Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him. (2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice." ((-21-)) A bare perusal of Section 44A which