Bombay High Court
Pearl Chesson vs Sean Paul Lawrence on 5 February, 2020
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
77.CHS646_2019.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 646 OF 2019
IN
EXECUTION APPLICATION NO. 1827 OF 2018
IN
PERSONAL STATUS APPEAL NO. 147 OF 2011
Pearl Chesson ... Applicant/Jud. Creditor
V/s.
Sean Paul Lawrence ... Respondent/Jud. Debtor
Mr. Jaideep Mitra a/w. Ms. Swati Chaurasia i/b. Ms. Swati Chaurasia for the
applicant/judgment creditor.
None for the respondent/judgment debtor.
CORAM : G.S.KULKARNI, J.
DATE : 5 February 2020 P.C.:
Heard Mr. Mitra, learned counsel for the applicant. The respondent/judgment debtor though served, is not appearing. On 26 November 2019, the respondent/judgment debtor was represented by Mr. Mohd. Khalik i/b. Nimesh Mehta when the Court had passed the following order:
"1. Mr. Mohd. Khalik, advocate is now representing the judgment debtor. He undertakes to file Vakalatnama within one week from today.
2. Reply, if any, to the chamber summons be placed on record before the adjourned date of hearing with a copy to the applicant well in advance.
3. As a last chance, stand over to 10 December 2019."
2. Thereafter on 29 January 2020 this Court had heard the Chamber 1/9
77.CHS646_2019.doc Summons and directed the office to verify as to whether the proceedings comply the requirement under section 44A of CPC and place the report on record. Consequent thereto, a report dated 4 February 2020 has been placed on record by the Master and Asstt. Prothonotary (Adm.) stating that by notification dated 17 January 2020, Ministry of Law and Justice (Department of Legal Affairs) under G.S.R. 38(E), the Central Government has declared United Arab Emirates to be a reciprocating territory for the purposes of Section 44A of the Code of Civil Procedure. The copy of the notification is also enclosed with the report.
3. On the above backdrop, I have heard Mr. Mitra, learned counsel for the applicant. By this Chamber Summons, the applicant/judgment creditor has prayed for the following reliefs in execution of the decree which is passed by the Court at Dubai:
"(a) That the movable property mentioned in the schedule to the Execution Application be attached under Order XXI Rule 43.
(b) That the immoveable property mentioned in the schedule to the Execution Application be attached under Order XXI Rule 54.
(c) That the immovable and movable property so attached be order to be sold under Order XXI Rule 64 and the proceeds be paid over to the decree holder in part satisfaction of the decree.
(d) For such other and further orders and reliefs as the nature and circumstances of the case may require.
(e) That costs of this chamber summons be provided for."2/9
77.CHS646_2019.doc
4. A dispute between the judgment creditor and the respondent/judgment debtor, subject matter of Case No. 134 of 2010, which were principally matrimonial proceedings was adjudicated by the trial Court at Dubai. The applicant's suit was decreed by a judgment of the trial Court dated 7 November 2011. The relevant documents in that regard are placed on record at pages nos. 39 to 49. The following reliefs were granted in favour of the applicant as pointed out by Mr. Mitra, learned counsel for the applicant in a statement as tendered by him:
1. Separation between her and the defendant
2. Confirmation of custody of her two daughters, Nyah and Kyra, in favour of the plaintiff
3. To make him obliged to provide a maid for his two daughters and bear the expenses of bringing maid and her salary
4. Make him obliged to provide 1500 AED monthly to the plaintiff as her expenses from August 2010 till the date of judgment of separation
5. To make him obliged to provide 2000 AED monthly to each of two daughters; Nyah and Kyra to cover their expenses of food and clothing
6. To make him obliged to pay for medical insurance for both daughters
7. To make him obliged to pay accommodation rent AED.65000 yearly for both daughters
8. To make him obliged to pay child custody expenses AED.2000 monthly
9. To make him obliged to bear fee, expenses and charges.3/9
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(ii) Judgment Debtor remained present and heard:
a) Pg. 41, 47, 49 of the Execution Application - Counter Claim filed.
b) Pg. 42 - Both parties appeared
c) Pg. 48 - Decree passed in favour of Decree holder/wife, in the presence of the Defendant/Husband/Judgment Debtor.
(iii) Prayers granted by the Decree dated 7 November 2011.
1- Execution of decision of two judges for separation between the plaintiff, Pearl Chesson and the defendant, Sean Paul Lawrence by irrevocable divorce because of harm without any allowance paid by the wife, and the plaintiff must complete her legal waiting period according to Shariah with effect from the date of execution of this judgment.
2- Confirmation of upbringing and custody of two minors; Kyra and Nyah granted to the plaintiff from the defendant. 3- Made him obliged to pay AED.750 monthly maid salary and AED.2000 maid recruiting and bring charges only for one time. 4- To make him obliged to pay her AED. 1000 monthly as wife's expenses including everything with effect from the date of filing the case on 26/08/2010 and till the judgment of irrevocable divorce. 5- To make him obliged to pay equally expenses to two daughters; Kyra and Nyah AED. 1800 monthly, including all aspect of expenses except of the accommodation with effect from the date of filing the case on 26/08/2010.
6- To make him obliged to pay her AED. 20000 yearly as accommodation rent for both daughters including electricity, water and telephone.
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77.CHS646_2019.doc 7- To make him obliged to pay her AED.750 monthly as upbringing charges for both daughters; Kyra and Nyah with effect from expiry of waiting period.
8- To make him obliged to pay fee and charges AED.300 against lawyer's charges.
9- Rejection of requests other than the above. Secondly: in the counter claim:
1- To make her obliged to hand over original passport of two daughters, Kyra and Nyah.
2- To make her obliged to pay fee and charges AED. 300 as lawyer's fee."
5. The judgment and decree passed by the trial Court was subject matter of cross appeals, being Appeal No. 360 of 2011 filed by the applicant/decree holder and Appeal No. 388 of 2011 filed by the husband/judgment debtor before the Court of Appeal, Dubai. Both these appeals were decided by a common judgment and order dated 5 November 2011 (pages 50 to 57 of the Paper book) and following reliefs came to be granted in favour of the judgment debtor:
Firstly: Formal Acceptance of the appeal Secondly: cancellation and amendment in the appealed judgment I which estimations of expenses and wages were ruled. Request of re-ruling according to her requests mentioned in the writ of the case and amendment of the appealed judgment in which it was ruled to oblige her to handover original passport of both minors to the respondent, she requested to hand it over to the custody of the court.5/9
77.CHS646_2019.doc Thirdly: Obliging the respondent for payment of fee, expenses and legal charges, blaming the appealed judgment for mistake in application of law and corruption in citation and shortcomings in reasoning and breach of defense right and that is for the reasons mentioned in the writ of appeal and explanatory note, which states the following:
1. That the judgment ruled in the appealed judgment regarding expenses and wages does not suit to capability of the spender and status of beneficiary and economical situation.
2. That the appellant is afraid, in case of handing over the passport to the respondent, of deportation of two daughters out of the country without her knowledge, so she has no objection to deposit the passport into the custody of the court.
3.Appeal of the defendant under no: 388/2011 personal status under the writ submitted on 04/08/2011, requesting:
1. Formal acceptance of the appeal
2. Regarding the subject, cancellation of appealed judgment
(ii) Judgment Debtor present and heard as Cross Appeal filed by him.
(iii) Prayers granted in both Appeal.
Based on above reasons:
The court ruled:
Firstly; formal acceptance of both appeals Secondly; regarding the counter appeal, ruled to cancel the appealed judgment in which it was ruled to divorce and payment of expenses and fees and re-ruled to cancel the original case and obliged the respondent for payment expenses and AED.300 against legal charges. Thirdly; regarding original appeal, ruled to amend the appealed 6/9
77.CHS646_2019.doc judgment, in which it was ruled to oblige her (the Appellant) for handing over the passport of two minors; Kyra and Nyah to the respondent, to make her obliged to hand over the passport to the custody of the court, and the court obliged the respondent for appropriate expenses and AED.300 against legal charges.
6. The applicant/wife being aggrieved by the orders passed by the Court of Appeal for reversing the judgment and decree passed by the trial Court, had approached the Supreme Court (Court of Cassation, Dubai) in Appeal No. 147 of 2011. The Supreme Court by an order dated 5 June 2012 (page no.
58 to 63 of the Paper book) allowed the appeal confirming the orders which are passed by the trial Court. The order passed by the Supreme Court reads thus:
Judgment Debtor appeared and made submissions. And the respondent in defence in the court of first instance abided by his country law thinking that it is material fact and the follower must present it not the opponent (plaintiff), according to the article 1/2 of Federal Personal Law No: 28 for the year 2005. And he was not able to stand for the first time in front of the court of appeal to the foreign law and did not submit this case to this law, and as he cannot make any new requests before the court of appeal, so the court, whose judgment was challenged, must apply aforesaid federal personal status law on the case, and subsequently second the challenged judgment, and pass order to execute decision of two judges for separation between both parties by an irrevocable divorce because of harm without any compensation to be paid.7/9
77.CHS646_2019.doc Therefore:
The court ruled to overturn the contested judgment and obliged the contestant for paying the expenses with value AED.500 against lawyer's fee, and regarding both appeals No: 360 and 388 for the year 2011, personal status, the court ruled to support the appealed judgment in original case, and ruled to amend in it with obliging the plaintiff to hand over original passport of two daughters (Kyra and Nyah) to the defendant, and ruled again to oblige her to handover the passport to custody of the court, and ruled to make the respondent obliged to pay the expenses in each appeal and set-off against legal charges.
7. In the above circumstances, the applicant is before the Court in the present Execution proceedings to execute the above foreign judgment.
Although the respondent has appeared, no reply affidavit has been filed to this Chamber Summons. Hence, the averments as made by the applicant in the affidavit in support of the Chamber Summons as also the contentions in the documents which are placed on record of the execution application and chamber summons will be required to be taken as not disputed and/or admitted. As there is no opposition, the decree would now be required to be executed. It also needs to be observed that there is no material on record which would in any manner indicate that the foreign judgment in question does not satisfy the requirements of Sections 13 and 14 of the Code of Civil Procedure. Thus, the foreign judgment would be required to be accepted as conclusive.
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8. In the aforesaid circumstances, it will be in the interest of justice that the Chamber Summons is allowed. It is accordingly allowed in terms of prayer clauses (a), (b) and (c).
9. The Court Receiver, High Court, Mumbai is appointed as receiver in respect of the property of the respondent/judgment debtor, namely, flat no. 601, Cuzz Inns, 123, St. Cyril's Road, Near Turner Road.
10. It would be open to the judgment debtor to handover the physical possession of the flat to the Court Receiver within a period of two weeks from today. If the same is not handed over, the Court Receiver to take appropriate steps to take forcible possession of the flat in question including by breaking open the lock if any.
11. If necessary, the Court Receiver is permitted to take the help of police from the local police station. The Court Receiver to follow all the necessary procedure as also the inventory of the articles of the flat be made before the flat is sealed by the Court Receiver.
12. Disposed of in the above terms.
13. Parties to act on the authenticated copy of the order.
(G.S.KULKARNI, J.)
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Digitally
Vidya signed by
Vidya S. Amin
S. Date:
2020.02.07
Amin 11:15:59
+0530