Delhi High Court
Chanceteam Investments Ltd. vs R.D. Ramanath Company And Ors. on 1 March, 2004
Equivalent citations: 110(2004)DLT708, 2004(74)DRJ72, (2004)137PLR6
Author: Mukundakam Sharma
Bench: Mukundakam Sharma
JUDGMENT Mukundakam Sharma, J.
1.The decree-holder herein obtained a foreign judgment from the Supreme Court of Hong Kong on September 8, 1994. Pursuant thereto the decree-holder filed an execution petition in this Court for execution of the aforesaid foreign judgment as provided for under section 44-A and Order XXI Rule 11 of the Code of Civil Procedure. Along with the said execution petition a certified copy of the judgment dated August 12, 1994 was annexed as Annexure `A' wherein it was recorded as follows:-
"......, IT IS THIS DAY ADJUDGED that the Defendants do pay the Plaintiff the sum of US$109,556.37 or its equivalent in Hong Kong Dollars at the time of payment together with interest thereon at the rate of 9.5% per annum from the 8th September, 1992 to the date hereof and thereafter at judgment rate until payment in full and HK$1,810.00 as fixed costs."
The said petition was filed in this Court on May 28, 1997. On filing of the said application, this court by order dated July 7, 1997 directed for issuance of notice to the judgment debtors. The said notice was served on the judgment debtors and accordingly counsel for the judgment debtors entered appearance on the subsequent date, i.e., on October 20, 1997, and prayed for time. On August 28, 1998 it was recorded by this Court that reply was still not filed. The judgment debtors again sought time to file reply and the court allowed the prayer and ordered that the reply be filed within two weeks subject to payment of costs of Rs.2,000/-. Even in spite of the said order, neither the cost was paid nor the reply was filed. Even on the subsequent date and finally on January 11, 1999 last opportunity was granted to the judgment debtors to file reply. Still no reply was filed by the judgment debtors. This court passed an order on December 2, 1999 directing for issuance of warrant of attachment against the properties shown in the list annexed with the petition which was made returnable by February 18, 2000. On February 18, 2000, it was, however, recorded by this Court that despite repeated opportunities neither the reply was filed nor the cost imposed on May 22, 1998 was paid but even in spite of the said position, at request a last opportunity was given to file reply and pay costs making it clear that no further time would be granted. It was also observed that in case either the cost was not paid or reply was not filed within the time granted by the court, the matter would be proceeded with in the absence of reply. It was recorded that though the warrant of attachment which was issued was executed, but a report was received that the fixed deposit receipt numbers did not appear to be correct. Again a fresh warrant of attachment was issued attaching the properties of the fixed deposit receipts in terms of the said order. It was also recorded that under section 44-A of the Code of Civil Procedure, a decree passed by the superior courts of any reciprocating territory could be executed in India as if it had been passed by the District Court and that the `reciprocating territory' had been defined to mean any country or territory outside India which the Central Government might, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of that section. It was further observed that no such notification had been placed on record. Time was granted to place the same on record. Thereafter the warrants of attachment issued by this Court were also executed. The judgment debtors filed a reply/objection on September 20, 2000 taking up various pleas in the said objection contending inter alia that the foreign judgment is not conclusive and the same was passed ex parte and is a non-speaking ex parte judgment and is also not pronounced by a court of competent jurisdiction. Thereafter, another application registered as E.A. No. 233/2002 was filed by the judgment debtors on May 13, 2002 seeking for amendment of the reply which was filed by the judgment debtors on September 20, 2000. Some time around September 2002, the judgment debtors sent a cheque covering the amount of cost of Rs.2,000/- to the counsel for the decree-holder which was got encashed. The said application seeking for amendment was placed before this Court on September 19, 2002. The said application was considered by this Court and the same was dismissed on the grounds as recorded in the order dated September 19, 2002. As against the said order, the judgment debtors preferred an appeal before the Division Bench which was registered as EFA (OS) No. 12/2002. Subsequent to the filing of the appeal, an application was filed by the judgment debtors in the execution proceedings which is shown to have been filed under section 151 C.P.C. praying for condensation of delay in filing the original petition. The said application was placed on record on November 26, 2002. The aforesaid appeal which was filed before the Division Bench by the judgment debtors was disposed of by the Division Bench with the following observations:-
" xx xx xx We find that though the Executing Court had rejected appellant's plea for amendment on the ground that its filing of the reply was unauthorised, the court had failed to deal with this and the condensation application and to hold so. In our view the court ought to have rejected the condensation application and refused to take appellant's reply on record before disallowing its amendment. Therefore, what required to be done first was to decide the condensation application and the fate of reply filed by appellant which was a prerequisite for deciding whether the proposed amendment could be allowed to it.
This appeal is accordingly disposed of with request to the Executing Court to consider appellant's condensation of delay application (I.A. No. 526/2002) and pass appropriate orders on this and whether appellant's reply could be taken on record. In case this application is allowed appellant's amendment plea shall also be considered and disposed off consequently. Nothing said in the impugned order shall have any bearing on the merit of appellant's application."
3. In terms of the aforesaid order passed by the Division Bench, the matter was again listed before this Court in terms of which I heard the learned counsel appearing for the parties and perused the relevant documents to which my specific attention was drawn by the counsel appearing for the parties. The facts leading to the filing of the aforesaid execution petition in this Court and the orders passed by this Court in the execution petition have been referred to in the foregoing paragraphs. The order sheets of the court clearly depict that repeated opportunities were given to the judgment debtors by the court to enable the judgment debtors to file objection/reply. However, in spite of such accommodation, no reply was filed and, therefore, an order of attachment came to be issued by this Court by order dated December 2, 1999 followed by orders dated February 18, 2000. The reply/objection was filed thereafter on September 20, 2000 which was followed by an application seeking for amendment of the said reply/objection which was filed on September 13, 2002, and an application for condensation of delay in filing the original application came to be filed only on November 26, 2002. In the said application a prayer for condensation of delay is made on the ground that the delay in filing the said objection was caused on account of the callousness of the advocate who had been representing the judgment debtors. It was also stated in paragraph 7 of the said application that the delay had been caused on account of advocate and that it was well settled that the parties should not suffer on account of the lapse/fault of the advocate.
4. I have carefully perused the averments made in the said application also. Counsel appearing for the judgment debtors, during the course of his arguments, relied upon the decision of the Supreme Court in State of West Bengal v. The Administrator, Howrah Municipality and others, , wherein the Supreme Court has held that if a party had acted in a particular manner on a wrong advice given by his legal adviser, he could not be held guilty of negligence so as to disentitle the party to plead sufficient cause under section 5 of the Limitation Act. Interestingly, the application which is filed by the judgment debtors praying for condensation of delay is not filed under section 5 of the Limitation Act but is filed under section 151 of the Code of Civil Procedure. However, such an application filed praying for condensation of delay may not be dismissed on the ground that it is not filed under section 5 of the Limitation Act but under section 151 of the Code of Civil Procedure, as the said application could definitely be filed by the judgment debtors under section 5 of the Limitation Act. Quoting a wrong section in the application would not create a bar and stand on the way in considering the said application under the appropriate provision, if there be any.
5. It is, however, apparent from the record that the entire blame for not filing the reply/objection to the execution petition is put on the counsel representing the judgment debtors contending that the same could not be filed due to the callousness of the advocate and that the delay in filing the objection was caused on account of the lapse/fault of the advocate. It is not specifically stated in the said application as to whether or not any instruction was given by the judgment debtors to the advocate for filing such reply and if so, what was the nature of such instruction. No statement is made as to why the judgment debtors themselves took no steps in filing the objection as expeditiously as possible and left everything to the advocate. Only on the basis of a bare general and sweeping statement made against the counsel without any evidence on record to show that any complaint was made by the judgment debtors before the Bar Council against the conduct of the advocate, in my considered opinion, such pleas as raised cannot be accepted as sufficient ground for condensation of delay. In this connection reference may be made to another decision of this Court in Haro Singh v. Ajay Kumar Chawla and others, . In the aforesaid decision, the learned Single Judge followed the earlier view of Hon'ble Mr. Justice Yogeshwar Dayal in Babu Ram v. Devinder Mohan Kaura and others, AIR 1981 Delhi 14, and of the other High Courts which is to the effect that the counsel must disclose the circumstances in which incorrect advice was given and it is not sufficient to make a perfunctory and general statement that the wrong advice was given bona fide, and that no complaint has been filed against the advocate who purportedly gave the wrong advice and, therefore, no sufficient cause has been shown for condoning the delay. The instant application which was filed by the judgment debtors also contains only a perfunctory and general statement that delay in filing the objection was on account of callousness of the advocate and that the party should not suffer on account of lapse and fault of the advocate. What is the nature of the lapse and fault of the advocate, or the callousness of the advocate is not spelt out in the application, nor any disclosure is made in the application, or in any other pleading that any complaint has been made by the judgment debtors to the Bar Council against the aforesaid conduct of the advocate. The aforesaid decisions have been rendered by coordinate benches as that of mine. In my considered opinion, no sufficient cause is made out, or shown by the judgment debtors for condensation of the delay.
6. Even otherwise it is disclosed from the records that the aforesaid application came to be filed in this Court only on November 26, 2002, whereas the objection/reply was filed by the judgment debtors on September 20, 2000 and the warrants of attachment was issued by this Court on February 18, 2000 after affording several opportunities to the judgment debtors to file their reply. Even in spite of the same, no such reply was filed. In view of the aforesaid position, a contention is raised by the decree-holder that after issuance of the warrants of attachment any subsequent objection filed by the judgment debtors would be barred by the principles of constructive res judicata. Counsel appearing for the judgment debtors, however, submitted that the aforesaid judgment which is passed by the court at Hong Kong was a judgment which was passed without any jurisdiction to entertain the suit. It was submitted that the said judgment has been rendered by a court of incompetent jurisdiction and that the judgment is not rendered on the merits of the case and that the same has been obtained by suppression of facts and thereby practicing fraud on the court. The aforesaid objections which are raised in respect of legality and validity of the foreign judgment would be required to be examined provided it is held by this Court that the said objections which are contained in the reply/objection which is filed and also in the application seeking for amendment of the said objection/reply could be considered by this Court. Order XXI Rule 23, sub-rule (1) of C.P.C. provides that where the person to whom notice is issued under rule 22 does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed. In sub-rule (2) of rule 23 it is provided that where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order, as it thinks fit. In the present case, even in spite of service of notice the judgment debtors failed to raise any objection which he might and ought to have raised at that stage. Even in spite of several opportunities granted to the said judgment debtors, no reply was forthcoming from the judgment debtors. Consequently, the court proceeded to get the judgment and decree executed and passed an order in that regard directing for attachment of the properties. It is, of course, submitted by the counsel appearing for the judgment debtors that this Court while issuing order of attachment of the properties nowhere stated that the decree is being executed. However, it is also to be borne in mind that ordinarily the court does not pass an express order to the effect that the decree be executed, and the court generally issues a warrants of attachment in execution of the decree. Therefore, in my considered opinion, such an order of directing for issuance of attachment of the properties of the decree-holder impliedly contained the order for execution of the decree also under Rule 23. As no objection was filed by the judgment debtors as against the execution of the decree before the said order, the objection filed subsequent thereto must be deemed to be barred by the principle of constructive res judicata. It is by now well settled that the principle of res judicata applies to an execution proceeding also. By virtue of insertion of Explanation VII to section 11 under the 1976 Amendment Act of the Civil Procedure Code, the principle of res judicata also applies to execution in its full amplitude. There are several decisions of the various High Courts laying down the proposition that if the judgment debtor does not appear or does not file any reply/objection as against the notice issued for showing cause and the court proceeds to pass an order that the decree be executed, the said order involves an implied adjudication that a decree-holder has a right to execute the decree and that the judgment debtor is liable to satisfy the decree and the execution application is not barred by limitation. In this connection, reference may be made to the decision of the Orissa High Court in Rajkishore Mohanty and anothr v. Kangali Moharana and others, , which is a Full Bench decision and also to the decision of the Andhra Pradesh High Court in Sainath Reddy and others v. G. Narayana Reddy, . The same position is also reiterated by the Patna High Court in Ramrup Rai v. Mst. Gheodhari Kuer and others, , and by the Bombay High Court in Union Bank of India v. Byram Pestonji Gariwala and others, . In Sainath Reddy (supra) it was held by the Division Bench of the Andhra Pradesh High Court that where in an execution petition the judgment debtor did not appear even after service of notice under Order XXI Rule 22, the court passed an order under Order XXI Rule 23(1) directing to proceed for execution of the decree by attachment of the properties of the judgment debtor, the order became final and amounted to a decree and as no appeal was filed by the judgment debtor against the said order it clearly operated as res judicata, and, therefore, it was not open to the judgment debtor to raise an objection as to limitation at a later stage of the said proceeding by filing an independent application. While coming to the aforesaid conclusion the Division Bench of the Andhra Pradesh High Court referred to and relied upon the decision of the Madras High Court in Venkataranga v. Sithamma, AIR 1941 Madras 440, and to the decision of the Gujarat High Court in Ganchi Laxmichand v. Tulsidas, . In Ramrup Rai (supra) the Division Bench of the Patna High Court held that if in spite of service of notice the judgment debtor fails to raise a objection which he might and ought to have raised at that stage, the court in passing the order for execution of the decree must be deemed to have decided the objection against him and that ordinarily the court does not pass an express order to the effect that the decree be executed as that order is implied in the order for issue of warrant of attachment. While coming to the aforesaid conclusion, the Division Bench of the Patna High Court relied upon and followed the earlier decision of the Full Bench of the same court reported in Baijnath Prasad Sah v. Ramphal Sahni and another, (FB). In my considered opinion the aforesaid ratio of the decisions of the various High Courts laying down the proposition that where in an execution petition in spite of service of notice the judgment debtor fails to raise an objection which he might and ought to have been raised at that stage, the court in passing the order for execution of the decree must be deemed to have decided the objection against him and, therefore, any subsequent objection raised by the judgment debtor shall be treated as barred by the principle of constructive res judicata. In the present case similar is the position. The order of attachment was issued and, therefore, all subsequent pleas that are raised by the judgment debtors as against the legality and validity of the foreign judgment and decree are held to be barred by the principle of constructive res judicata.
7. It was, of course, submitted by the counsel appearing for the judgment debtors that the aforesaid order which was issued for attachment of the properties should not be treated as an action taken for execution of the decree inasmuch as time was again granted by the court to the judgment debtors to file such objections even on payment of cost which is also paid and accepted by the decree-holder. However, the said contention is misplaced in view of the fact that at that stage the court issued the warrant of attachment and did not have the occasion to consider and decide the effect of the order passed by the court directing for attachment of the properties which was passed in execution of the decree, but time was only granted to the judgment debtors at the request of their counsel. Therefore, merely because an order passed by this Court extending the time to file the reply/objection on condition of payment of cost in late filing of the same and acceptance of the cost by the counsel for the decree-holder after expiry of four years from the date of imposition of cost would not amount to waiver and acquiescence. If by virtue of operation of law a certain position has emerged the same cannot be whittled down and negated because time was granted to the judgment debtors at the request of their counsel and also because a cheque sent by the counsel for the judgment debtors to the counsel appearing for the decree-holder was accepted and encashed. The cost also came to be paid after four years from the date of passing the order of attachment. Therefore, what becomes operative by operation of law would alone govern. The objection filed by the judgment debtors and the application filed for condensation of delay in filing the same are, therefore, held to be without merit. The pleas which are raised by the judgment debtors as against the legality and validity of the foreign judgment and decree consequently require no consideration of this Court as such pleas are held to be barred by the principle of constructive res judicata. Therefore, the application filed by the judgment debtors under section 151 of the Code of Civil Procedure praying for condensation of delay, and the application under Order VI Rule 17 C.P.C. praying for amendment of the objections, as also the objection/reply filed by the judgment debtors are dismissed being devoid of merit.
8. Be renotified on 12th April, 2004 for further orders.