Bombay High Court
Janardhan Mohandas Rajan Pillai vs Madhubhai Z.Patel & Ors on 30 March, 2010
Author: D.K.Deshmukh
Bench: D.K.Deshmukh, V.R.Kingaonkar
1
IN THE HIGH COURT JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.1121 OF 2003
IN
EXECUTION APPLICATION NO.204 OF 1997
IN
NOTICE NO.1773 OF 1997
ON APPEAL FROM HIGH COURT OF JUSTICE QUEENS BENCH
DIVISION LONDON
IN COURT OF APPEAL NO.2065 OF 1995
1.Janardhan Mohandas Rajan Pillai
deceased through his heirs. & Anr.
ig ...Appellants.
Vs.
1.Madhubhai Z.Patel & ors. ...Respondents.
---
Mr.J.P.Sen i/b. Mr.G.R.Mehta, for Appellants.
Dr.V.V.Tulzapurkar, Sr.Advocate with Sanjay Kothari &
Ms.S.N.Vakil & Mr.H.N.Vakil i/b. M/s.Mulla & Mulla &
CB &C, for Respondents.
AND
APPEAL NO.1122 OF 2003
IN
EXECUTION APPLICATION NO.204 OF 1997
IN
NOTICE NO.1775 OF 1997
ON APPEAL FROM HIGH COURT OF JUSTICE QUEENS BENCH
DIVISION LONDON
IN COURT OF APPEAL NO.2065 OF 1995
1.Janardhan Mohandas Rajan Pillai
deceased through his heirs. & Anr. ...Appellants.
Vs.
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2
1.Madhubhai Z.Patel & ors. ...Respondents.
---
Mr.Virag Tulzapurkar, Sr.Advocate i/b. Mr.G.R.Mehta,
for Appellant.
Dr.V.V.Tulzapurkar, Sr.Advocate with Sanjay Kothari &
Ms.S.N.Vakil & Mr.H.N.Vakil i/b. M/s.Mulla & Mulla &
CB &C, for Respondents.
AND
APPEAL NO.1123 OF 2003
IN
EXECUTION APPLICATION NO.205 OF 1997
ig IN
NOTICE NO.1772 OF 1997
ON APPEAL FROM HIGH COURT OF JUSTICE QUEENS BENCH
DIVISION LONDON
IN COURT OF APPEAL NO.2065 OF 1995
1.Janardhan Mohandas Rajan Pillai
deceased through his heirs. & Anr. ...Appellants.
Vs.
1.Madhubhai Z.Patel & ors. ...Respondents.
---
Mr.J.P.Sen i/b. Mr.G.R.Mehta, for Appellants.
Dr.V.V.Tulzapurkar, Sr.Advocate with Sanjay Kothari &
Ms.S.N.Vakil & Mr.H.N.Vakil i/b. M/s.Mulla & Mulla &
CB &C, for Respondents.
AND
APPEAL NO.1124 OF 2003
IN
EXECUTION APPLICATION NO.204 OF 1997
IN
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3
NOTICE NO.1774 OF 1997
ON APPEAL FROM HIGH COURT OF JUSTICE QUEENS BENCH
DIVISION LONDON
IN COURT OF APPEAL NO.2065 OF 1995
1.Janardhan Mohandas Rajan Pillai
deceased through his heirs. & Anr. ...Appellants.
Vs.
1.Madhubhai Z.Patel & ors. ...Respondents.
---
Mr.J.P.Sen i/b. Mr.G.R.Mehta, for Appellants.
Dr.V.V.Tulzapurkar, Sr.Advocate with Sanjay Kothari &
Ms.S.N.Vakil & Mr.H.N.Vakil i/b. M/s.Mulla & Mulla &
CB &C, for Respondents.
---
CORAM: D.K.DESHMUKH &
V.R.KINGAONKAR,JJ.
DATED: 30th MARCH, 2010
JUDGMENT:(PER D.K.DESHMUKH, J.)
1. By these appeals, the appellants challenge a Common order passed by the learned Single Judge of this Court dated 8.8.2003 in Execution Application nos.205 of 1997 and 204 of 1997. The learned Single Judge passed that order in Execution applications, numbers of which are mentioned above, filed by the defendants. Execution was sought of an order passed ::: Downloaded on - 09/06/2013 15:46:37 ::: 4 in a suit which was filed before the English Court.
The order was for payment of costs by the plaintiffs to the defendants. The Plaintiffs i.e. present appellant no.2 and her husband Mr.Janardhan Mohandas Rajan Pillai who was plaintiff no.1 filed suit for damages in the English Court in the year 1993 alleging that an article published in a magazine was defamatory. The defendant no.3 was the publisher and defendant no.4 was the distributor of the Magazine.
2. On 13.8.1993, the defendant no.4 made application before the Master Queen s Bench Division for stay of the suit on the ground that the English Court had no jurisdiction to try the suit as the magazine was published from India. This application of defendant no.4 was dismissed by the Master. An appeal was preferred against that order before the learned Chamber Judge. That appeal was allowed by order dated 9th/10th June,1994 and it was held that the English Court is not the proper forum for trial of the suit and the suit was ordered to be stayed.
An appeal was filed against the order of the Chamber ::: Downloaded on - 09/06/2013 15:46:37 ::: 5 Judge. An application was made by the defendant no.4 before the Registrar of the Court of Appeal for security of costs to be furnished by the plaintiffs.
An application to the same effect i.e. for stay of the proceedings was made by defendant no.3 before the Master. In view of the order that was passed in the Appeal filed by defendant no.4, the suit against the defendant no.3 was also stayed. Costs was reserved to the Court of Appeal. Against that order, an appeal was preferred by the plaintiffs. In the appeal proceedings, an application for security of costs was made. The plaintiffs deposited the costs for defendant no.4 and not for defendant no.3. The Court of appeal dismissed both the appeals and directed that costs of appeal be paid to defendant nos.3 and
4. The defendant nos. 3 and 4 were awarded costs of the proceedings. Proceedings were taken out for computation of the costs and the certificates were issued in favour of defendant nos.3 and 4. They filed execution application for executing those certificates. The execution was opposed by the original plaintiff no.2 in her own right as also as ::: Downloaded on - 09/06/2013 15:46:37 ::: 6 legal representative of original plaintiff no.1. The other legal representatives of the plaintiff no.1 were also joined as parties. It was the case of the judgment debtors before the learned Single Judge that the certificates of costs cannot be termed as decrees because costs are not awarded at final adjudication. In other words, according to the judgment debtors, it is not a decree. It was also their contention that because the order, computation of costs has been made without issuing any notice to the judgment debtors in view of the provisions of Section 13 of the Civil Procedure Code that decree cannot be executed. The learned Counsel appearing for plaintiffs relied on several judgments of various High Courts to contend that the order passed by the English Court staying the proceedings in the suit filed by the plaintiffs cannot be termed as decree and the order for payment of costs made in those proceedings can also not be treated as decree. On the other hand, on behalf of the decreeholders it was contended, relying on the provisions of Second Explanation to Section 44A of the C.P.C., that even ::: Downloaded on - 09/06/2013 15:46:37 ::: 7 assuming that an order staying the proceedings in the suit is not a final adjudication, then also that order amounts to a judgment, and therefore the proceedings under Section 44A of the C.P.C. can be taken out. The learned Counsel for decreeholders, after taking us through the record, submitted that the certificates issued by the English Court show that the notice was duly issued to both the plaintiffs and it was served on both the plaintiffs.
3. Now in order to decide the controversy that falls for consideration, it is necessary to refer to the provisions of Section 44A of the C.P.C. It reads as under:-
44-A. Execution of decrees passed by Courts in reciprocating territory.- (1) Where a certified copy of a decree of any of the superior Courts 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.::: Downloaded on - 09/06/2013 15:46:37 ::: 8
(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.
ig (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
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9
purpose 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 judgment 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 judgment.]] Perusal of the above provisions of Section 44A of the C.P.C. shows that where a certified copy of a decree of any of the in Superior Courts of any reciprocating territory is filed in a District Court, the decree is capable of being executed treating it as a decree passed by the District Court. The term decree is defined by Explanation II, to mean any decree or judgment of such Court under which a sum of money is ::: Downloaded on - 09/06/2013 15:46:37 ::: 10 payable. The term decree is defined by Section 2(2) of the C.P.C. and still the Parliament chose again to define the term decree by Explanation II to Section 44A. The intention, therefore, is clear that the Parliament wanted to either expand or reduce the scope of the term decree found in Section 2(2) of the Code. Section 2(2) of the C.P.C. reads as under:-
2. Definitions- In this Act, unless there is anything repugnant in the subject or context-
(2) 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 and the determination of any question within section 44, but shall not include-
(a) any adjudication from ::: Downloaded on - 09/06/2013 15:46:37 ::: 11 which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation:- A decree is
preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
The term judgment is defined by Section 2(9) of the C.P.C which reads thus;
2(9) judgment means the statement given by the Judge on the grounds of a decree or order;
A comparison of the two above quoted definitions shows that Judgment is a wider concept than decree . Perusal of the Explanation II in Section 44A of the Code shows that the legislature intentionally has included even judgment within the ::: Downloaded on - 09/06/2013 15:46:37 ::: 12 meaning of the term decree for the purpose of Section 44A. The intention was to expand or to enlarge the scope of term decree for the purposes of Section 44A of the Code. Therefore, an order which may not amount to a decree, but may amount to a judgment would be a decree for the purpose of Section 44A of the Code. The term order is defined by Section 2(14) of C.P.C. which reads as under:-
2. Definitions:-
(14) order means the formal
expression of any decision of a
Civil Court which is not a decree;
Perusal of definition of term decree found in
Section 2(2), definition of term judgment found in
section 2(9) and definition of term order found in
Section 2(14), makes it clear that a judgment may
amount to a decree or a judgment may amount to an
order . To our mind, it is clear that the intention
of the legislature behind incorporating Explanation
II was to permit execution under Section 44A of the ::: Downloaded on - 09/06/2013 15:46:37 ::: 13 Code of such orders which may not amount to decrees but which amount to orders.
4. So far as the present case is concerned, by the order, assuming it to be not a final order, a question whether the English Court can try the proceedings has been finally decided between the parties. Therefore, to our mind, it is clear that considering the law that has been laid down by the Supreme Court by its judgment in the case Shah Babulal Khimji Vs. Jayaben D.Kania & Anr., AIR 1981 SC 1786 in relation to the meaning of the term judgment appearing in Clause 15 of the Letters Patent and the term order appearing in Section 104 of C.P.C., an order holding that the English Court does not have jurisdiction to try the suit, will definitely amount to a judgment, and therefore, it will be a decree within the meaning of Section 44A of C.P.C. The procedure analogous to the procedure that has been followed by the English Court, under the Civil Procedure Code is the procedure contemplated by Order VII of C.P.C, where the Court finds that it ::: Downloaded on - 09/06/2013 15:46:37 ::: 14 does not have jurisdiction to try the suit, it can return the plaint for presentation to the proper court and that order has been made, specifically, appealable under Order XLIII of C.P.C. We are referring to this provision because the Supreme Court by its judgment in the case Shah Babulal Khimji referred to above, has equated judgment referred to in Clause 15 of Letters Patent to order against which appeal lies under Section 104 and Order XLIII. In our opinion, thus, the proceedings in which the order for payment of cost was made in the present case, would amount to a decree within the meaning of Section 44A of CPC.
5. So far as the contention that the order of computation of costs has been made without notice to the plaintiff no.2 and other legal representatives of plaintiff no.1 is concerned, in our opinion, it has no substance. The decreeholders relied on the certificates issued by the Taxing Master wherein it is specifically stated that the notice of hearing was given to the plaintiffs at their addresses at Bombay ::: Downloaded on - 09/06/2013 15:46:37 ::: 15 as also at Singapore. In the Affidavit which is filed in this Court, the plaintiff no.2 has stated that after April,1995 she was not residing at Singapore.
But she does not make any such statement about her Bombay address. It is also not claimed that her address at Bombay shown in the proceeding is incorrect address or she never resided there. She nowhere said that at the relevant time, she was not residing at the given address. What is further to be seen here is that perusal of the record shows that the plaintiff no.2 has made contradictory statements about her places of residents at the relevant time.
In our opinion, in view of the certificates of the Taxing Master produced, the burden was entirely on the appellants to show that they were not duly served. In our opinion, that burden has not been discharged by the appellants.
6. Taking overall view of the matter therefore, we do not find any reason to take a different view than the view that has been taken by the learned Single Judge. The appeals therefore, fail and are ::: Downloaded on - 09/06/2013 15:46:37 ::: 16 rejected. However, we find substance in the submission of the appellants that in no case the decree for costs can be executed against the other legal representatives of the deceased plaintiff no.1 than the widow. It is obvious from the record that when the Taxing Master issued the certificates, he was not even aware about the death of plaintiff no.1.
In our opinion, therefore, it will be appropriate to direct that the certificates for costs would be executable against the original plaintiff no.2 in her capacity as plaintiff no.2 as also as a legal representative of deceased plaintiff no.1 to the extent she has inherited his estate. The order is modified accordingly. Appeals are disposed of.
At this stage, a request is made for stay of the execution proceedings. Firstly, the execution is of a money decree and therefore, there is no question of any irreparable injury being caused if the decree is executed. Secondly, we have been informed that an interim order was made for grant of stay of execution on the appellants furnishing bank guarantee but they ::: Downloaded on - 09/06/2013 15:46:37 ::: 17 did not furnish bank guarantee. It is also a common ground ground that the appellants have not complied with the order made by the learned Single Judge in execution proceedings. In our opinion, therefore, it will not be appropriate to grant any interim stay.
The request is rejected. In view of this order, Notice of Motion No.3586 of 2009 in Appeal no.1123 of 2003 and Notice of Motion no.3587 of 2009 in Appeal no.1124 of 2003 are also disposed of.
(D.K.DESHMUKH,J.) (V.R.KINGAONKAR,J.) ...
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