Case Note & Summary
The matter arose from a Chamber Summons in execution proceedings before the Bombay High Court, seeking leave to execute a foreign judgment and costs certificates obtained in the United Kingdom. The original proceedings in the UK High Court, Queen's Bench Division (Case No.1990 K 528) were initiated by Arvind Jeram Kotecha against Prabhudas Damodar Kotecha for release of a fund and damages. By a consent order dated 25 February 1993, the fund was released to Arvind with damages to be assessed. On 22 January 1999, the UK court assessed damages as nil and directed that judgment be entered for the defendant with costs, to be taxed if not agreed. Subsequently, the Costs Officer issued a final costs certificate on 11 November 2004 for £57,175.25 plus interest, and an additional certificate on 17 January 2005. Arvind did not appeal, and the amounts remained unsatisfied. Prabhudas, as decree holder, filed Execution Application No.37 of 2005 in the Bombay High Court, invoking the reciprocal arrangement between India and the UK for enforcement of foreign decrees under Section 44A of the Code of Civil Procedure, 1908. The Chamber Summons (No.1045 of 2005) sought leave to execute the UK judgment and costs certificates, and also prayed for dispensation of notice under Order XXI Rule 22(1)(b) CPC, citing apprehension that Arvind might create third‑party interests or conceal properties. Arvind opposed the application, contending that the costs order was not a decree within the meaning of Section 44A, that it was not rendered by a superior court, and that compliance with Order XXI Rule 22 was mandatory and could not be waived. The decree holder argued that the order was a composite decree on merits, that UK is a reciprocating territory, and that technicalities should not defeat justice. The court heard extensive submissions on the nature of the order, applicability of Section 44A, and the mandatory character of notice under Order XXI Rule 22. The judgment text, as provided, ends abruptly at paragraph 23 without recording the final decision or operative directions.
Issue of Consideration
Whether an order for costs by a UK court constitutes a decree under Section 44A CPC and is executable in India; whether notice under Order XXI Rule 22 CPC is mandatory and can be dispensed with.
Case Details
2006 LawText (BOM) (06) 27
Chamber Summons No.1045 of 2005 in Execution Application No.37 of 2005 in Case No.1990 K 528
V.V. Tulzapurkar, Munshi, D.R. Zaiwala, J.J. Thakkar
Prabhudas Damodar Kotecha
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Nature of Litigation
Execution proceedings to enforce a foreign judgment (UK) for costs under Section 44A of the Code of Civil Procedure, 1908.
Remedy Sought
Prabhudas Damodar Kotecha, as decree holder, sought leave to execute the UK judgment and costs certificates against Arvind Jeram Kotecha in India, and dispensation of notice under Order XXI Rule 22 CPC.
Filing Reason
The UK decree remained unsatisfied and the judgment debtor resided in India with properties within the Bombay High Court's jurisdiction.
Previous Decisions
High Court of Justice, Queen's Bench Division, UK, in Case No.1990 K 528, passed consent order on 25.2.1993 releasing fund to plaintiff, later assessed damages as nil and awarded costs to defendant, resulting in final costs certificate dated 11.11.2004 and additional certificate dated 17.1.2005; no appeal filed.
Issues
Whether the UK costs order is a 'decree' under Section 44A CPC and executable in India as a decree of a superior court from a reciprocating territory.
Whether notice to the judgment debtor under Order XXI Rule 22 CPC is mandatory and can be dispensed with in the present circumstances.
Submissions/Arguments
Decree holder submitted that the UK order adjudicated the claim on merits and is a composite decree, quantification of costs by the Costs Officer is part of the decree, Section 44A CPC applies as UK is a reciprocating territory and the order is from a superior court; notice under Order XXI Rule 22 can be dispensed with; technicalities should not defeat justice.
Judgment debtor argued that the costs award is not a decree under Section 44A, it is not passed by a superior court; compliance with Order XXI Rule 22 is mandatory and cannot be waived; no urgency shown; the decree holder must follow due process.
Judgment Excerpts
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 of the sums due ... (b) That notice under Order XXI, Rule 22(1)(b) of the Civil Procedure Code be dispensed with.
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.
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.
Procedural History
Original Case No.1990 K 528 filed in UK High Court; consent order on 25.2.1993; damages assessed as nil and costs awarded to defendant on 22.1.1999; final costs certificate issued on 11.11.2004; additional certificate on 17.1.2005; Execution Application No.37 of 2005 filed in Bombay High Court; Chamber Summons No.1045 of 2005 taken out in June 2005; served on judgment debtor in September 2005; judgment reserved on 19.04.2006 and pronounced on 05.06.2006.
Acts & Sections
- Code of Civil Procedure, 1908: Section 44A, Order XXI Rule 22
