Neeta Sawant WP 14283 of 2023.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 14283 OF 2023

Elis Jane Quinlan and Ors. …..PETITIONERS

: VERSUS :

Naveen Kumar Seth,

Director of Candica Industries ….RESPONDENT

Mr. Shrey Fatterpekar with Mr. Aakash Shinaa i/b M/s. Juris Corp for

Petitioners.

Mr. Rohan Kelkar with Ms. Smruti Kanade i/b M/s. Negandhi Shah &

Himayatullah for Respondent.

CORAM : SANDEEP V. MARNE, J.

JUDG. RESD. ON: 2 FEBRUARY 2026.

JUDG. PRON. ON: 10 FEBRUARY 2026

JUDGMENT:

1) Rule. Rule made returnable forthwith. Since the pleadings in

the Petition are complete, the parties have requested for �nal hearing of

the Petition. Accordingly, with the consent of the learned counsel

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appearing for the parties, the Petition is taken up for hearing and �nal

disposal.

2) By this Petition, Petitioners have challenged Order dated 3

rd

November 2022 passed by the District Judge, Pune allowing application at

Exhibit 20 �led by the Respondent-Judgment Debtor and framing issues

with further liberty to the parties to lead evidence thereon.

3) Petitioner is a foreign Decree Holder and has �led execution

proceedings for execution of the decree passed by Fujairah Civil Court,

United Arab Emirates (UAE). According to the Petitioner, Fujairah Civil

Court, UAE is noti�ed by Government of India as reciprocating territory

within the meaning of Section 44A of the Code of Civil Procedure, 1908

(Code) and that therefore the decree can be executed as if it is a domestic

decree under Section 47 of the Code. Petitioners are accordingly

aggrieved by the Court’s directions for framing of issues and for liberty to

the parties to lead evidence.

4) Facts of the case as pleaded in the Petition are that Candica

Industries FZC (Company) is an incorporated entity in Fujairah Free

Zone, UAE, and engaged in the business of manufacturing and trading in

the confectionery under a trade license issued from the Free Trade Zone

in the Emirate of Fujairah, UAE. The Company had taken readymade

infrastructure and building in the year 2003 along with open land from

Fujairah Free Zone Authority on lease for a period of �ve years in order to

enable it to utilise the funds on the equipment and machinery rather than

constructing the facilities. According to the Petitioner, the Company

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incurred substantial pre-operative expenses on account of delay and

incurred operational losses. In view thereof, the directors of the Company

decided to sell their stake in the Company at intrinsic value to the

Respondent and requested him to run the business. The reserve price of

AED 6.5 million was �xed for taking over of assets of the company by the

Respondent. Petitioner No.1 was looking for opportunity to invest in the

food processing business of the Company and offered to buy ou t

Company’s business along with certain speci�ed assets and liabilities of

the company at the price of AED 41,72,362/-, which was accepted by the

Respondent. Pursuant to the agreement between the parties , a

Memorandum of Understanding (MOU) dated 19 July 2007 was executed

between the Petitioners, Company and the Respondent. According to the

Petitioners, it has complied with the obligations under the terms and

conditions of the MOU and that the Respondent received sal e

consideration of AED 4,172,362/-. Petitioners claim that additional

amount of AED 100,000/- was paid to the Company towards loan in

respect of the leased warehouse, land and Company’s assets. According to

the Petitioners, Respondent failed to ful�ll obligations under the MOU,

leading to losses to the Petitioners. Petitioners claim that Respondent

went absconding in the year 2009.

5) Petitioners �led Suit No.241 of 2011 before the Fujairah Civil

Court in April 2011 inter alia against the Company and the Respondent in

accordance with Article 6 of the MOU. According to the Petitioners, all

attempts to serve the Respondent with suit summons failed as his

representative in UAE refused to accept service of summons. That notice

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to attend Fujairah Civil Court was also pasted on Respondent's Company

address in UAE. However, Respondent failed and neglected to appear

before the Fujairah Court. Fujairah Civil Court proceeded to pass a default

judgement as if it was issued in the presence of all parties. On 27

th

January

2013, the Court held Respondent solely liable to pay amount of AED

3,182,357/- to the Petitioners.

6) Since Respondent did not have any assets in UAE, the decree

could not be executed there. Accordingly, at the request of the

Petitioners, Ministry of Justice, Government of UAE, issued certi�cate

dated 26 November 2015 under the provisions of UAE Civil Code

certifying that the decree remained completely unsatis�ed due to non-

payment by the Respondent. The certi�cate was issued for compliance

under the Section 44A (2) of the Code.

7) Petitioners �led Execution Application No. 807 of 2016 (�rst

Execution Application) in India under Section 44A of the Code.

Apparently at that time, UAE was not a reciprocating territory. The First

Execution Application was served on the Respondent on 1 March 2018.

Respondent claims having acquired knowledge about Fujairah Civil Court

and the Decree for the �rst time on 1 March 2018. The First Execution

Application was however dismissed by the Executing Court on 17 January

2019 since UAE was not then a reciprocating territory.

8) Petitioners �led suit on the foreign decree on 28 February

2019, which was apparently dismissed on 19 October 2019 for non-

removal of of�ce objections. On 17 January 2020, Government of India

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noti�ed UAE as a reciprocating territory. Petitioners thereafter �led fresh

Execution Application bearing Darkhast No. 2554 of 2020 for execution of

decree of Fujairah Civil Court. Respondent appeared in the execution

proceedings and �led application at Exhibit 10 seeking dismissal of

execution proceedings under Section 13 read with Section 47 of the Code.

Respondent also �led Application at Exhibit 20 for framing of issues and

for leading of evidence. Petitioner �led replies to both the applications

opposing the same. By order dated 3 November 2022, the learned District

Judge has allowed the Application at Exhibit 20 and has framed issues for

adjudication under Section 13 read with Sections 44A and 47 of the Code

and has granted liberty to the parties to lead evidence on the issues so

framed. Petitioner is aggrieved by the order dated 3 November 2022 and

has initially �led Civil Revision Application No. 198 of 2023, which was

permitted to be converted into a Writ Petition by order dated 6 November

2023. Respondent has appeared in the Petition and �led af�davit in reply

opposing the same. Petitioners have �led af�davit in rejoinder. Since

pleadings in the Petition are complete, the same is taken up for �nal

hearing.

9) Mr. Fatterpekar, the learned counsel for the Petitioners

submits that the Executing Court has erred in framing issues and in

permitting parties to lead evidence in Execution Application �led under

Section 44A of the Code. That Section 44A creates a necessary and

important distinction between the decrees passed by the foreign court in

a reciprocating territory and a non-reciprocating territory. That in respect

of the decree passed by the foreign court in reciprocating territory, there

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is no need to �le suit based on foreign decree and the foreign decree itself

can be executed as if it is a domestic decree. That if issues are framed and

evidence is permitted to be led, this important distinction between the

decree passed by the foreign court in reciprocating territory and non-

reciprocating territory would get wiped out, which is not the legislative

intent. That the legislative intent is to ensure swift execution of decree

passed by the foreign court in reciprocating territory. He relies on

judgment of this Court in Marine Geotechnics LLC vs. Coastal Marine

Construction and Engineering Ltd

1

. That the impugned order passed by

the Executing Court is in the teeth of the legislative intent and results in a

situation where there will be delay in execution of the decree. He relies on

judgment of the Apex Court in Alcon Electronics Private Limited vs.

Celem S.A. of FOS 34320 Roujan, France and Anr.

2

and of this Court in

Arvind Jeram Kotecha vs Prabhudas Damodar Kotecha

3

in support of his

contention that the objections raised by the judgment debtor under

Section 13 must be decided merely on the basis of decree and proceedings

before foreign court in reciprocating territory. That for such inquiry, it is

not necessary to lead evidence. He submits that Section 44A (3) of the

Code requires application of provisions of Section 47 of the Code to

execute the decree of foreign court in reciprocating territory. That

Section 47 of the Code contemplates adjudication of limited nature of

issues relating to discharge and does not contemplate a full-�edged trial

every time the objections under Section 13 (a) to (f) of the Code are raised

by the judgment debtor. That the legislative object behind introduction of

Section 44A of the Code would be completely destroyed if Executing

1

2014 SCC OnLine Bom 309

2

(2017) 2 SCC 253

3

2020 SCC Online Bom 2611

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Court conducts a full-�edged trial by framing of issues and leading of

evidence.

10) Mr. Fattterpekar submits that even if it is assumed that

recording of evidence in execution proceedings under Section 44A of the

Code is permissible in exceptional cases, the Executing Court has not

recorded any exceptional circumstances in the impugned order. That the

Executing Court has framed issues and directed parties to lead evidence in

a routine manner without making out any exceptional circumstances for

doing so. That the Executing Court has merely recorded submissions of

parties and not even a single �nding is rendered for holding that the

objection raised under Section 13 of the Code requires recording of

evidence. That the Executing Court has not recorded subje ctive

satisfaction about existence of exceptional circumstances for recording

evidence.

11) Mr. Fatterpekar would further submit that the �ndings

rendered by the Executing Court in respect of the objections raised by the

Respondent under Section 13 of the Code are capable of being adjudicated

based on material on record and it is not necessary to lead any evidence.

He would take me through clauses (a) to (f) of Section 13 of the Code and

demonstrates that the entire inquiry into the objections under clauses (a)

to (f) of Section 13 of the Code can easily be conducted based on the

material already available on record. He demonstrates that the decree has

been pronounced by the Court of competent jurisdiction satisfying clause

(a). He further demonstrates that the decree has been given on

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adjudication of merits of the case satisfying requirement under clause (b).

He further points out that no objection has been raised by the Respondent

under the clause (c) of section 13. So far as clause (d) is concerned, he

submits that principles of natural justice have been followed by while

rendering the foreign decree. That records of the foreign court are already

available before the Executing Court and veri�cation thereof would

provide an answer to the efforts made for service of the suit summons on

the Respondent. That the objection of fraud under clause (e) is not

speci�cally raised by the Respondent but mere allegation of suppression

of documents is raised, which does not qualify as fraud. In any case, the

documents available on record would indicate whether there is

suppression or not and that therefore, conduct of a trial in that regard is

not necessary. That the objection under clause (f) about sustenance of

claim founded on any law in force in India is not raised by the

Respondent.

12) Mr. Fatterpekar would submit that the execution proceedings

are within limitation and reliance is placed on judgment of the Apex

Court in Bank of Baroda vs. Kotak Mahindra Bank Limited.

4

He submits

that noti�cation notifying foreign court as reciprocating territory applies

retrospectively as held by Kerala High Court in Kadheeja Kalladi

Puthanpurayil vs. Mohammed Nazir Abdul Aziz

5

and Green Branches

Trading Co (LLC) vs. Shabana Trading

6

. Mr. Fatterpekar would

accordingly pray for setting aside the impugned order and decree.

4

(2020) 17 SCC 798

5

2021 SCC Online Ker 1972

6

2022 SCC Online Ker 6186

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13) Mr. Kelkar would appear for the Respondent for opposing the

Petition. He submits that the Executing Court has merely framed issues

and has permitted leading of evidence by the parties. That there is no

adjudication of objections by the Executing Court as of now. That

therefore, there is no warrant for interference in the impugned orders in

exercise of extraordinary jurisdiction of this court under Article 227 of the

Constitution of India. He submits that the Executing Court can frame

issues in a given case and in exceptional circumstances. In support of his

submission that Executing Court can act with prudence while framing

issues, he relies on judgment of this Court in C.V. Joshi vs. Elphinstone

Spinning and Weaving Mills Co. Ltd

7

. In support of his submission that

issues can be framed in exceptional circumstances, he relies on the

judgment of the Apex Court in Rahul S. Shah vs. Jinendra Kumar Gandhi

and Ors

8

. That the impugned order satis�es both, the test of prudence

and the test of exceptionality. That the case involves exceptional

circumstances where the execution proceedings are barred by limitation.

He relies on judgment of the Apex Court in Bank of Baroda (supra)

contending that the decree was passed on 29 January 2013 and the �rst

execution application was �led on 25 January 2016. That Petitioners

thereafter �led suit on foreign decree on 28 February 2019 which was

dismissed on 19 October 2019. After UAE was noti�ed as reciprocating

territory, the third execution proceedings are �led on 27 July 2020. That

therefore, issue of limitation is vital and goes to the root of the matter,

necessitating framing of issues and leading of evidence. That there is no

provision in law allowing operation of noti�cation of reciprocating

7

2001 (2) Mh.L.J. 195

8

(2021) 6 SCC 418

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territory retrospectively and that therefore, maintainability of the

Petition under section 44A of the Code is also a vital issue going to the

root of the matter, making up an exceptional circumstance.

14) Mr. Kelkar further submits that under Section 44A (3) of the

Code, the decree can be executed only if it does not fall in any of the

exceptional circumstances of clauses (a) to (f) of Section 13 of the Code.

That given the peculiar circumstances of the case, it is more than an

argument that the foreign decree suffers from at least thre e

disquali�cations – i) as the same is not given on the merits of the case

[clause (b)]; ii) as the proceedings are conducted by Fujairah Civil Court in

breach of natural justice [clause (d)]; and iii) as the decree is obtained by

fraud [clause (e)]. That determination of these three disquali�cations

clearly requires framing of issues and leading of evidence. Mr. Kelkar

further submits that the Trial Court has recorded detailed reasons as to

why it felt the need for framing of issues and leading of evidence. That

the subjective satisfaction recorded by the Executing Court does not

warrant interference in exercise of writ jurisdiction under Article 227 of

the Constitution of India. He prays for dismissal of the Petition.

15) Rival contentions of the parties now fall for my

consideration.

16) The short issue that arises for consideration in the present

Petition is whether the Executing Court while executing a decree passed

by foreign court in reciprocating territory under Section 44A of the Code

can frame issues and direct the parties to lead evidence while conducting

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inquiry into existence of exceptions speci�ed in clauses (a) to (f) of

Section 13 of the code.

17) Petitioners have secured a decree from Fujairah Civil Court in

UAE, under which the Suit of the Petitioners has been decreed, and the

Respondent is directed to pay an amount of AED 4,082,357/- along with

interest at the rate of 9% per annum with effect from 24 April 2011 in

addition to awarding Attorney fees of AED 300.

18) Respondent initially �led �rst execution application on 25

January 2016 under Section 44A of the Code, at which point of time, UAE

was not noti�ed as a reciprocating territory by the Central Government.

This resulted in dismissal of the �rst execution petition by order dated 17

January 2019. Since UAE was not a reciprocating territory, Petitioners

exercised the remedy of �ling a suit on foreign judgment on 28 February

2019 and Respondent alleges that the same was dismissed for non-

removal of of�ce objections on 19 October 2019. Thereafter, the

Government of India noti�ed UAE as a reciprocating territory on 17

March 2020. The Noti�cation dated 17 March 2020 reads thus :

MINISTRY OF LAW AND JUSTICE

(Department of Legal Affairs)

NOTIFICATION

New Delhi, the 17th January, 2020

G.S.R. 38(E).—In exercise of the powers conferred by Explanation 1 to

section 44A of the Code of Civil Procedure, 1908 (5 of 1908), the Central

Government hereby declares, United Arab Emirates to be a reciprocating

territory for the purposes of the said section and the following Courts in United

Arab Emirates to be superior Courts of that territory, namely:-

(1) Federal Court-

(a) Federal Supreme Court;

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(b) Federal, First Instance and Appeals Courts in the Emirates of

Abu Dhabi, Sharjah,

Ajman, Umm Al Quwain and Fujairah;

(2) Local Courts-

(a) Abu Dhabi Judicial Department;

(b) Dubai Courts;

(c) Ras Al Khaimah Judicial Department;

(d) Courts of Abu Dhabi Global Markets;

(e) Courts of Dubai International Financial Center.

[F. No. J-14014/1/2015-Judl.]

RAJVEER SINGH VERMA, Addl. Secy.

19) After noti�cation of UAE as reciprocating territory vide

Noti�cation dated 17 March 2020, Petitioners have �led the instant

execution proceedings bearing Darkhast No. 2554 of 2020 before the

District Judge, Pune. The execution proceedings are still pending and

what is done at this stage by the Executing Court is to merely allow the

application preferred by the Respondent at Exhibit 20 by framing the

issues and by granting liberty to the parties to lead evidence. The

operative part of the impugned order dated 3 October 2022 reads thus :

1] Application Exh.20 stands allowed.

2] Following issues are framed for adjudication under Sec. 13 r/w Sec. 44A and

47 of Code of Civil Procedure.

a] Does the J.D. prove that the D.Hs suppressed various facts and

documents from the Fujairah Court ?

b] Does the J.D. proves that the Judgment was obtained is opposed to

principles of natural justice ?

c] Does J.D proves that the DHs obtained decree by practicing fraud upon

the Fujairah Court, U.A.E ?

d] Whether the judgment is executable in view of objections raised in

Exh. 10 ?

e] Whether the Execution Petition is maintainable?

f] Whether the execution petition is within limitation ?

g] Does JD prove that the judgment and decree comes under purview of

Sec. 13(b) and (f)?

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h] What order ?

3] Liberty is given to the J.D and D.H. to avail Order 11, 12, 13 within 30 days

from the date of order before adducing evidence.

4] J.D. and D.H are directed to furnish list of witnesses within 15 days from the

date of order.

5] They are requested to co-operate to the Court to give �nding to the issues

within 90 days.

6] It is also directed to both the sides to submit argument on application for

injunction.

20) According to the Petitioners, neither issues could be framed

nor could evidence be allowed to be led when decree is to be executed

under Section 44A of the Code. The distinction between execution of the

decree passed by the foreign court in reciprocating territory and non-

reciprocating territory is highlighted by the Petitioners and it is

contended that conduct of full-�edged trial in execution proceedings by

framing of issues and leading of evidence would completely convert the

execution proceedings into a suit �led on judgment of foreign court in

non-reciprocating territory.

21) Under Section 14 of the Code, there is a presumption as to

foreign judgment and unless contrary appears on the record, there is a

presumption that the foreign judgment was pronounced by a court of

competent jurisdiction. However, the presumption can be displaced by

proving want of jurisdiction. Section 14 of the Code provides thus:

14. Presumption as to foreign judgments.

The Court shall presume upon the production of any document purporting to be

a certi�ed copy of a foreign judgment, that such judgment was pronounced by a

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Court of competent jurisdiction, unless the contrary appears on the record; but

such presumption may be displaced by proving want of jurisdiction.

22) Under Section 13 of the Code, a foreign judgment is not

conclusive when any of the circumstances enumerated in clauses (a) to (f)

exist. Section 13 of the Code provides thus:

13. When foreign judgment not conclusive.

A foreign judgment 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 compe tent

jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an

incorrect view of international law or a refusal to recognise the law of

2[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.

23) Ordinarily, when foreign court passes a judgment and a

decree, which is sought to be executed in India, a suit needs to be �led in

Indian court, which needs to conduct an inquiry into existence of

circumstances under clauses (a) to (f) of Section 13 of the Code. Thus, a

decree of a foreign court is not executable in Indian courts unless Indian

court makes a decree on the foreign judgment. However, Section 44A of

the Code makes an exception where a decree is passed by foreign courts in

reciprocating territories. Reciprocating territory means a country or

territory outside India which the Central Government declares to be a

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reciprocating territory by issuance of a Noti�cation. When a decree is

made by Superior Courts of any reciprocating territory, the same can be

�led in a District Court and it can be executed by the District Court as if it

has been passed by the District Court itself. Section 44A of the Code

provides thus :

44A. Execution of decrees passed by Courts in reciprocating territory.

(1) Where a certi�ed copy of a decree of any of the superior Courts of *** any

reciprocating territory has been �led 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 certi�ed copy of the decree shall be �led a certi�cate from

such superior Court stating the extent, if any, to which the decree has been

satis�ed or adjusted and such certi�cate 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 �ling of the certi�ed 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 speci�ed in clauses (a) to (f) of section 13.

Explanation 1.— “Reciprocating territory” means any country or territory

outside India which the Central Government may, by noti�cation in the Of�cial

Gazette, declare to be a reciprocating territory for the purposes of this section;

and “superior Courts”, with reference to any such territory, means such Courts

as may be speci�ed in the said noti�cation.

Explanation 2.— “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 �ne or other penalty, but shall in no case include an arbitration award, even if

such an award is enforceable as a decree or judgment.

24) Thus, there is a vital distinction between the decree passed

by the foreign court in non-reciprocating territory and a decree passed by

the foreign court in reciprocating territory. In the former case, the decree

is not directly executable, and it is necessary to institute a suit on foreign

judgment to secure a domestic decree on the foreign judgment. However,

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in the latter case, the decree passed by the foreign court in reciprocating

territory can be directly executed by the District Court. However, even

while executing the decree of a foreign court in reciprocating territory,

the exceptions speci�ed in clauses (a) to (f) of Section 13 of the Code

continue to apply and the District Court can refuse execution if the decree

demonstrably falls in any of the exceptions speci�ed in clauses (a) to (f) of

Section 13 of the Code.

25) Thus the onus to prove existence of exceptions speci�ed in

clauses (a) to (f) of Section 13 of the Code in a suit �led for decree on

foreign judgment passed in non-reciprocating territory is on the Plaintiff

�ling such suit whereas in execution proceedings �led under Section 44A

for execution of decree passed by foreign court in reciprocating territory

such onus is on the judgment-debtor.

26) In Marine Geotechnics (supra) learned Single Judge of this

Court has highlighted the difference between execution of decree passed

by the foreign courts in reciprocating territories and non-reciprocating

territories and has held in paras-20 and 21 as under:

20. Section 13 enunciates the well-established principle of private international

law that a court will not enforce a foreign judgment that is not of a competent

court. What that section provides is, therefore, substantive law, not mere

procedure (Raj Rajendra Sardar Moloji Nar Singh Rao Shitole v. Shankar Saran,

AIR 1962 SC 1737). Now section 13 makes no distinction between judgments of

a court in a reciprocating territory and those of courts in non-reciprocating

territories. That distinction comes only in section 44A, an independent

provision that says that a decree of a court in a reciprocating state may be

put into execution in India (M.V. AL. Quamar v. Tsavliris Salvage

(International) Ltd., AIR 2000 SC 2826). A decree from a non-

reciprocating state cannot be so executed. The decrees of both

reciprocating and non-reciprocating territories must, however, satisfy the

tests of section 13. The difference is at what stage, and on whom lies the

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burden. Where a foreign judgment is not on merits, or violates any of the

provisions of sub-clauses (a) to (f) of section 13, it is not conclusive, even

though it may accord with the domestic procedure of the country in which it

was passed and is valid and enforceable in that country. An ex parte decree is

not necessarily one that is always, and ipso facto, not on merits. If a court

has considered and weighed the plaintiffs’ case and assessed his evidence,

it will be on merits, notwithstanding that it is ex parte. Where however,

there is a summary disposal of the case under some special statutory

provision that obviates an examination of the merits and the taking of

evidence, such a decree is not executable in India. Thus, for instance, if

there is an immediate default summary judgment only on account of the

defendants’ failure to appear and without any examination of the material or

the evidence, that judgment is not enforceable in India (International Woollen

Mills v. Standard Wool (U.K.) Ltd. (2001) 5 SCC 265). In short, if a foreign

judgment falls under any of the clauses (a) to (f) of section 13, it is not

conclusive as to any matter thereby adjudicated upon. The judgment is open to

collateral attack on the grounds mentioned in the clauses of section 13 (Smt.

Satya v. Teja Singh (1975) 1 SCC 120). The elaborate discussion by the Supreme

Court in International Woollen Mills v. Standard Wool (U.K.) Ltd., AIR 2001 SC

2134 ; (2001) 5 SCC 265, cited in China Shipping Development Co. Ltd. v.

Lanyard Foods Ltd. (2007) 5 Bom. CR 684 ; [2008] 142 Comp Cas 647 (Bom) and

Intesa Sanpaolo S.P.A. v. Videocon Industries Ltd. [2014] 183 Comp Cas 395

(Bom)) ultimately leads to one pithy conclusion : a decree that follows a

judgment that is not on merits cannot be enforced in India (page 2143 of AIR

2001 SC):

“Even where the defendant chooses to remain ex parte and to keep out, it is

possible for the plaintiff to adduce evidence in support of his claim (and

such evidence is generally insisted on by the courts in India), so that the

court may give a decision on the merits of his case after a due consideration

of such evidence instead of dispensing with such consideration and giving a

decree merely on account of the default of appearance of the defendant.

In the former case the judgment will be one on the merits of the case, while

in the latter the judgment will be one not on the merits of the case. Thus, it

is obvious that the non-appearance of the defendant will not by itself

determine the nature of the judgment one way or the other. That appears to

be the reason why section 13 does not refer to ex parte judgments falling

under a separate category by themselves.” (emphasis supplied)

21. Armed with a decree of a court in a non-reciprocating fore ign

territory, what must a party do in India ? His option is to �le, in a

domestic Indian court of competent jurisdiction, a suit on that foreign

decree, or on the original, underlying cause of action, or both (Badat and

Co. v. East India Trading Co., AIR 1964 SC 538 ; (1964) 66 BLR 402). He cannot

simply execute such a foreign decree. He can only execute the resultant

domestic decree. To obtain that decree, he must show that the foreign decree, if

he sues on it, satis�es the tests of section 13. If the decree is, on the other hand,

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of a court in a reciprocating territory, then he can straightaway put it into

execution, following the procedure under section 44A and Order 21, rule 22 of

the CPC. At that time, the judgment-debtor can resist the decree holder by

raising any of the grounds under section 13. If he does not, or fails in his

attempt, the decree will be executed as if it were a decree passed by a competent

court in India.

(emphasis added)

27) The legislative intent behind incorporation of Section 44A in

the Code is to ensure swift execution of decrees when they are made by

courts in reciprocating territories. The provision obviates �ling of a suit

and provides for remedy directly of execution. Thus, when a decree is

made by a foreign court in reciprocating territory, it is not necessary to

institute a separate suit and the same can be executed as if it is a

domestic decree under Section 47 of the Code.

28) Section 44A (3) of the Code provides that the provisions of

Section 47 apply to the proceedings before the District Court executing

the decree under Section 44A. Under Section 47 of the Code, all questions

arising between the parties to the suit in which the decree was passed and

which relate to execution, discharge or satisfaction of the decree can be

determined by the Executing Court. Section 47 of the Code provides thus:

47. Questions to be determined by the Court executing decree.

(1) All questions arising between the parties to the suit in which the decree was

passed, or their representatives, and relating to the execution, discharge or

satisfaction of the decree, shall be determined by the Court executing the

decree and not by a separate suit.

* * * * *

(3) Where a question arises as to whether any person is or is not the

representative of a party, such question shall, for the purposes of this section,

be determined by the Court.

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Explanation I.—For the purposes of this section, a plaintiff whose suit has been

dismissed and a defendant against whom a suit has been dismissed are parties

to the suit.

Explanation II.—(a) For the purposes of this section, a purchaser of property at a

sale in execution of a decree shall be deemed to be a party to the suit in which

the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such

purchaser or his representative shall be deemed to be questions relating to the

execution, discharge or satisfaction of the decree within the meaning of this

section.

29) However, the only distinction between execution of a

domestic decree and a decree of foreign court passed in reciprocating

territory (which is treated on par with domestic decree) is that the District

Court can refuse to execute the decree if it is satis�ed that the decree falls

within any of the exceptions speci�ed under clauses (a) to (f) of Section

13 of the Code. Thus, in addition to an inquiry under Section 47 of the

Code, the District Court, while exercising powers under section 44A,

needs to conduct additional inquiry as to whether the decree falls under

any of the exceptions speci�ed under clauses (a) to (f) of Section 13 of the

Code. Thus, while domestic decree can be executed by conduct of inquiry

under Section 47 of the Code, decree passed by the foreign court in

reciprocating territory can be executed under section 44A by conducting

twin inquiries viz (i) inquiry under Section 47 of the Code, and ii) inquiry

into existence of circumstances enumerated under clauses (a) to (f) of

Section 13 of the Code.

30) Ordinarily, it is not necessary in every case that issues are

framed and evidence is led for conduct of inquiry into circumstances

enumerated under clauses (a) to (f) of Section 13 of the Code. This is

because the legislative object is to ensure swifter and faster execution of

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the decree passed by the foreign court in reciprocating territory. If in

every case, framing of issues and leading of evidence is made mandatory

for District Court exercising execution powers under Section 44A of the

Code, the same would bring the decree passed by the foreign court in

reciprocating territory as if it is a decree passed by foreign court in non-

reciprocating territory. When a suit is �led on a judgment passed by the

foreign court in a non-reciprocating territory, such suit would entail

framing of issues and leading of evidence while conducting inquiry into

existence of circumstances speci�ed in clauses (a) to (f) of Section 13 of

the Code. However, since the Legislature has carved out an exception by

treating the decree made by foreign court in reciprocating territory as a

domestic decree executable under Section 47 of the Code, the rigours of

inquiry into circumstances enumerated under clauses (a) to (f) of Section

13 would not be the same as in a suit based on judgment by foreign court

in non-reciprocating territory. Therefore, it will have to be necessarily

presumed that the second inquiry under Section 44A (3) of the Code into

existence of circumstances enumerated under clauses (a) to (f) of Section

13 will have to be necessarily a summary inquiry and not a full-�edged

trial. Therefore, in every case, it is not mandatory that the issues are

framed and evidence is directed to be led for conducting a full-�edged

trial into existence of circumstances enumerated under clauses (a) to (f)

of Section 13 of the Code when District Court executes a decree made by

foreign court in reciprocating territory under Section 44A of the Code.

31) It would therefore be necessary to examine the manner in

which the inquiry is to be conducted about existence of circumstances

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speci�ed in clauses (a) to (f) of Section 13 of the Code when decree is

taken up by the District Court for execution under Section 44A. In Alcon

Electronics (supra), the Apex Court while considering a slightly different

issue of execution of an interlocutory order made by an English Court in

India, has dealt with contours of inquiry under Section 13 of the Code in

paras-14 to 19 of the judgment as under:

14. A plain reading of Section 13 CPC would show that to be conclusive an

order or decree must have been obtained after following the due judicial

process by giving reasonable notice and opportunity to all the proper and

necessary parties to put forth their case. When once these requirements

are ful�lled, the executing court cannot enquire into the validity, legality

or otherwise of the judgment.

15. A glance on the enforcement of the foreign judgment, the position at

common law is very clear that a foreign judgment which has become �nal and

conclusive between the parties is not impeachable either on facts or law except

on limited grounds enunciated under Section 13 CPC. In construing Section 13

CPC we have to look at the plain meaning of the words and expressions used

therein and need not look at any other factors. Further, under Section 14 CPC

there is a presumption that the foreign court which passed the order is a court

of competent jurisdiction which of course is a rebuttable presumption. In the

present case, the appellant does not dispute the jurisdiction of the English

Court but its grievance is, it is not executable on other grounds which are

canvassed before us.

16. The appellant contends that the order of the English Court is not given on

merits and that it falls under Section 13(c) CPC as a result of which it is not

conclusive and therefore unexecutable. We cannot accept such submission. A

judgment can be considered as a judgment passed on merits when the court

deciding the case gives opportunity to the parties to the case to put forth their

case and after considering the rival submissions, gives its decision in the form

of an order or judgment, it is certainly an order on merits of the case in the

context of interpretation of Section 13(c) CPC.

17. Applying the same analogy to the facts of the case on hand, we have no

hesitation to hold that the order passed by the English Court is an order on

merits. The appellant who has submitted itself to the jurisdiction of the Court

and on its own requested the Court to assess the costs summarily. While passing

a reasoned order by dismissing the application �led by the appellant, English

Court granted the costs against the appellant. Had it been the case where

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appellant's application was allowed and costs were awarded to it, it would have

as well �led a petition for the execution of the order. Be that as it is, the

appellant did not prefer any appeal and indeed sought time to pay the costs.

The appellant, therefore, cannot be permitted to object the execution. It cannot

be permitted to blow hot and cold at the same time. In our opinion, it is a pure

abuse of process of law and the courts should be very cautious in entertaining

such petitions.

18. In International Woollen Mills v. Standard Wool (UK) Ltd. [International

Woollen Mills v. Standard Wool (UK) Ltd., (2001) 5 SCC 265 : AIR 2001 SC

2134] , this Court observed : (SCC p. 280, para 29)

“29. … ‘17. … Even where the defendant chooses to remain ex parte and

to keep out, it is possible for the plaintiff to adduce evidence in support

of his claim (and such evidence is generally insisted on by the courts in

India), so that the Court may give a decision on the merits of his case

after a due consideration of such evidence instead of dispensing with

such consideration and giving a decree merely on account of the default

of appearance of the defendant.

18. In the former case the judgment will be one on the merits of the case,

while in the latter the judgment will be one not on the merits of the

case. Thus it is obvious that the non-appearance of the defendant will

not by itself determine the nature of the judgment one way or the other.

That appears to be the reason why Section 13 does not refer to ex parte

judgments falling under a separate category by themselves.’ [Ed. : As

observed in Govindan Asari Kesavan Asari v. Sankaran Asari

Balakrishnan Asari, 1957 SCC OnLine Ker 151, paras 17-18.] ”

19. The principles of comity of nation demand us to respect the order of English

Court. Even in regard to an interlocutory order, Indian Courts have to give due

weight to such order unless it falls under any of the exceptions under Section 13

CPC. Hence we feel that the order in the present case passed by the English

Court does not fall under any of the exceptions to Section 13 CPC and it is a

conclusive one. The contention of the appellant that the order is the one not on

merits deserves no consideration and therefore liable to be rejected.

Accordingly, Issue (i) is answered.

(emphasis added)

32) In Arvind Kotecha (supra), the Division Bench of this Court

has dealt with the scope of inquiry into existence of circumstances

speci�ed in clauses (a) to (f) of Section 13. This Court has referred to the

judgment of the Apex Court in Alcon Electronics and has held in paras-14

and 15 as under:

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14. The �rst exception in section 13, contained in clause (a), is want of

pronouncement by a Court of competent jurisdiction. The decree could never

re�ect, on the face of it, competence or otherwise of the Court pronouncing it;

that would have to be gathered from the circumstances surrounding a case and

the adjudication called for by it. Even clause (b) does not suggest the mere text

of a foreign decree or judgment as the basis of assessment. A decree or

judgment, for example, may contain reasons and yet these may have absolutely

nothing to do with the merits of the case; if at all, these merits can only be

noticed from the pleadings of the parties, and not from the mere text of the

decree or judgment. Clause (c) of section 13, on its very face, makes it clear that

one must have regard to the proceedings before the foreign Court to assess

whether, on the face of such proceedings, the decree appears 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. One cannot simply have recourse to a

decree to consider whether circumstances provided under clause (c) are

satis�ed; one must necessarily have regard to the proceedings. Ditto for clause

(d) of section 13. By its very nature, it requires the executing Court to have

regard to the proceedings in which the judgment was obtained to see whether

such proceedings were opposed to natural justice. Clause (e), which is invoked

in a case of fraud, almost by de�nition, could not imply exclusive reference to

the text of a decree or judgment for its assessment. Even for assessing a case

under clause (f), one must have regard to the claim and the defence to come to

any conclusion on founding of the claim on breach of any law in force in India.

Circumstances provided in Clauses (a) to (f) of section 13 are, thus,

deducible from pleadings, circumstances or proceedings of a case and

there is nothing intrinsic in the text of a decree so as to treat it as the sole

basis for assessing existence or otherwise of the exceptions provided

therein. The text of the decree, indicating inter alia whether or not it

contains reasons, is but one circumstance; the Court must have regard to

all circumstances to assess whether any of the exceptions provided in

Clauses (a) to (f) of section 13 is made out. The Court cannot refuse to

execute a foreign decree or judgment merely because it is not apparent

from such decree or judgment whether or not it falls within any of the

exceptions contained in Clauses (a) to (f) of section 13.

15. Clauses (a) to (f) of section 13, being exceptions to the rule, the onus

to show that the foreign judgment falls within any of these exceptions is

on the objector to the execution applied for. The objector must positively

show existence of the circumstances referred to in either of these clauses.

In the present case, the judgment debtor, who objects to the execution, invokes

clause (b), submitting that the judgment has not been given on the merits of the

case. As explained by the Supreme Court in Alcon Electronics Pvt. Ltd. v. Celem

S.A., (2017) 3 Mah LJ (SC) 734 : (2017) 2 SCC 253, “when the Court deciding the

case gives opportunity to the parties to the case to put forth their case and after

considering the rival submissions, gives its decision in the form of an order or

judgment, it is certainly an order on merits of the case In the case of Alcon

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Electronics the appellant, after submitting itself to the jurisdiction of the Court,

had agreed to go for a summary adjudication of costs. The order of costs did not

have reasons. The appellant contended before the Court that the order of costs

was not a judgment on merits. The Supreme Court negatived the contention.

This is what the Supreme Court held was the purport of section 13 generally

with its exceptions to conclusiveness of a foreign judgment:

“A plain reading of section 13, Civil Procedure Code would show that to be

conclusive an order or decree must have been obtained after following the

due judicial process by giving reasonable notice and opportunity to all the

proper and necessary parties to put forth their case. When once these

requirements are ful�lled, the executing Court cannot enquire into the

validity, legality or otherwise of the judgment.”

(emphasis and underlining added)

33) Thus, the judgments of the Apex Court in Alcon Electronics

and of Division Bench of this Court in Arvind Kotecha broadly discuss the

contours of inquiry under Section 13 of the Code and it has been held that

the circumstances provided in clauses (a) to (f) of Section 13 of the Code

need to be deduced from the pleadings, circumstances or proceedings of

the case and the court cannot refuse to execute foreign decree merely

because it is not apparent from such decree whether or not it falls in any

of the exceptions contained in clauses (a) to (f) of Section 13 of the Code.

The Division Bench of this Court has held that existence of circumstances

enumerated in Section 13 clauses (a) to (f) of the Code need to be

gathered from pleadings, circumstances and proceedings of the case.

34)Coming to the inquiry under Section 47 of the Code, the Execution

Court can decide “all questions arising between the parties which relate to

execution, discharge or satisfaction of the decree”. A separate suit for

deciding such questions is not maintainable. In C.V. Joshi (supra), a

Single Judge of this Court has decided the issue as to whether Executing

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Court is under an obligation to frame issues. The question which arose

before the Court is captured in para-2 of the judgment as under:

2. The short question which arises for consideration in this case is whether it is

mandatory for the executing Court to frame an issue on the basis of the stand

taken by the rival parties for deciding the question raised before it. Secondly,

whether the Court below was justi�ed in suo motu recalling the issue, which

was already framed earlier, by the impugned order.

35) This Court has answered the issue by holding in paras-6 and

7 of the judgment as under:

6. ....Framing of issue would only enable the Court to focus its attention on the

question raised before it between the parties and nothing more. Since no

provision is made in the Code regarding the necessity of framing issues by the

Executing Court, the Court would act with prudence. Procedure is evolved only

to achieve the main object of dispensation of justice. It is only a means and not

an end in itself. It may not be forgotten that it is on the Courts that citizens

primarily repose trust. If they have respect for the work of the Courts, their

respect for law will survive, but if they lose their respect for the work of the

Courts, their respect for law and order will vanish with it to the great detriment

of society. The approach of the Executing Court in the present case is bound to

shatter the faith in the working of the Courts. There is no reason why the Courts

should show any concession with regard to such technical plea at the instance

of a party who seeks to ineffect resile from the consent decree and has

disobeyed the undertaking given to the Court.

7. Be that as it may, I shall now examine the merits of the contention advanced

on behalf of the petitioner, lest the Courts do not get embroiled in such

unstatable matters in future. Reliance has been placed by the petitioner on the

provisions of Order 14, Civil Procedure Code which are inapplicable to the

present case. We are concerned with the execution proceedings which are

governed by the provisions of Order 21, Civil Procedure Code. In my view, Order

14 would apply only to the procedure regarding determination of the suit and

not to the execution proceedings. Reference is also made to Order XXI, Rule 101

and Rule 105. On plain reading of the said provisions it would appear that the

Executing Court is not under any obligation to frame issue regarding the

question which has been raised before it. Framing of issue by the Executing

Court would at best be a matter of prudence but not a rule. The Court

below has rightly relied upon the decision reported in AIR 1956 Raj 1 (para 6)

Ramjivan Ramnath v. Roopchand to hold that issues are not necessarily framed

when objections in execution proceedings are decided. In the light of the said

decision no further investigation on this question would survive. Instead of

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spending its precious time on adjudicating such trivial matters, the Executing

Court would be well advised to decide the main execution proceedings with

utmost dispatch.

(emphasis added)

36) Thus, it is held by this Court in C.V. Joshi (supra) that

framing of issues by Executing Court would at best be a matter of

prudence but not a rule.

37) In Rahul S. Shah (supra), the Apex Court has held that

leading of evidence during execution proceedings would only be in

exceptional circumstances and in rare cases where the question of fact

cannot be decided by resorting to any other expeditious methods. The

Apex Court has mandated the directions to be followed by the Executing

Court in para-42 and one of the directions in para-42.9 reads thus:

42.9. The court should allow taking of evidence during the execution

proceedings only in exceptional and rare cases where the question of fact could

not be decided by resorting to any other expeditious method like appointment

of Commissioner or calling for electronic materials including photographs or

video with af�davits.

38) Thus, even while deciding execution proceedings in respect

of the domestic decree under Section 47 of the Code, there is no allergy to

framing of issues and leading of evidence, though it is not a matter of

prudence and must be resorted to in exceptional circumstances. As

observed above, the execution proceedings under Section 44A of the Code

in respect of the decree of foreign court in reciprocating territory entails

further inquiry in respect of the enumerated clauses (a) to (f) of Section

13 of the Code. It is therefore necessary to consider whether any

exceptional circumstances exist in the present case for framing of issues

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and for granting liberty to the parties to lead evidence. The Executing

Court has conducted prima facie scrutiny of the foreign decree and the

proceedings of Fujairah Civil Court and has recorded certain �ndings

thereon. It would be apposite to reproduce observations of the Executing

Court in that regard as recorded in para-120 to 147 of the Impugned

Order:

120] Section 13 of the C.P.C provides exception in the nature of Clauses “a to f”.

If the D.H satis�es to the Executing Court that a foreign judgment has passed

the tests laid down in these clauses then it becomes conclusive in respect of any

matter which has been directly adjudicated between the parties. Thus, the

conclusiveness does not extend to the reasons of the judgment. The Executing

Court is not suppose to touch the reasons or core of the foreign judgment i.e.,

an adjudication byforeign Court by foreign Judge. The Executing Court is

suppose to take into consideration which have been provided in Section 13 of

the C.P.C.

121] Along with Exh. 3, the Order of Fujairah Court (Exh. 3/1) is �led. At Exh.

3/2 there is ‘certi�cate’ which is issued by U.A.E Ministry of Justice, Fujairah

Civil Court. On perusal, it appears that in ‘open Session’ Judgment is delivered.

The second defendant is the J.D. whereas the defendant is Candica Industries

FZ. D.H were plaintiffs.

122] The plaintiff /D.H had produced photocopy of M.O.U., photocopy of notice

and statement from the Reconciliation and Settlement Committee.

123] It is mentioned in the judgment that, “whereas the First and Second

Defendants didn’t attend the sessions even though they were noti�ed; so the

Court ruling that is issued in today’s session is a default judgment i.e., as if

issued in the presence of all parties, pursuant to the provisions of article (53) of

the Federal Law of Civil Procedures”.

124] There is use of words, ‘noti�ed’ ‘default judgment’ shows in absentism of

the J.D., it is delivered.

125] There is whisper of Expert Report. It is observed that 2nd defendant i.e.,

J.D breached his obligation towards the plaintiff by receiving and taking the

above mentioned amount unlawfully therefore, he became liable this amount

and owes to them. It is observed in above expert report that’ “Accordingly, the

Second Defendant breached his obligation towards the First Defendant

Company when he singed the above mentioned Memorandum of Understanding

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without having an authorisation or power to do so. Moreover the Second

Defendant breached his obligation towards the plaintiffs by receiving and taking

the above mentioned amount of money in an unlawful way. Therefore, becomes

liable and owes this amount to them. In addition the expert found out that the

First Defendant Company is not liable and doesn’t owe any amounts to the

Plaintiff’s because there is no contractual obligation between them.

126] The above judgment shows that it is default judgment. In other words it is

exparte judgement. There is list of documents at Exh. 3A. Internal page 55 is

relevant. It is a document titled as “Notice to attend before Fujairah Civil Court

in the Civil Case No. 241/2011 – Commercial Overall with the amended requests

and the report arrival”.

127] There is mention of the defendant, Naveen Kumar address as ‘Fujairah,

free zone’.

128] On internal page 56, it is mentioned by process server noti�er as [ I went to

the defendant’s company and gave the notice to an employee of the company

but he refused receiving and signing, so I could not notify.]

129] Above this, there is endorsement of the Noti�er, “I do hereby certify that I

delivered a copy of this notice and the case declaration to ... at 1.30 p.m on

Tuesday 18/12/2012”.

130] It is necessary to refer the say/pleading of the DH (Exh. 13). This say is �led

to Exh. 10. On internal page 19 of it, paragraph no. 5.2(v) it is mentioned that

‘various notices’ were issued by the Fujairah Civil Court which were served by

Fujairah Civil Court and JD’s representative in U.A.E including pasting notices

on the JD’s Company in U.A.E”.

131] Here word ‘notices’ is used, it is plural. There is speci�c mention of, “ JD’s

representative” without mentioning his name. I have reproduced the report of

Fujairah Court and if this pleading is considered, then in my view it is

contentious issue. It is because burden in on the shoulder of the D.H to show

that JD had a representative in U.A.E. This fact is exclusively within his

knowledge.

132] In other words, this shows that the JD was not living in UAE as he was

having representative according to the D.H. The endorsement shows that

attempt had done to serve on employee. The word ‘notices’ is used and it is for

the D.H to show those notices and same were served because there is speci�c

mention that this is judgment in default i.e., exparte judgment. It is cause of

disagreement.

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133] In respect of address of the J.D and knowledge of the D.H I would like to

refer here internal page no. 39 from list of documents dt. 17.10.20 Exh. 3A.

134] The name of J.D. is present along with his nationality and address as ‘138,

Madhuban “B” Worli Hill Road, Worli, Mumbai 400018’. His passport number is

also mentioned. Address of his son is present in the bottom. Their address is of

Mumbai.

135] This document is a copy of agreement copy of memoran dum of

understanding running page 2 to 43 Page 39.

136] This address is speci�cally mentioned in M.O.U.

137] This is one fact showing knowledge on the part of the D.H in respect of

address of the J.D. There are emails which were exchanged between the D.H and

the J.D. which are reproduced as “Annexure A to I”. These e-mails were after

resignation of J.D. from the company. Thus, email address was and is also

within the exclusive knowledge of D.H. Same are relied by the J.D.

138] These documents are signi�cant, having its own sanctity. It is not proper to

convene towards the same and jump to accept the submission of the D.H, that

there was proper service. There is substance in the assertion of the J.D on this

point which give rise substantial question of law and fact, required to be

addressed in depth and detail in view of Section 44A read with Section 13 and 47

of C.P.C.

139] Regarding evidence adduced in that suit the Judgment is suf�cient to

observe that only on the basis of expert report �led along with Exh. 3, other

documents which have mentioned in paragraph were relied. It is necessary to

have a consideration in good sense to this procedural aspect about the

production of evidence and proof of it. This is also mixed question of law and

fact covered by the above Sections goes to the root of the matter required to be

dealt in detail. This production of evidence embodies proof.

140] The J.D has come with speci�c allegation regarding suppression of emails

and other correspondence i.e., material fact from Fujairah Court and he took

this aspect within the sphere of fraud. Emails have also produced on record Exh.

12. There is suppression of address, according to J.D even after knowledge of

both the addresses i.e., postal address and email address of the J.D. Moreover,

according to J.D. there is suppression of the fact of resignation. This act of

suppression and allegation regarding to it certainly holds water, required to

ponder over, on this aspect, it also goes to the root.

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141] The J.D as assailed judgment and decree by raising doubt about the

authority to sign the judgment. He has dealt with. It is for the J.D. to

substantiate it. Opportunity is required as it is already embossed in the

Judgment.

142] The principle assertion of the J.D. is that this execution proceeding is

barred by limitation. It is not maintainable. It is pointed out that this question

is question of law, can be addressed without evidence. I do agree. This is not a

stage to deal with this issue question of limitation at threshold while dealing

with this application only. The D.H and J.D would get an opportunity to address

this question as it is also goes to the root and can ravage.

143] The D.H has �led this execution proceeding when the noti�cation

regarding reciprocating territory has been issued, where this noti�cation is

prospective or retrospective in application is also question of law and

interpretation of law. At this initial stage, while dealing with this application,

now this point is not within periphery of the Court to address it and give

�nding. Thorough argument is required on this question of law.

144] It is assertion of the D.H that decree was passed in mechanical and

summary manner without any independent appraisal of the claim of the D.H.

This aspect does not satisfy the standard or criteria prescribed by the law.

145] There is substance. It is necessary to give an opportunity to J.D. to show

that fact and the D.H to get opportunity to refute it.

146] J.D has alleged that there is violation of principle of natural justice and in

detail in application Exh. 10 it is harped upon. This question is also pivotal one

and opportunity required to the J.D. to establish this fact. The D.H can confute

it.

147] It is prima facie appears that the executability of the decree is challenged

under Section 13 of the C.P.C. read with Section 44A and Section 47 of the

C.P.C. Thus application is maintainable.

39) The Executing Court has thus held that leading of evidence

on the issue of limitation is not necessary as the same can be decided in

absence of evidence. However, qua the issue of following the principles of

natural justice, the Executing Court has felt need for evidence considering

the position that the address of the Respondent of Worli, Mumbai was

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re�ected in the MOU. The Executing Court therefore wants to inquire as

to why the said address of Respondent of Worli, Mumbai was not

disclosed in the court proceedings and why attempts were made to serve

him in UAE. According to the Respondent, the foreign decree is an

outcome of fraud inter alia because the same is secured by deliberately

suppressing the address of the Respondent of Worli, Mumbai.

40) The Executing Court has therefore noted exceptional

circumstances for adopting the route of framing of issues. It has held in

para-150 of the order as under:

150] I am of the view that in execution proceeding, in exceptional cases like this

execution petition, the Court can frame issues and adjudicate it for above

reasons. Thus, I disagree with Adv. Shri. Kanade and agree with Adv. Shri. P.

Narayan.

41) In the present case, the judgment-debtor has created some

doubts in the mind of the Executing Court about existence of exceptions

speci�ed in clauses (b), (d) and (e) of Section 13 of the Code about the

decree not being made on merits, violation of principles of natural justice

and decree being obtained by fraud. On account of such doubts being

created, the Executing Court, in the present case, has felt the need to

examine the objections more thoroughly. It has recorded existence of

exceptional circumstances in the present case in the impugned order for

taking the exceptional measures of framing of issues and leading of

evidence. The decision appears to be prudent.

42) The main apprehension of the Petitioner is that the

Respondent is delaying execution of the decree. This apprehension is

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taken care of by the learned Judge by requesting the parties to cooperate

with the Court for delivering �ndings on the issue within 90 days. Instead

of acting in terms of the order dated 3 November 2022, Petitioners were

advised to challenge the said order by �ling the present Petition. In the

result, execution proceedings are delayed by more than 3 years. The

apprehension expressed by the Petitioners can still be taken care of by

directing the Executing Court to record evidence and render �ndings on

the issues in a time-bound manner.

43) I therefore do not �nd any valid reason to interfere in the

impugned order. The Writ Petition is accordingly dismissed. However,

the learned District Judge is requested to render �ndings on the issue

framed in an expeditious manner preferably within a period of 3 months.

Both the sides to cooperate with the Learned District Judge by leading

evidence in a timely manner. All rights and contentions of the parties are

expressly kept open to be decided by the Executing Court. Rule is

discharged. There shall be no order as to costs.

[SANDEEP V. MARNE, J.]

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PAGE NO. 32 of 32

TUESDAY, 10 FEBRUARY 2026

NEETA

SHAILESH

SAWANT

Digitally

signed by

NEETA

SHAILESH

SAWANT

Date:

2026.02.10

20:54:57

+0530