At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE A. MUHAMED MUSTAQUE & THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
For the Petitioners: K.B. Gangesh, Smitha Chathanarambath, Athira A. Menon, Amal S. Kumar, Advocates. For the Respondent: -----
A. Muhamed Mustaque, J.1. The petitioners are the decree holders of a decree passed by the Court in UAE. The decree was obtained on 19.09.2018. The Central Government issued a notification on 17.01.2020 in exercise of the power conferred by Explanation 1 to Section 44A of the Code of Civil Procedure, 1908. By virtue of this notification, the decree obtained from UAE has become executable in India.2. The petitioners filed execution petition before the Family Court, Thrissur. The Family Court placing reliance on the judgment of the learned Single Judge of this Court in Manoj Moolekkudi Subramanyan v. Rajesh Palliparambil Ravi [2020 (6) KHC 87] dismissed the execution petition holding that it is not maintainable. The learned Single Judge in Manoj Moolekkudi Subramanyan's case (supra) held that notification dated 17.01.2020 is having only prospective application and it has no retrospective effect. The decree of the UAE Court in this case admittedly was prior to the date of notification and therefore, the Family Court was of the view that no execution petition would lie to execute a decree of UAE Court passed prior to the notification.3. India and UAE entered into a bilateral agreement on 25.10.1999 for judicial co-operation. It is pursuant to such agreement, the Central Government issued notification dated 17.01.2020. This agreement recognizes the execution of the decree of both the countries as though it is a domestic decree.4. The notification issued by the Central Government dated 17.01.2020 is a declaratory notification. It is the settled principle of law that the declaratory statute or notification would operate retrospectively unless the contrary is expressed in the statute or notification. Craies on Statute Law (Seventh Edition) states as follows:“For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective.”In Maxwell Interpretation of Statutes (Eight Edition), page 196, it is stated as follows:“...If a statute is in its nature a declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable...”5. In Fazal Begum v. Hakim Ali [AIR 1941 Lah 22] the High Court of Lahore opined, after referring to Craies on Statute Law and Maxwell Interpretation of Statutes, that the declaratory statute has retrospective effect. The Apex Court in Zile Singh v. State of Haryana and Others [(2004) SCC 1] held that presumption against retrospective operation is not applicable to declarative statute. The similar view was followed by the Apex Court in Commissioner of Income Tax 1, Ahmedabad v. Gold Coin Health Food Private Limited [(2008) 9 SCC 622] and in State of Bihar and Others v. Ramesh Prasad Verma (Dead) through Legal Representatives [(2017) 5 SCC 665].6. The notification issued by the Central Government is in the nature of declaration that UAE is a reciprocating territory for the purpose of Section 44A of the Code of Civil Procedure. Such a declaration is issued in the light of the power conferred under explanation 1 to Section 44A. The reciprocity is relatable to the bilateral agreement entered into between India and UAE on 25.10.1999. The declaration as above is a matter that is covered by the agreement. The declaration always need to be construed with reference to something in existence. That be so, it must be related to the agreement. We are in such circumstances of the view that the decree of UAE court covered by notification issued on or after 2
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5.10.1999 can be executed in Indian Courts. We hold that contrary view taken by the learned Single Judge of this Court in Manoj Moolekkudi Subramanyan's case (supra) is not a correct finding of law. Accordingly, the impugned order is set aside. The execution petition is restored to the file. The parties are directed to appear before the Family Court on 20.05.2021.The original petition is allowed.