w w w . L a w y e r S e r v i c e s . i n



Radhamani India Ltd., Decree-holder v/s Imperial Garments Ltd


Company & Directors' Information:- IMPERIAL GARMENTS LIMITED [Amalgamated] CIN = U18101TG2000PLC034077

Company & Directors' Information:- D & H INDIA LIMITED [Active] CIN = L28900MH1985PLC035822

Company & Directors' Information:- D R GARMENTS (INDIA) PRIVATE LIMITED [Active] CIN = U18101GJ2005PTC046010

Company & Directors' Information:- R. R. GARMENTS LIMITED [Active] CIN = U51900MH1995PLC095544

Company & Directors' Information:- S G GARMENTS LIMITED [Active] CIN = U18101WB2004PLC098193

Company & Directors' Information:- K K P GARMENTS PRIVATE LIMITED [Active] CIN = U65921TZ1994PTC005334

Company & Directors' Information:- RADHAMANI INDIA LTD [Active] CIN = U74999WB1984PLC037863

Company & Directors' Information:- B K GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2001PTC109850

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- N K GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2000PTC107093

Company & Directors' Information:- K. D. GARMENTS PRIVATE LIMITED [Active] CIN = U18109WB2005PTC101896

Company & Directors' Information:- G AND A GARMENTS PVT LTD [Strike Off] CIN = U18101PB1995PTC016121

Company & Directors' Information:- V H GARMENTS PRIVATE LIMITED [Active] CIN = U52322MH2008PTC181066

Company & Directors' Information:- M S GARMENTS PRIVATE LIMITED [Active] CIN = U74899DL1991PTC046660

Company & Directors' Information:- S. S. GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL1996PTC083315

Company & Directors' Information:- R K GARMENTS PRIVATE LIMITED [Active] CIN = U18100GJ1994PTC023240

Company & Directors' Information:- G. M. GARMENTS PRIVATE LIMITED [Active] CIN = U18109DL2006PTC152683

Company & Directors' Information:- D AND D GARMENTS PRIVATE LIMITED [Active] CIN = U74899DL1975PTC007923

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- J S GARMENTS (INDIA) PRIVATE LIMITED [Active] CIN = U74900WB2009PTC135262

Company & Directors' Information:- K. B . GARMENTS PRIVATE LIMITED [Active] CIN = U18109WB2011PTC166954

Company & Directors' Information:- A K GARMENTS PRIVATE LIMITED [Active] CIN = U17120DL2015PTC282847

Company & Directors' Information:- D P GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18101DL2004PTC129479

Company & Directors' Information:- V S GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2005PTC143084

Company & Directors' Information:- P AND P GARMENTS PVT LTD [Under Process of Striking Off] CIN = U18101DL2005PTC143556

Company & Directors' Information:- V S GARMENTS PRIVATE LIMITED [Active] CIN = U18101HR2005PTC068124

Company & Directors' Information:- L. H. GARMENTS PRIVATE LIMITED [Strike Off] CIN = U17121KA2011PTC060761

Company & Directors' Information:- K R GARMENTS PRIVATE LIMITED [Strike Off] CIN = U17111WB1998PTC087046

Company & Directors' Information:- T & A GARMENTS PVT LTD [Strike Off] CIN = U52321TN1993PTC025318

Company & Directors' Information:- P. S. GARMENTS PRIVATE LIMITED [Active] CIN = U18204DL2007PTC164238

Company & Directors' Information:- S. A. GARMENTS PRIVATE LIMITED [Active] CIN = U17121DL2007PTC165007

Company & Directors' Information:- T S GARMENTS PRIVATE LIMITED [Active] CIN = U51494DL1996PTC076668

Company & Directors' Information:- GARMENTS INDIA PVT LTD [Strike Off] CIN = U51909GJ1979PTC003310

Company & Directors' Information:- I G S GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18101DL2004PTC128723

Company & Directors' Information:- M. P. GARMENTS PRIVATE LIMITED [Active] CIN = U17291DL2007PTC164129

Company & Directors' Information:- K. S. GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2007PTC164404

Company & Directors' Information:- B G GARMENTS PRIVATE LIMITED [Active] CIN = U74899DL2005PTC142488

Company & Directors' Information:- S P GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18101DL2003PTC120709

Company & Directors' Information:- P N GARMENTS PRIVATE LIMITED [Strike Off] CIN = U51311DL2004PTC127524

Company & Directors' Information:- J B GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18101PB1996PTC017533

Company & Directors' Information:- V P GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18109DL2012PTC233293

Company & Directors' Information:- S T GARMENTS PRIVATE LIMITED [Active] CIN = U18109DL2015PTC277043

Company & Directors' Information:- G A IMPERIAL INDIA PRIVATE LIMITED [Strike Off] CIN = U45400DL2014PTC263668

Company & Directors' Information:- P L GARMENTS PRIVATE LIMITED [Active] CIN = U17120DL2013PTC248417

Company & Directors' Information:- M. K. GARMENTS PRIVATE LIMITED [Active] CIN = U17291DL2007PTC164395

Company & Directors' Information:- R A GARMENTS PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U18101DL2003PTC123385

Company & Directors' Information:- C S GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2005PTC134787

Company & Directors' Information:- B L GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2005PTC136912

Company & Directors' Information:- B D S GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2005PTC137898

Company & Directors' Information:- T G GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18101DL2005PTC143392

Company & Directors' Information:- G P S GARMENTS PRIVATE LIMITED. [Active] CIN = U18101DL2006PTC149330

Company & Directors' Information:- G P GARMENTS PRIVATE LIMITED [Active] CIN = U18101DL2007PTC161067

Company & Directors' Information:- I B GARMENTS PRIVATE LIMITED [Active] CIN = U51909DL2013PTC257044

Company & Directors' Information:- G P S GARMENTS PRIVATE LIMITED. [Active] CIN = U74110DL2006PTC149330

Company & Directors' Information:- A G GARMENTS PRIVATE LIMITED [Active] CIN = U51300DL2013PTC257609

Company & Directors' Information:- V R V GARMENTS PRIVATE LIMITED [Strike Off] CIN = U51311DL2008PTC182256

Company & Directors' Information:- M V GARMENTS PRIVATE LIMITED [Strike Off] CIN = U74899HR2005PTC141797

Company & Directors' Information:- A AND R GARMENTS PRIVATE LIMITED [Strike Off] CIN = U17120HR2013PTC049037

Company & Directors' Information:- V K GARMENTS PRIVATE LTD [Strike Off] CIN = U18101DL1981PTC012410

Company & Directors' Information:- P M P GARMENTS PRIVATE LIMITED [Strike Off] CIN = U18101DL2005PTC134811

Company & Directors' Information:- A S GARMENTS PRIVATE LIMITED [Active] CIN = U17212CH1992PTC012350

Company & Directors' Information:- V R GARMENTS PVT LTD [Strike Off] CIN = U18101CH1991PTC011345

Company & Directors' Information:- S B GARMENTS PRIVATE LIMITED [Strike Off] CIN = U51311DL2005PTC141954

    E.C. 24 of 2002

    Decided On, 18 March 2004

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE JAYANTA KUMAR BISWAS

    For the Appearing Parties: Surojitnath Mitra, Amitesh Banerjee, B. Sinha Roy, D. Basak, Advocates.



Judgment Text

(1.) 1. By this application the decree-holder seeks execution of a decree that has been filed in this Court under Section 44-A of the Code of Civil Procedure," 1908 (in short "the CPC"),


(2.) The decree was passed on April 10th, 2001 by the learned Subordinate, Judge, 1st Court at Dhaka in Money Suit No. 30 of 1994. The suit was filed by the decree-holder against the judgment-debtors. The decree was for USS 55,669.20 with interest at the rate of 18% per annum till realization. Judgment-debtor 1, preferred an appeal against the decree. Judgment-debtor 2, however, did not prefer any appeal. In the appeal (F.A. No. 365 of 2001) order was passed to stay the operation of the decree. For execution of the decree the decree-holder did not apply to the Court which passed the decree. On the contrary, it filed the certified copy of the decree under Section 44-A of the CPC in this Court and applied for its execution under Order 21, Rule 11 (2) of the CPC on April 24th, 2002. By an order dated August 11th, 2003 the High Court Division at Dhaka of the Supreme Court of Bangladesh modified the stay order passed in the appeal preferred by judgment-debtor 1; the stay was vacated as against judgment-debtor 2. So now the decree-holder wants to execute the decree as against judgment-debtor 2.


(3.) Learned counsel for judgment-debtor 2 raises three preliminary objections. He submits that the execution proceeding is not maintainable, because :- (1) the certificate required under Section 44-A (2) of the CPC has not been filed with the certified copy of the decree; (2) in terms of the notifications regarding superior Courts of reciprocating territory, the decree passed by the Court of the Subordinate Judge at Dhaka cannot be executed through this Court; (3) without obtaining prior leave under Order 21, Rule 22 (1) of the CPC a decree cannot be filed under Section 44-A of the CPC.


(4.) His contention is that the decree, if it were executable, should have been put into execution through the Court which passed it, and on its remaining unsatisfied to any extent, only for such unsatisfied part it could have been filed under Section 44-A of the CPC, and that too after obtaining prior leave under Order 21, Rule 22 (1) of the CPC; and in such case it could have been filed only in a Court having same status and jurisdiction as that of the Court which passed it. So the certificate to be produced under Section 44-A(2) of the CPC should be a certificate issued by the Court which passed the decree, recording that the decree remained unsatisfied to the extent mentioned therein for want of property of the judgment-debtor against which it could have been executed. A mere information slip containing the information that the decree was not put into execution in the Court which passed it is no certificate at all. To show what should be the nature and form of the certificate he relies on the decision in Lakhpat Rai Sharma v. Atma Singh, AIR 1962 Punj 228. Regarding the requirement of prior leave under Order 21, Rule 22 (1) of the CPC he relies on the decisions in Indian and General Investment Trust Ltd. v. Sri Ramchandra Mardaraja Deo, Raja of Khalikote, AIR 1952 Cal 508 and Algemene Bank, Nederland NV v. Satish Dayalal Choksi, AIR 1990 Bom 170.


(5.) Regarding the nature and form of the certificate learned counsel for the decree- holder submits that the information slip filed together with the certified copy of the decree is sufficient. For this he relies on the decision in M/s. International Woollen Mills v. M/s. Standard Wool (U.K. Ltd.), AIR 2000 PandH 182. He submits that in terms of the relevant notifications regarding reciprocating territory both this Court and the Court of the Subordinate Judge at Dhaka fall within the category of specified superior Courts, and hence the decree can be filed in this Court for its execution through this Court. He disputes the correctness of the contention that without obtaining prior leave under Order 21, Rule 22 (1} of the CPC the decree could not have been filed in this Court under Section 44A of the CPC, or that the decree-holder was not entitled to apply for its execution without obtaining such prior leave.


(6.) For deciding the first contention of learned counsel for judgment-debtor 2 a brief discussion on Section 44A of the CPC will be useful. Section 44A of the CPC empowers a competent District Court in India to execute a decree of any of the superior Courts of any reciprocating territory. The decree executable under this section has to be a decree 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 or a sum payable under an award made in an arbitral proceeding. In a sense such a decree should be a pure and simple money decree by a Civil Court. It is therefore clear that any and every decree passed by a superior Court of a reciprocating territory cannot be executed through a competent District Court in India.


(7.) Section 44A of the CPC does not say that before filing a decree in a competent District Court in India, the decree-holder is required to put it into execution in the Court which passed if. From it, read with Section 13 of the CPC, it appears that the legislature intended to give two options to the decree-holder - (1) to execute the decree through the Court which passed it, or (2) to execute it wholly or partly through a competent District Court in India. In my view the purpose of Section 44A of the CPC will be defeated, if it is held that a decree of the nature mentioned in it cannot be filed in a competent District Court in India without first putting it into execution in the Court which passed it.


(8.) As to the nature and form of the certificate that is required to accompany the certified copy of the decree, I find that the statute has not prescribed any form. The purpose of the certificate has been specifically mentioned in Section 44A(2) of the CPC. It will be a conclusive proof of the extent of satisfaction or adjustment of the decree. It is therefore clear that the certificate in any form, issued by the Court which passed the decree, will be a certificate for the purpose of Section 44A{2) of the CPC. When the decree-holder obtains an information slip from the Court which passed the decree to show that the decree was not put into execution. there is no reason to say that such information slip will not be a sufficient certificate for the purpose of Section 44A(2) of the CPC; for a decree of the nature mentioned in Section 44A of the CPC can be put into execution either in the superior Court (of the reciprocating territory) which passed the decree, or in a competent District Court in India.


(9.) The decision in Lakhpat Rai's case, AIR 1962 Punjab 228 does not advance the argument of learned counsel for Judgment- debtor 2. In this decision nothing was decided regarding the nature and form of the certificate the decree-holder is required to file under Section 44A(2) of the CPC. In Lakhpat Rai's case the principal question for decision was whether the decree-holder was entitled to execute the decree without getting it transferred by the superior Court of the reciprocating territory which passed it.


(10.) The decision In International Woollen Mills's case, AIR 2000 Punj and Har 182 is also of no help for deciding the issue in hand. In this case also the Court was not deciding anything about the nature and form of the certificate required under Section 44A(2) of the CPC. The question arose regarding the necessity of transfer of a foreign decree; the Court held that the decree-holder was entitled to apply to the Court in India for execution of the foreign decree, without approaching the Court which passed the decree for its transfer or execution.


(11.) I am therefore of the view that the first contention raised by learned counsel for judgment-debtor 2 has no merit. The information slip dated April 7th, 2002 produced by the decree-holder together with the certified copy of the decree can be accepted as the certificate required under Section 44A (2) of the CPC. In the information slip (issued by the Court which passed the decree), it has been stated that the decree-holder did not apply for execution of the decree to the Court that passed it. The purport of the information slip is therefore very clear. On the basis of this information slip the decree- holder is entitled to say that no part of the decree has been satisfied, and the decree- holder is entitled to execute it for realiza- tion of the entire decreed amount.


(12.) Regarding the forum chosen by the decree-holder to file and execute the decree, I find that by a notification dated February 11th, 1976 the Central Government declared the Peoples' Republic of Bangladesh to be a reciprocating territory for the purpose of Section 44A of the CPC. In this notification the Supreme Court and the Courts of the District and Sub-ordinate Judges in Bangladesh were specified as superior Courts of Bangladesh. Therefore a decree passed by any of these Courts in Bangladesh can be filed and executed under Section 44A of the CPC. The decree has to be filed, and the execution proceeding has to be initiated in a competent District Court in India.


(13.) The phrase "District Court" has not been define in the CPC. The word "district" has, however, been defined in Section 2(4) of the CPC. It means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (in the provisions of the CPC called a "District Court"), and it includes the local limits of the ordinary original civil jurisdiction of a High Court. This means that if the decree-holder is otherwise entitled to invoke the ordinary original civil jurisdiction of a High Court, then he can file the decree in such High Court under Section 44A of the CPC.


(14.) Therefore, it cannot be said that a decree passed by the Court of a Sub-ordinate Judge in Bangladesh can be filed under Section 44A of the CPC only in a Court of co-oirdinate jurisdiction. Decree passed by any superior Court of Bangladesh (as specified in the notification) can be filed under Section 44A of the CPC in a District Court in India, which includes a High Court that possesses ordinary original civil jurisdiction. Hence, I am of the view that the second contention of learned counsel for judgment-debtor 2 has also no merit. The decree-holder is entitled to execute the decree passed by the 1st Court of the Sub-ordinate Judge at Dhaka through this Court.


(15.) As to the third contention, I find that the decision in Indian and General Investment Trust's case, (AIR 1952 Cal 508) does not help judgment-debtor 2 in any manner whatsoever. The question for decision in this case was whether according to practice of this Court an application under Section 44A of the CPC read with Section 39 thereof could be made ex parte before an officer of this Court. It was held that an application made under Section 44A of the CPC should be dealt with by the Court, and not by one of its officers; and it should be dealt with upon notice to the judgment-debtor. Nothing was decided in this case regarding requirement of obtaining prior leave by the decree holder under Order 21, Rule 22(1) of the CPC.


(16.) In Algemene Bank's case, (AIR 1990 Bom 170) the facts were like this. The Supreme Court of Hong Kong passed a decree in favour of the bank. It filed the decree (apparently) in the Bombay High Court under Section 44A of the CPC. Thereafter it made an application under Order 21, Rule 22 of the CPC for leave to execute the decree; notice was issued. The judgment-debtdr entered appearance and contended that leave to execute the decree should not be granted, because the decree fell within the exceptions of clauses (b), (c) and (f) of Section 13 of the CPC. In this context it was held that an application for execution of a foreign decree filed under Section 44A of the CPC could be made only after obtaining leave by filing an application under Order 21, Rule 22 of the CPC.


(17.) With great respect, I am unable to | agree with the view taken by the learned Judge in Algemene Bank's case, (AIR 1990 Bom 170). Once a decree is filed under Section 44A of the CPC, it goes without saying that the decree-holder has to apply in writing for its execution; the application in writing is to be made under Order 21, Rule 11 (2) of the CPC. The Rule 22 stage of Order 21 of the CPC would arise only when such an application is made. When the decree- holder prays for issue of process in execution of the decree, it is only then that ordj- narily the Court shall not issue any process, without first issuing a notice under Order 21, Rule 22(1) of the CPC to the judgment- debtor requiring him to show-cause why the decree should not be executed against him. At this stage also while, of course, the Court is required to issue the notice

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to the judgment-debtor, the decree-holder has a right to persuade the Court executing the decree into issuing a necessary process in execution, before issuing notice to the judgment- debtor. A process in execution of the decree can be issued in such a case to prevent the ends of justice being defeated. There is absolutely no scope to file an application un-der Order 21, Rule 22 of the CPC. There is also no scope to pass an order under Order 21, Rule 22 of the CPC in the absence of an application under Order 21, Rule 11(2) of the CPC, preceded by the filing of the decree under Section 44A of the CPC. This, however, does not mean that the judgment- debtor should not or rather would not get any opportunity to contest the execution proceeding by raising all the grounds available, including the grounds mentioned in Section 13 of the CPC. I therefore find no merit also in the third contention of learned counsel for judgment-debtor 2, (18.) For the above reasons the preliminary objections raised on behalf of judgment-debtor 2 are hereby rejected. The execution application tiled by the decree-holder under Order 21, Rule 11(2) of the CPC shall now be heard on merit. (19.) Let the execution application come up as "Chamber Application for Final Disposal" after three weeks. (20.) Urgent certified xerox copy of this judgment and order, if applied for, may be supplied to the parties. Application allowed.
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