The State Government may, by notification in the Official Gazette, declare that the decree of any revenue Court in any part of India to which the provisions of this Code do not extend, or any class of such decrees, may be executed in the ‘State as if they had been passed by Courts in that State.
44-A. Execution of decrees passed by Courts in reciprocating territory:
(1) Where a certified copy of a decree of any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.
ADVERTISEMENTS:
(2) Together with the certified copy of the decree shall be filed a certificate from such superior court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.
(3) The provisions of section 47 shall, as from the filing of the certified copy of the decree, apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.
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Explanation 1:
ADVERTISEMENTS:
‘Reciprocating territory’ means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and ‘superior courts’ with reference to any such territory, means such courts as may be specified in the said notification.
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 fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.
Fiction enacted nothing to do with limitation:
ADVERTISEMENTS:
When a statutory provision creates a fiction, it is first necessary to find out the purpose for which it was created, in order to understand the scope and implication of the fiction. The whole purpose of the fiction created by the words, ‘as if it had been passed by the District Court’ in section 44-A (l) of the Code, clearly in the context of the preceding sections appears to determine or fix the particular District Court in India to execute the foreign decree or judgment and attract to its execution by such Court the manner of procedure that governs execution of its own decrees.
The purpose and ambit of the fiction go no further. The law of limitation as contained in the Limitation Act is a procedural law and as lex fori will, however, apply independently of section 44-A (1) to execution in India of a foreign judgment of a superior court in a reciprocating territory. But the effect of its application is a different thing which is a matter of construction.
The jurisdiction of the District Court in this country to execute a foreign judgment arises from and is exercisable by the filing of a certified copy of the foreign decree or judgment. It is only thereafter, and never until then the procedural laws as to lex fori will be attracted to execution.
The Limitation Act can apply possibly to such execution only after filing a certified copy of the foreign decree or judgment as required by section 44-A (l). Section 44-A(l) of the Code does not require the filing of a non-satisfaction certificate as a condition for the District Court to assume jurisdiction. The requirement relates merely to procedure. There is no limitation for filing a certified copy of a foreign decree or judgment under section 44(1) of the Code.
Notice to the judgment-debtor is essential before execution of a foreign decree. If the foreign decree has been obtained by fraud, an Indian court is not bound to execute it. Not only this, an application for execution under section 44-A may be resisted on any of the grounds mentioned in section 13 which has earlier been discussed in detail.
