Sajid Hussain vs Adj etc.

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H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH,BAHAWALPUR.

JUDICIAL DEPARTMENT

Writ Petition No. 3164 of 2024, (Sajid Hussain Vs. Addl. District Judge, etc)

J U D G M E N T

Date of hearing. 05.10.2026.

Petitioner by:- Dr. Malik Muhammad Hafeez, Advocate.

Respondent by:- Mr. Muhammad Nadeem Bhatti, Advocate.

TANVEER AHMAD SHEIKH, J.:- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, validity and legality of judgment dated 20.01.2024, passed by learned Additional District Judge, Chishtian, District Bahawalnagar, has been assailed, who while dismissing a civil revision maintained the order dated 12.10.2023, passed by learned Civil Judge, whereby an objection petition moved on behalf of petitioner/judgment debtor seeking the dismissal of execution petition was turned down.

2.According to the brief facts gleaned out of the present petition, respondent No.3 (Al-Tahir Steel and Aluminum Trading Company LLC) moved an execution petition before the district court, seeking the implementation of a foreign judgment/decree passed in U.A.E. (reciprocating country) in a suit No.(7593 of 2018)

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Commercial Partial Sharjah in a case titled “Al-Tahir Steel and Aluminum Trading Company (LLC). On Monday, 26.02.2019 at the Court’s Headquarter in Sharjah. United Arab Emirates (U.A.E), Ministry of justice, on behalf of His Highness Sheikh Khalifa bin Zayed Al Nahyan President of the United Arab Emirates, Formed by His Excellency Judge : Hossam Hassan Al- Hammour And Secretary of the Session, Mr. Abdullah Ali Murad Al Balushi.

3.Said execution petition was marked over to learned civil judge, where the petitioner/judgment debtor moved an application seeking the dismissal of said execution petition, which was treated and dealt with as an objection petition under Section 47 of C.P.C. It was turned down vide order dated 12.10.2023, passed by learned civil judge/executing court mainly on the ground that petitioner/judgment debtor failed to deposit the decretal amount, or furnish security equivalent to the decretal amount to the satisfaction of court in terms of Order XXI, Rule 23A of C.P.C.

4.Petitioner/judgment debtor assailed the above order by way of filing a civil revision, which also met the same fate, vide impugned judgment dated 20.01.2024 passed by learned Additional District Judge, with the observations that Order XXI, Rule 23 C.P.C. does not exempt a judgment debtor from depositing the decretal amount or furnishing the security before the decision of said application.

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5.After the dismissal of said civil revision, the property of petitioner/judgment debtor was ordered to be attached by learned civil judge/executing court through order dated 09.02.2024.

6.Learned counsel for the petitioner/judgment debtor mainly focused on the points that during the proceedings for execution of foreign judgment/decree, the provision of Order XXI Rule 23-A of C.P.C. requiring the judgment debtor to deposit the decretal amount or furnish the security shall not be applicable; a foreign judgment/decree passed only by a superior court of reciprocating territory may be executed in Pakistan; since in the present case the foreign judgment was passed ex-parte that too by the court of first instance, as such is not executable in Pakistan; even otherwise the said foreign judgment/ decree falls within the exceptions enumerated in Section 13 of C.P.C. The learned counsel placed reliance upon case titled “Nadeem Farooq and others Versus Newze Land Electronic Trading Co. LEE Sharja” (PLD 2017 Supreme Court 95).

7.Conversely, the learned counsel for respondent No.3 (decree holder) controverted the above submissions vehemently and maintained that although the decree was passed by the court of first instance, but it was not challenged before upper forum by petitioner/judgment debtor, hence attained finality, therefore, it shall be executable in the manner as if it has been passed by a superior court of reciprocating

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territory; added that the present petition has no force, hence liable to be dismissed with cost.

8.Arguments heard. File perused.

9.The terms “foreign Court” and “foreign Judgment” have been defined in Section 2(5) and 2(6) of C.P.C., which read as below:- Sec. 2(5) C.P.C.

“(5) “foreign Court” means a Court situate beyond the limits of Pakistan which has no authority in Pakistan and is not established or continued by the Federal Government.

Sec. 2(6) C.P.C.

(6)“foreign judgment” means the judgment of a foreign Court.

The word “foreign judgment” has to be given liberal and extensive meaning so as to cover therein an order which is executable under Section 44-A of C.P.C.

10.The first question to be determined by this Court is as to whether provision of Order XXI Rule 23 C.P.C. is applicable to the execution of a judgment/decree passed by a foreign court in terms of Section 44-A of C.P.C. Both the above said provisions are produced below for better understanding:- Sec. 44-A. C.P.C.

Execution of decree passed by Courts in the United Kingdom and other reciprocating territory. (1) Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed

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in a District Court, the decree may be executed in [Pakistan] as if it had been passed by the District Court.

(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 expectations specified in clauses (a) to (f) of Section 13.

Explanation 1. “Superior Courts”. With reference to the United Kingdom, means the High Court in England, the Court of Session in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County Palatine of Lancaster and the Court of Chancery of the County Palatine of Durham.

Explanation 2. “Reciprocating territory” means (the United Kingdom and such other country or territory as] the [Federal Government] may, from time to time, by notification in the (official Gazette], declare to be 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 3. “Decree” with reference to superior Court, means any decree or judgment of such Court under which a sum of money is payable, not being a sum

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payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, and a) With reference to superior Courts in the United Kingdom, includes judgments, given and decree made in any Court in appeals against such decrees or judgments, but b) In no case includes an arbitration award, even if such award is enforceable, as a decree or judgment.”

Order XXI, Rule 23-A, C.P.C.:

23-A. An objection by the judgment- debtor to the execution of a decree shall not be considered by the Court unless:-

(a)In the case of a decree for the payment of money, he either deposits the decretal amount in Court or furnishes security for its payment:- and

(b)In the case of any other decree he furnishes security for the due performance of the decree.

11.It may be pointed out that Rule 23-A of Order XXI C.P.C. requires an objection petitioner either to deposit decretal amount or furnish the security in case of money decree, or furnish the security for the performance of decree in case of any other decree before entertaining the objection petition.

12.A foreign judgment/decree, by fiction of law, is to be treated as if it has been passed by the district court in Pakistan under Section 44-A(1) C.P.C. Said fiction created by said provision of law goes no further and is not for all the purposes, but is designed to attract and apply

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to the execution of foreign judgment/decree by district court.

13.The object of said deeming provision in sub- section 1 of Section 44-A C.P.C. seems to be to facilitate the execution of a foreign judgment/decree in Pakistan by assuming by virtue of fiction of law as if it had been passed by district court in Pakistan instead of compelling the decree holder to file a separate suit on the strength of foreign judgment/decree. Section 44-A(1) C.P.C. has to be read in conjunction with subsection 3 thereof, which ordains that execution of a foreign judgment/decree can be refused, if it falls within the exceptions mentioned in Section 13 C.P.C. Section 13 C.P.C. cannot be controlled or its effectiveness cannot be curtailed by the provision of Rule 23-A of Order XXI C.P.C. Said special provision contained in subsection 3 of Section 44-A shall exclude the applicability of general provision of Order XXI Rule 23- A of C.P.C. which is applicable generally to the decree passed in Pakistan. Even otherwise Section 44-A C.P.C. is a provision of substantive law, whereas Rule 23-A of Order XXI C.P.C. is a procedural provision framed under Code of Civil Procedure. In case of any inconsistency, the special/substantive provision shall prevail over the general/procedural provision. Executing court cannot compel the judgment debtor to comply with the provision of Order XXI Rule 23 of C.P.C. while executing the foreign judgment/decree. View adopted by both the courts below requiring the petitioner/judgment debtor to deposit the

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decretal amount or furnish the security under Order XXI Rule 23 of C.P.C., was not based upon correct interpretation of law. Reference in this regard may be had from case titled “Grosvenor Casino Limited, Shahrah-E- Kamal Ataturk Karachi, v. Abdul Malik Badruddin” (1997

SCMR 323).

14.Under Section 44-A(1) C.P.C. a foreign judgment/decree passed by superior courts of United Kingdom or any other reciprocating territory can be executed in Pakistan on the filing of certified copy thereof and it shall be executed in the manner as if it has been passed by the district court in Pakistan.

The terms “reciprocating territory” and “superior court” have been defined in explanation (1) and explanation (2) to sub-Section 3 of Section 44-A C.P.C. (supra) and envisage that the Federal Government is empowered to declare the same for the purpose of Section

44-A C.P.C.

15.In the case in hand judgment/decree has been passed ex-parte by the court of first instance at U.A.E. The Federal Government issued notification No.(S.R.O) 208(i)2007 dated 06.03.2007 through the Law, Justice and Human Rights Division (Ministry of Law) under the statutory authority granted by Section 44-A C.P.C., whereby United Arab Emirates (U.A.E.) was declared as reciprocating territory. The said notification has also defined the term “superior court” and recognized only the

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Court of Appeal (Federal Court of Appeal) of the U.A.E. as “superior court” under the said provision.

It can safely be concluded that the court of the first instance at U.A.E. cannot be regarded as “superior court”.

16.It is also pertinent to mention here that when a foreign decree/judgment is sought to be executed through district court in Pakistan, the judgment debtor may resist and assail the same on any of the grounds/exceptions mentioned in Section 13 of C.P.C., which reads as under:- “Section 13, C.P.C.”

13.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 competent 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 recognize the law of (Pakistan) 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 (Pakistan).”

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Hon’ble Supreme Court of Pakistan in a case titled “Nadeem Farooq and others Versus Newze Land Electronic Trading Co. LEE Sharja” (PLD 2017 Supreme Court 95) pronounced that in U.A.E. Federal Court of Appeal is superior court, therefore, court of the first instance cannot be construed as “superior court”.

17.Nut shall of above discussion and critical analysis was that Foreign judgment/ decree in the present case, having been passed by the court of first instance, cannot be sought to be executed in Pakistan, therefore, I accept present petition and set aside the order dated 12.10.2023, passed by learned civil judge as well as judgment dated 20.01.2024 passed by Additional District Judge in civil revision, however, petitioner may avail his remedy by filing a civil suit.

(Tanveer Ahmad Sheikh) Judge

APPROVED FOR REPORTING.

Judge

*Shahzad Ahmad Nasir*