Morlays (B'Ham) Ltd. v. Roshanlal Ramsahi

K.K Desai, J.:— [His Lordship after stating the facts and dealing with points not material to this report proceeded.]. Mr. Parpia also argued that on a true construction of the provisions of s. 44A of the Code I should hold that the decree in question is not nullity and the defendants' contention was incorrect. The relevant part of s. 44A provides as follows:—

“44A. (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 in a District Court, the decree may be executed in India as if it had been passed by the District Court.

(3) … 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.”

2. Mr. Parpia's contention is that the true meaning of the words “as if” as used in sub-s. (1) is that the decree in favour of the plaintiffs must be treated as having been passed by this Court and consequently it must be held to have been passed by a Court of competent jurisdiction.

3. In my view that contention is contrary to and impossible having regard to the provision in sub-s. (3) which provides that this Court as executing Court shall refuse execution of the plaintiffs' decree if it falls within any of the exceptions specified in cls. (a) to (f) of s. 13. As I have already held, the decree in question falls within exception (a) of s. 13 and is a decree not of a Court of competent jurisdiction. The words “as if” are used in sub-s. (1) to make the whole scheme of O. XXI applicable in respect of execution of decrees of foreign Courts mentioned in sub-s. (1). The words “as if” have no wider meaning as is suggested by Mr. Parpia.

4. [The rest of the judgment is not material to this report.]

Solicitors for the plaintiff: Mulla & Craigie & Caroe.

Solicitors for the defendants: Vachha & Co.

5. Application dismissed.