When can a Decree passed by Indian Courts be Executed outside Indian Territory?

Vidhi Agarwal

An order or a command is synonymous for the word decree. It is basically an official order which has the backing up of law.

It is defined in section 2(2) of the Civil Procedure Code as: “a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.”

When even farther hearings must be carried before the suit can be completely disposed of, a decree is provisional. It is final when the suit is totally disposed of by such adjudication. It may be partially inconclusive and partially conclusive.

Principally, a decree means a notification of the legal implications of a specific act brought after considering all sides of the case, and additionally, it is a guarantee that the decision of the court is executed. It is the judgment reached by the judge after hearing both sides of the case on the merits and also the expression of that decision.

The latter portion of a decision constitutes a decree.

WHAT IS EXECUTION?

In the code, the word ‘execution’ has not been specified. The word “execution” literally means the method for applying or giving effect to the court’s judgment.

Sections 36 to 74 and Order XXI of the Civil Procedure Code, deal with the rules regulating the execution of decrees and orders. When a person secures a decree from a court of law against another person, his next step is to comply with the decree.

The procedure by which he moves the court to comply with the order is known as execution proceedings.

A judgment-debtor is obligated by execution to carry out the mandate of the decree or order. Execution involves giving effect to a court of justice order or decision. The execution is complete when the decree-holder gets the thing given to him by judgment, decree, or order.

Order XXI

The classification of Order XXI is as follows-

  • “Applications for execution and the process to be applied.
  • Stay of executions.
  • Mode of executions.
  • Sale of immovable property and movable property.
  • Adjudication of the claims and objections.
  • Resistance and delivery of possession.”

The provisions found in Order XXI cover various types of circumstances and include, with the exception of the decree holder, effective recourse for judgment-debtors, claimant objectors and third parties.

WHAT IS A FOREIGN COURT, FOREIGN DECREE AND FOREIGN JUDGEMENT?

Section 2:

“foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;]

“foreign judgment” means the judgment of a foreign Court.

Section 44A:

[ Explanation I.-“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 3reference to any such territory, means such Courts as may be specified in the said notification.

Explanation II.-“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.]

A foreign judgment is specified in section 2 (6) of the CPC as a judgment of a foreign court. A foreign court, as provided for in section 2(5) of the CPC, means a court which is situated outside India and which is not constituted or maintained by the Central Government.

In Explanation II to Section 44A of the CPC, a foreign decree is described as a decree or judgment of that court and provides that a sum of money is payable. Such a sum of money shall not, however, constitute an amount owed in respect of taxes or other charges of a similar nature or any penalty or fine. Even if such an award is admissible as a decree or judgement, it does not require an arbitral award.

Explanation I states what is a reciprocating territory where the decree can be executed or whose decree can be executed here.

WHEN CAN A DECREE BE EXECUTED OUTSIDE INDIA (SECTION 45)?

Section 45:

“Execution of decrees outside India -So much of the foregoing sections of this Part as empowers a Court to send a decree for execution to another Court shall be construed as empowering a Court in any State to send a decree for execution to any Court established by the authority of the Central Government [outside India] to which the State Government has by notification in the Official Gazette declared this section to apply.”

Explanation: Section 45 of the Code applies to the execution outside the jurisdiction of India of decrees. It states that a Court has the right to submit a decree to a Court outside India for execution that has been created by the regulation of the Central Government.

It should be established that, by notification in the Official Gazette, the State has confirmed that that section can adhere to the Court The following characteristics are provided by a clear reading of the aforementioned provision:

  • The decree to be implemented should be from the Indian Court and should be for execution in a foreign territory.
  • In such a foreign territory, the Central Government should have created a transferee court.
  • By notification in the Official Gazette, the State Government should have announced that this section will be applicable to the said foreign court.

Thus, the clause mandates the prerequisite requirements for the execution outside the country of an Indian decree. Consequently, in the absence of any of the conditions referred to in Section 45 above, the Indian Court does not have authority to give its decree for execution to a court which is not located in India.

In M/S. M.M Knitwears Pvt. Ltd. Decree Holder v. Sarl Texeurop Judgment Debtor, it was observed that Section 45 refers to the enforcement of decrees outside India that require a court in any state to be authorised to submit a degree of enforcement to any code established by a central government authority outside India to which a declared section has been notified in the Official Gazette to apply.

Hence, the prayer for execution of the decree in France was allowed as the court of competent jurisdiction.

In Mahalakshmi v. P.S Rajeswari Alias Santha Bai, it was observed that Section 45-A of the Code of Civil Procedure did not replace or replace the other clauses which would continue to apply and that, as a result, action could be taken immediately under the Code of Civil Procedure, treating as a decree the mortgage debt of 27 January 1965.

Even if, after the French Code (Civil) was repealed, there are any defects with regard to the issue of the commandment, execution may be taken immediately by invoking the provisions of the Code of Civil Procedure. Section 45-A is an extra clause which does not prohibit the enforcement of other clauses relating to decrees in the Code of Civil Procedure.

*Execution of a Decree under Order XXI (latestlaws.com)

*Execution Decree(blog.ipleaders)

*The Code of Civil Procedure,1908