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2018 Supreme(Cal) 608
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
JYOTIRMAY BHATTACHARYA, ARIJIT BANERJEE, JJ.
Dinesh Viniyog Limited & Other - Petitioners
Versus
The Oriental Gas Co. Limited & Others - Respondents
GA. No. 215 of 2018, APO. No. 517 of 2017 & E.C. No. 323 of 2011
Decided On : 24-09-2018
For the Appellants :S. N. Mitra, Sr. Advocate, Shankarshan Sarkar, Advocate.
For the Respondents:R. Banerjee, Sr. Advocate, Shaunak Mitra, P. Shome, Advocates.
The main legal point established in the judgment is the computation of the period of limitation for execution of a foreign decree under Section 44A of the Code of Civil Procedure, and the completeness of the decree for enforcement.
Headnote:
Limitation - Execution of Foreign Decree - Section 44A, Code of Civil Procedure - Limitation Act, 1963 - [LIMITATION] - [EXECUTION OF FOREIGN DECREE] - [Section 44A of CPC, Limitation Act, 1963] - The judgment discusses the applicability of the Limitation Act, 1963 in the execution of a foreign decree under Section 44A of the Code of Civil Procedure. The court analyzes the period of limitation for execution of the decree, the effect of interim orders on the computation of limitation, and the completeness of the decree for enforcement. The court concludes that the second execution application was filed within the prescribed period of limitation, considering the date when the decree became enforceable.
Fact of the Case:
The appellant initiated legal action under the English Companies Act, 1985 against the respondent in the High Court of Justice, Chancery Division, Companies Court, London, U.K. The legal proceedings were dismissed with cost by an order dated 12 March, 1998. The decree holders filed an execution case in this Court for enforcement of the decree. The second execution application was contended to be barred by limitation by the judgment debtors.
Finding of the Court:
The court found that the second execution application was filed within the prescribed period of limitation, considering the date when the decree became enforceable. The court rejected the contention that the interim order stayed the execution of the decree, and held that the second execution application was not a continuation of the earlier execution case. The court also concluded that the decree became complete only upon the completion of taxing of the costs on 8 October, 2001, and the second execution application was within the prescribed period of limitation.
Issues: The issues involved the computation of the period of limitation for execution of the foreign decree, the effect of interim orders on the computation of limitation, and the completeness of the decree for enforcement.
Ratio Decidendi: The court held that the second execution application was filed within the prescribed period of limitation, considering the date when the decree became enforceable. The court also concluded that the decree became complete only upon the completion of taxing of the costs on 8 October, 2001, and the second execution application was within the prescribed period of limitation.
Final Decision: The appeal was dismissed, and the execution proceeding remained stayed for a period of three weeks to allow the appellants to approach the higher forum.
ARIJIT BANERJEE, J.
1. This is an appeal against the judgment and order dated 5 September, 2017 passed by a Learned Single Judge in E.C. No. 323 of 2011. The operative portion of the said judgment and order is as follows:-
“Under such circumstances, I am unable to accept the submission of the judgment – debtors that this application is barred by Limitation.
Mr. Rajarshi Dutta, Advocate, Bar Library Club, is appointed as a receiver over and in respect of the remaining assets in Annexures O and P of the tabular statement as directed by the earlier order dated 17th March 2009 which has since been affirmed by the Division Bench. The receiver shall file a report on the adjourned date. The receiver shall be entitled to an initial remuneration of 1500 GMs to be paid by the decree-holders. All costs, charges and expenses incurred by the decree-holder in such regard shall be added to their claim in this proceeding.
An affidavit of assets by the judgment-debtors in Form No. 16A of Appendix – E of the Code of Civil Procedure shall be filed by the adjourned date. The matter stands adjourned till 31st October 2017.”
Being aggrieved, the judgment-debtors are before us by way of the instant appeal.
2. Dinesh Viniyog Limited, the appellant number 1 had initiated legal action under the English Companies Act, 1985 against amongst others, the Oriental Gas Company Limited being the respondent number 1 in the High Court of Justice, Chancery Division, Companies Court, London, U.K. The said legal proceedings were dismissed with cost by an order dated 12 March, 1998. Paragraph 4 of the said order provided that “all such costs orders referred to at paragraphs 2 (a) to 2 (j) and paragraph 3 above be taxed if not agreed on the standard basis and the Petitioners be jointly and severally liable for the same.” It is not in dispute that the cost orders were assessed in the sum of approximately £ 374,000. It would also appear from the certificate under Section 10 of the Foreign Judgments (Reciprocal Enforcement) Act, 1933 dated 7 November, 2005 issued by the Registrar of Enforcement, Supreme Court of Judicature, Chancery Division, London, U.K that a sum of £ 387,727 approximately has been received by the decree holders towards part payment of the Judgment debt and accrued interest on 28 November, 2001. It will also appear from the same certificate that a sum of £ 124,015 approximately (including interest @ 8% per annum from 28.11.2001 till the date of the certificate) remained outstanding under the judgment.
3. In 2006 the decree-holders i.e Oriental Gas Company Limited and others filed an execution case in this Court before the Learned Single Judge being E.C. No. 30 of 2006 for enforcement of the aforesaid decree of the English Court to the extent the same remained unsatisfied. The amount shown as due to decree holders under the English Court’s decree in the Tabular Statement filed in the execution case was Rs. 1, 16, 16,609/-. The prayers in the execution application which was registered as G.A. No. 3846 of 2006 were as follows:-
“(a) Receiver be appointed over the properties and assets mentioned in Annexures ‘O’, ‘P’ and ‘Q’ of the supporting affidavit with a direction to sell the same and pay the sale proceeds to the judgment creditors in protanto satisfaction of the decretal dues.
(b) The properties and assets mentioned in Annexures ‘O’ ‘P’ and ‘Q’ of the supporting affidavit be attached for payment of the decretal dues.
(c) Injunction restraining the judgment debtors, their servants and agents from in any way transferring alienating, disposing of or encumbering or dealing with the properties and assets mentioned in Annexures ‘O’ ‘P’ and ‘Q’ of the supporting affidavit.”
4. On the said execution application the learned Single Judge passed an order dated 2 July, 2008 recording certain defects in the application. The operative portion of the said order reads as follows:-
“All the other requirements are present but for want of the requirement set out above t
