The judgment of a foreign Court can be executed in India under Section 44A of CPC if it is a judgment on the merits of the case, as per Section 13(b) of CPC.

A.K. Sikri, J.-

The respondent herein (hereinafter referred to as the decree holder) has obtained a decree against the appellant herein (hereinafter referred to as the judgment debtor) from the Queens Bench Division of the High Court of United Kingdom in case No. 1997 M. No. 1548. The judgment is dated 13.11.1998 and decree is dated 23.11.1998. The decree holder which is a bank had filed a suit for recovery of a sum of $ 5,470,212 along with interest thereon against the judgment debtor• before the Queens Bench Division of High Court of United Kingdom. It was pleaded that this amount was due to the bank from Munradtech Industrial Generators Limited (hereinafter referred to as the company) of which judgment debtor was one of the Directors judgment debtor was also impleaded as one of the defendants in the said suit on the ground that he had executed a guarantee dated 4.2.1993 ensuring the payment of the bank dues. The suit was filed under the provisions of Order 14, RSC. This is akin to Order 37 of the Indian Code of Civil Procedure and provides for summary procedure in such matters. After receiving the summons, the judgment debtor had engaged some attorneys and had also filed application for leave to defend setting out his defence. However, no affidavit in support thereof was filed nor anybody appeared on behalf of. the defendant before the Queens Bench Division of High Court, after the participation in the proceedings at the initial stage. In the application for leave to defend, the judgment debtor had not disputed the amounts due from the company. He also did not deny that he had executed guarantee deed. His defence, however, was that he along with his brother Deepak Khilnani were running a group of companies. In the UK and other European countries business was being run and controlled by Deepak Khilnani, whereas the other companies of this group which were in the Middle East countries were managed by the defendant. He pleaded that Deepak Khilnani did not disclose the true position regarding financial conditions of the group of companies in Europe and persuaded him to execute the guarantee deed by misrepresenting that it was only a formality to obtain further facilities from the bank. He, therefore, became victim of undue influence and fraud practised upon him by his brother of which the decree holder had constructive notice and as surety he wanted to wriggle out of the guarantee deed on the basis of such a plea.

2. Perusal of the judgment passed by the QDB of the High Court in London would reveal that the learned Judge examined this plea extensively in the light of material placed on record but rejected the same holding that such a plea that the judgment debtor was defrauded by his brother or there was undue influence exercised upon him by using ostensible trust and confidence. did not hold any water. This conclusion is supported by the reasons. As no appeal! revision was preferred against this judgment and decree, the same became final.

3. Armed with this judgment and decree, the decree holder filed the execution petition in this Court under Order 21 Rule 22, CPC of the Code of Civil Procedure seeking permission to execute the same. Judgment debtor filed application under Section 47 read with Order 21 Rule 22, CPC raising objections to the maintainability of the execution petition. It is not in dispute that the main thrust of the objection was that since the judgment in question had not been given on merits of the case, the same was not conclusive and, thus, unexecutable in view of provisions of Section 13(b), CPC. Though one more objection was raised before th(!learned Single Judge namely decree could not be executed for want of permission of RBI under FERA, it is not necessary to go into such objection inasmuch as learned Single Judge has not decided the question of applicability of FERA in the impugned judgment dated 9.11.2005 passed by him and has issued notice to RBI for determining this question. The first plea ta