JUDGMENT :

N.V. Anjaria, J.

Heard learned advocate Mr. Vivek Gupta for the petitioner and learned advocate Mr. Aditya Krishnamurthy with learned advocate Mr. Harsh Parekh for the respondent, at length.

2. The challenge in the present Special Civil Application filed under Article 227 of the Constitution, is directed against order dated 4.8.2021 below application Exhibit 65 in Execution Application No.161 of 2019 passed by the Principal Senior Civil Judge, Jamnagar - the Commercial Court, whereby the prayer of the petitioner to hold that the said executing court did not have the jurisdiction to entertain and decide the execution proceedings, came to be negatived.

2.1 The respondent herein - Ultrabulk A/S is the execution petitioner and the decree-holder in whose favor the decree dated 9.11.2017 is passed by the High Court of Justice, Queen’s Bench Division of England and Wales – the Commercial Court, for a sum equivalent USD 42,59,395/- with interest.

3. The facts in the background stated in the nutshell are that the petitioner had executed irrecoverable personal guarantee on behalf of the Gujarat NRE Coke Limited. Since the said company failed to pay the dues, the suit came to be instituted by the respondent in English Commercial Court, resulting into decree as aforesaid. It is under Section 44A of the Code of Civil Procedure, 1908 (CPC) that the said decree is presented for execution before the Commercial Court at Jamnagar as the decree of reciprocating territory.

3.1 It may be stated that the execution proceedings were previously initiated before the Commercial Court, Rajkot being Execution Petition No.4 of 2018, which came to be transferred at Jamnagar and renumbered as Execution Application No.161 of 2019. It is relevant to state that before the Rajkot Commercial Court also application Exhibit 19 was filed seeking similar declaration that the Commercial Court did not have the jurisdiction to execute the decree. The prayer was rejected by the said court by order dated 10.4.2019. That order was challenged by the petitioner - judgment debtor by filing Special Civil Application No.8334 of 2019 which came to be dismissed by Division Bench of this Court by order dated 26.8.2019. The details in that regard are mentioned in the later part of this order.

3.2 It appears that the order of the Division Bench was carried before the Supreme Court in Special Leave Petition and pursuant to the order passed by the Supreme Court granting liberty to raise contention about the jurisdiction of the Commercial Court to entertain execution petition, the Execution Application No.161 of 2019 came to be filed. It resulted into order impugned herein.

4. In application Exhibit 65 as well as in the memorandum of present petition, grounds raised to assail the impugned order are inter alia that Section 6 of the Commercial Courts Act, 2015 which deals with the jurisdiction of the commercial court does not take within its sweep the execution petitions. The ambit of provisions of the commercial court, it was submitted, excludes the power of execution and executory power cannot be exercised by the commercial courts.

4.1 It was next submitted that as per Section 16 of the Commercial Courts Act, certain provisions of Code of Civil Procedure, 1908, as per the Schedule, came to be amended to be applied to the suits instituted before the commercial court. It was submitted that the Section 44A is not amended, and that the provisions amended by virtue of Section 16 do not contain any amendment in relation to execution, which are governed under the provisions of Sections 36 to 74 and Order XXI, CPC. It was therefore, sought to be deduced that commercial courts are not vested with powers of execution. It was contended that the execution decrees of the commercial courts would be governed by the regular provision of CPC and the decrees have to be executed before the court exercising original jurisdiction to entertain the execution petition.

4.2 Learned advocate for the petitioner