Adjudication of judgment-debtor by foreign Court.

Kailasam, CJ.- This appeal is preferred by the Indian Overseas Bank, Epoh by its power agent, Joseph Ambrose, against the judgment of Ramaprasada Rao, J. in A.A.O.No. 230 of 1966.

2. The appellant filed an application under section 44-A read with Order 2, rules 54 and 66 of the Code of Civil Procedure of attachments and sale of the judgment-debtor’s immovable properties, in the District Court of South Arcot. The District Judge ordered notice and transferred it to the file of the Court of the Subordinate Judge. The decree that was sought to be executed was one that was obtained in a foreign Court., viz., the Federation of Malaysia.

3. The objection that was raised to the execution of the foreign decree was that notice under Order 21, rule 22 of the Code of Civil Procedure was mandatory before attachment could be ordered, and that, secondly the supervening insolvency of the judgment-debtor in the Federation of Malaysia was a bar to the maintainability of the execution petition. It is common ground that after the decree was passed by the foreign Court but before execution was laid in the District Court of South Arcot the judgment-debtor became insolvent.

4. The trial Court sustained the objection raised by the judgment-debtor and found that the execution petition was not competent. It held that, as the insolvency of the judgment-debtor had supervened the passing of the decree in the foreign Court before execution was levied, the execution petition was not competent The trial Court did not give any clear finding whether notice was taken before attachment was ordered. We find from the records that notice for 26th October, 1964 and attachment was ordered by the District Court on 19th August, 1964 and the matter was transferred to the Court of the Subordinate Judge on that day. The point therefore regarding want of notice is unsustainable.

5. On appeal to this Court, Ramaprasada Rao, J., dismissed the appeal holding that the supervening insolvency in the foreign State was a bar to the levy of any process in execution or otherwise against the person who was so adjudged insolvent in the foreign country. The learned Judge followed the decision of this Court in Uthamram v. Abdul Kasim Co.1.

6. In this appeal Mr. C. Ramakrishnan, learned counsel for the appellant questions the correctness of the decision of the trial Court as well as that of the learned single Judge of this Court. His submission is that under section 44-A which was enacted by section 2 of the Code of Civil Procedure Amendment Act (VIII of 1933) it was provided that, where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in the State as if it had been passed by the District Court. It is not disputed that the decree is that of the High Court of Epoh, a superior court. It is also conceded that it is a reciprocating territory. Section 44-A is therefore applicable and the decree of the foreign Court is executable as if it had been passed by the District Court in India. Section 13 of the Code of Civil Procedure provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties. That the judgment that is sought to be executed falls within section 14 is also not disputed for it is conceded that the decision was pronounced by a Court of competent jurisdiction and that it was given on the merits of the case. The decision of the trial Court as well as that of the learned single Judge of this Court was mainly based on the decision of this Court in Uthamram v. Abdul Kasim Co.1, where it has been held that, where subsequent to the date of application for execution of a foreign decree in India against immovable properties, the debtor has been adjudged an insolvent in that foreign country, an execution cannot be laid against him in that country ; it would follow that it would not be maintainable in this country as well. Two quest

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