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2022 Supreme(Online)(KER) 45925
HIGH COURT OF KERALA
C.S. DIAS, J
THE GREEN BRANCHES TRADING CO(LLC) – Appellant
Versus
SHABANA TRADING – Respondent
CRP/181/2022
SHYAM PADMAN, C.M.ANDREWS, BOBY M.SEKHAR, LAYA MARY JOSEPH, HARISH ABRAHAM, ASHWATHI SHYAM, B.N.SHIVSANKAR, TINU T.JOSEPH, ARCHANA HARIDAS, K.HOSH, P. DAS
A declaratory notification regarding UAE as a reciprocating territory has retrospective effect, allowing the execution of UAE decrees in India.
Headnote:
Reciprocity - Execution of Foreign Decree - Code of Civil Procedure, 1908 - Section 44A - Court clarified that the UAE is recognized as a reciprocating territory retroactively, allowing UAE court decrees to be executed in India, restoring the execution petition.
Fact of the Case:
The revision petitioner held a UAE decree against the respondents and sought execution in India. The execution petition was dismissed by the lower court for lack of notification declaring UAE as a reciprocating territory under Section 44A of the Code of Civil Procedure.
Finding of the Court:
The court found that the previous rulings incorrectly dismissed the execution petition and clarified that the notification regarding UAE's reciprocating status was retroactive, thus allowing the execution of decrees from UAE courts in India.
Issues: Whether the execution petition was improperly dismissed for lack of a notification declaring UAE as a reciprocating territory under Section 44A.
Ratio Decidendi: The court ruled that the notification is declaratory and retrospective, and since the UAE had been recognized as a reciprocating territory, the non-production of the notification did not invalidate the execution petition.
Final Decision: The execution petition is restored for reconsideration by the lower court.
ORDER
Aggrieved by the order in E.A. Nos.205 and 206 of
2021 in E.P.No.687 of 2011 of the Court of the I Additional District Judge, Ernakulam, the decree holder is in revision. The judgment debtors are the respondents.
2. The concise case of the revision petitioner is:
the revision petitioner is the holder of a decree dated 27.11.2000 passed by the Al Ain Federal Court of First Instance of United Arab Emirates (in short, U.A.E.), passed against the respondents. The revision petitioner put the decree to execution before the court below against the respondents. The court below dismissed the execution petition on the ground that the revision petitioner failed to produce the notification contemplated under Section 44A of the Code of Civil Procedure, 1908 (in short, 'the Code'), declaring U.A.E. as a reciprocating territory. Even though the revision petitioner filed an application to restore the execution petition with an application to condone the delay, the applications also met with the same fate of dismissal for non-production of the notification. The impugned order is improper, irregular and unsustainable in law. Hence the revision petition.
3. Heard; Sri. Shyam Padman, the learned counsel appearing for the petitioner and Sri. B.N. Shiva Shankar, the learned counsel appearing for the respondents.
4. The question is whether there is any impropriety, irregularity or illegality in dismissing the execution petition for non-production of the notification that the U.A.E. is a reciprocating territory with India. 5. The petitioner laid the decree to execution, to realise an amount of Rs.78,87,888.12 from the respondents. The respondents objected the same contending that U.A.E. is not a reciprocating territory with India as stipulated under Explanation 1 to Section 44A of the Code. The court below dismissed the execution petition for non-production of notification. Even though a restoration petition was filed, the same was also dismissed on the same ground of non-production of the notification.
6. This Court inKadheeja Kalladi Puthanpurayil v. Mohammed Naizir Abdul Aziz [ 2021 (3) KHC 157 ] has categorically laid down the law as follows:
“4. The notification issued by the Central Government dated 17.01.2020 is a declaratory notification. It is the settled principle of law that the declaratory statute or notification would operate retrospectively unless the contrary is expressed in the statute or notification. Craies on Statute Law (Seventh Edition) states as follows:
"For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective."
In Maxwell Interpretation of Statutes (Eight Edition), page 196, it is stated as follows:
"...If a statute is in its nature a declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable..."
5. In Fazal Begum v. Hakim Ali (MANU/LA/0078/1940: AIR 1941 Lah 22) the High Court of Lahore opined, after referring to Craies on Statute Law and Maxwell Interpretation of Statutes, that the declaratory statute has retrospective effect. The Apex Court in Zile Singh v. State of Haryana & Ors. (MANU/SC/0876/2004: 2004 (3) KLT OnLine 1205 (SC): (2004) SCC 1) held that presumption against retrospective operation is not applicable to declarative statute. The similar view was followed by the Apex Court in Commissioner of Income Tax 1, Ahmedabad v. Gold Coin Health Food Private Limited MANU/SC/3523/2008: (2008 (3) KLT OnLine 1140 (SC): (2008) 9 SCO 622) and in State of Bihar & Ors. v. Ramesh Prasad Verma (Dead) through Legal Representatives MANU/SC/0088/2017 (2017 (1) KLT OnLine 2023 (SC): (2017) 5 SCC 665 ).
6. The notification issued by the Central Government is in the nature of declaration that UAE is a reciprocating territory for the purpose of S. 44A of the Code of Civil Procedure. Such a declaration is issued in the light of the power conferred
