The principles of comity of nation demand the Indian Courts to respect the order of English Court including the interlocutory orders

Supreme Court: Dealing with the scope of Section 44A CPC in relation to the execution of decrees by a foreign court, the Court said that the principles of comity of nation demand the Indian Courts to respect the order of English Court. Even in regard to an interlocutory order, Indian Courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 CPC. The Court said that the Section 44A CPC indicates an independent right conferred on a foreign decree holder for enforcement of a decree/order in India.

It was further explained that Section 44A CPC is meant to give effect to the policy contained in the Foreign Judgments (Reciprocal Enforcement) Act, 1933. It is a part of the arrangement under which on one part decrees of Indian Courts are made executable in United Kingdom and on the other part, decrees of Courts in the United Kingdom and other notified parts of Her Majesty’s dominions are made executable in India. It is to be seen that as United Kingdom is a reciprocating territory and the High Court of Justice, Chancery Division, England being a recognized superior Court in England. Therefore, the order passed by that Court is executable in India under Section 44A of the CPC.

Regarding the argument that the decree for costs does not attract Explanation II to Section 44A CPC which concerns itself with taxation or other charges of like nature or in respect of fine or other penalty, the Court said that  Explanation II to Section 44A does not refer to the costs as contemplated under Section 35 of the CPC. The costs having been quantified have assumed the character of a money decree for costs and cannot be equated, either with a fine or penalty which is imposed on a party by the Court or taxes claimed and are taxes payable to a local authority, Government, or other charges of a like nature.

The Bench of Dr. A.K. Sikri and N.V. Ramana, JJ said that the question whether the interest on sum of decree of costs to be executed in India is a matter of substance as the interest on decree is a substantive right of the decree holder and does not concern itself with the procedural law of the forum. It is to the reciprocal advantage of the Courts of all nations to enforce foreign rights as far as practicable. To this end, broad recognition of substantive rights should not be defeated by some vague assumed limitations of the Court. When substantive rights are so bound up in a foreign remedy, the refusal to adopt the remedy would substantially deprive parties of their rights. The necessity of maintaining the foreign rights outweighs the practical difficulties involved in applying the foreign remedy. In India, although the interest on costs are not available due to exclusion of Section 35(3), the same does not mean that Indian Courts are powerless to execute the decree for interest on costs. Indian Courts are very much entitled to address the issue for execution of the interest amount. [Alcon Electronics Pvt. Ltd. v. Celem S.A. of FOS 34320 Roujan, France, 2016 SCC OnLine SC 1444, decided on 09.12.2016]

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