1. MUNIB AHMED KHAN, J.--- This execution application has been filed for recovery of $ 72,107, on the basis of judgment of divorce in Case No,DR-97-502426-C, passed by Circuit Court of Mobile County Allabama Domestic Relations Division, in case of Nuzhad Aquil Nawab v. Rehan Nawab.
2. The execution has been objected to by the other side and legal objections have been filed i,e, (i) section 44-A, C.P.C. is not applicable as there is no reciprocity between U.S.A. and Pakistan. (ii) the proceedings are hit by section 13, C.P.C. as they are barred under section 13(b), (d) and (e) C.P.C. and that the judgment, dated 9-11-1998 announced by the American Court is not final and conclusive.
3. Besides the legal objection, factual pleas have also been raised. First of all, the legal aspect of the matter is taken, as to whether the execution application is maintainable or not. During the course of hearing, learned D.A.-G. was issued a notice to assist the Court and submit as to whether there is any reciprocity between Pakistan and U.S.A. or not in terms of section 44-A, C.P.C. In consequence thereto the learned D.A.-G. has filed a statement, dated 12-11-2003 enclosing therewith a letter of Section Officer, Ministry of Law, Justice and Human Rights, Government of Pakistan, Islamabad, dated 28-10-2005, which is reproduced as under:-- "Please refer your letter No,258-K/DAG, dated 16-10-2003, on the subject mentioned above and to inform that U.S.A. is not reciprocal territory as per section 44-A of C.P.C., 1908, as no reciprocal arrangements exist between Pakistan and U.S.A. under section 44-A, C.P.C., 1908, for execution of decree."
4. Learned counsel for the decree-holder has insisted that decree is enforceable, as there are closed relation between Pakistan and U.S.A. and much assistance has been provided by Pakistan to U.S.A. in all respect, therefore, there must be some understanding towards execution of a U.S.A. decree in Pakistan. Anyhow, the learned counsel for the decree-holder has not been able to point out the legal provision to overcome section 44-A, C.P.C., which is reproduced as under:-- "44-A. Execution of decree passed by Courts in United Kingdom and other reciprocating territory.-- - (1) Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in a District Court, the decree may be executed in Pakistan as if it had been passed by the District Court.
5. (2)
6. (3)
7. Section 44-A is very clear as it specifically says, firstly, that the decree of United Kingdom is executable and, secondly, decree of reciprocating territory is executable. In the instant case the decree is of U.S.A. Court, which according to learned D.A.-G. and the letter of Section Officer, Government of Pakistan, Ministry of Law, Justice and Human Rights is not reciprocating territory, therefore, not executable.
8. The learned counsel for the judgment-debtor has referred the case of Abu A Saeed A. Islahi v. Talat Mir and 2 others reported in 1994 M LD 1370, wherein specific question regarding section 44-A of C.P.C. was dealt with and it was held that decree passed by the Court of U.S.A. would not operate as res judicata as U.S.A. was not one of the reciprocating territory within the meaning of section 44-A, C.P.C.
9. Learned counsel for the decree-holder has referred the case of Brijlal Ramjidas and another v.
10. Govindaram Gordhandas Seksaria AIR (34) 1947 PC 192. After going through the said authority. I am of the view that it is not in respect to issue involved in this execution.
11. Learned counsel has also referred the case of Munawar Ali Khan and others v. Marfani & Co. Ltd SBLR 2003 Sindh 1048 and has submitted that since both the parties have submitted to the jurisdiction of U.S. Court, therefore, they cannot take objection to the execution of decree passed by that Court herein Pakistan. I have considered the above point but factual position or understanding between the parties cannot change legal provision and they will remain same as they are, hence contention of learned counsel has no force.
12. In these circumstances, agreeing with the above finding as well as keeping in view the wording of section 44-A and the statement of Section Officer, Ministry of Law, Justice and Human Rights, Government of Pakistan, I am of the view that U.S.A. is not reciprocating territory hence decree passed by a Court in U.S.A. cannot be executed in Pakistan.
13. As a result above execution application is dismissed with no order as to costs.