1. NADEEM AZHAR SIDDIQI, J. --- On 17.11.2008 arguments of the learned counsel for the parties were heard in respect of C.M.A. No. 710 of 2008 and orders were reserved.
2. Brief facts of the case, as mentioned in the affidavit of facts filed by the Decree-Holder, are that the D.H. Is a bank which was previously operating in England until its liquidation was ordered for which Joint Liquidators were appointed by the Court The Judgment-Debtor applied to the D.H. For grant of loan facility against the mortgage of property bearing No. 1, Glenloch Road, London NW 3 and the D.H agreed to lend a sum of Pound Sterling 410,000 to the JD. The JD defaulted in repayment of the loan facility and, therefore, the DH sent letters of demand to the JO for repayment of the loan. On failure of the JD to repay the loan amount , the DH sold the above-said mortgaged property for consideration of Pounds Sterling 156,04230 and adjusted the amount recovered therefrom towards the outstanding dues of the JD. After the above adjustment a sum of Pound Sterling 608,838.59 remained outstanding against the JD for the recovery of which the DH filed its claim in the High Court of Justice Queen's Bench Division which was decreed ex parte vide Judgment dated 19.7.1993 against the JD in the sum of Pound Sterling 650,521.90 together with carried interest @ 8% and costs. In order to enforce the above Judgment and Decree against the JD, the DH filed the present execution application in this Court as the JD has left the jurisdiction of the Court passing the Judgment and Decree.
3. Mr. Abrar Hassan, learned counsel for the JD, submitted that the documents/information sought in the listed application are necessary for ascertaining the veracity of the judgment/decree passed by the foreign Court. He then submitted that the foreclosure of the mortgaged property was in contravention of the laws of Pakistan and thus the execution application is hit by provisions of Section 13, C.P.C. As it is not a conclusive judgment. He also submitted that the decree is not in consonance with the provisions of Order XX, rule 6, C.P.C. He further submitted that the judgment/decree sought to be executed through this execution application is not a judgment as defined under Section 2(9), C.P.C. Which stipulates that a "judgment" means the statement given by the Judge of the grounds of a decree of order.
4. Learned counsel for the JD in support of his contentions relied on the following reported eases:---
(1) Grosvenor Casino Limited v. Abdul Malik Badruddin (1997 SCM R 323),
(2) Habib Bank Ltd. V. Lnamur Rehman and another (1986 M LD 710),
(3) Karam Chand Leal and another v. Mehdi Hasan (1984 CLC 1941),
(4) Abdul Gani v. Haji Saleh Muhammad (PLD 1960 (WP) Karachi 594),
(5) Ghulam Ahmed & another v. Dr. Sarosh Rattanji Wadia (PLD 1959 (WP) Kar. 624),
(6) Fazal Ahmed & others v. Abdul Bari & another (PLD 1952 Dacca 155),
(7) D.T. Keymer v. P. Visvanathan Redi (AIR 1916 PC 121), and
(8) Isidore Fernando v. Thommai Antoni Michael Fernando (AIR 1933 Madras 544).
5. Mr. Usman Jamil, learned counsel for the DH submitted that the instant application has been filed only to delay the execution of the decree passed by a foreign Court on 19.7.1993. He submitted that execution of a decree passed by Courts in United Kingdom by a Pakistani Court is covered under Section 44-A, C.P.C., wherein there is no provision for filing further/better statement/particular as envisaged under the listed application. He then referred to Section, 2(6) of C.P.C. Which stipulates that "Foreign Judgment" means the judgment of Foreign Court and states that there is distinction between the definition of "judgment" and "Foreign Judgment" and in this case Section 2(6) is not applicable. Learned counsel in support of his submission relied on the following reported cases:---
(1) Baijnath Karmani v. Vallabhadas Damani (AIR 1932 Madras 661),
(2) Brijlal Ramjidas and another v. Govindram Gordhandas Seksaria and others (AIR (30) 1943 Bombay 201),
(3) Brijlal Ramjidas and another v. Govindram Gordhandas Seksaria and others (PLD 1947 PC 150),
(4) Abdul Gani v. Haji Saleh Muhammad (PLD 1960 (WP) Karachi 594),
(5) Viswa nathan and others v. Rukn-ul-Mulk Abdul Wajid (AIR 1963 SC 1),.
(6) Sankaran Govinda v. Lakshmi Bharathi and others (AIR 1964 Kerala 244),
(7) Abdul Malik Badruddin v Grosvenor Casino Limited (PLD 1993 Kar 449),
(8) Weinberger v. Ingles (1 Chancery Division 133); and
(9) A. Janno Hassan Sait v. S.N. Mahamad Ohuthu (AIR 1925 Madras 155).
6. I have heard the learned counsel for the parties and have perused the material available on record.
7. Provisions contained in various rules of Order VI, C.P.C. Deal with pleadings of the parties as is evident from the heading of this Order which reads "Pleadings Generally". Rule 1 defines the word "pleading" while rule 2 in a very emphatic manner stipulates that "Every pleading shall contain, and contain only" a statement in a concise form of the material facts on which the party pleading relies for his claim or defence." Rule 3 relates to the form of pleading and rule 4 stipulates that necessary particulars shall be stated in the pleading. The next rule which is rule 5, under which the instant C.M.A. Has been filed deals with further or better statement or particulars. In the same vein, the rest of the rules contained in Order VI deal with the pleadings of the parties.
8. Thus, if rule 4 and rule 5 of Order VI, C.P.C. Are read in juxtaposition it would emerge that if the requirements of rule 4 are not met and the pleadings i.e. Claim or defence, are vague, the Court can order for supply of further and better statement or particulars. Rule 5 of Order V!, C.P.C. Reads as under:--- "5. Further and better statement, or particulars.-- A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in and pleading, may in all cases be ordered, upon such terms as to costs and otherwise, as may be just" (emphasis supplied).
9. Rule 1 of Order VI, C.P.C. Defines that "pleading" shall mean plaint or written statement.
10. Thus Rule 5 of Order VI, C.P.C. Entitles a party to ask for "better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading" (emphasis is supplied). In other words, provisions of Rule 5, Order VI, C.P.C. Can only be pressed into service in respect of the pleadings to prevent surprise and to narrow down the pleadings to prevent surprise and to narrow down the scope of controversy between the parties.
11. Although the listed application has been filed under Order VI, rule 5, C.P.C. But all the cases relied upon by the learned counsel for the JD are in respect of Section 13, C.P.C. And Section 44-A, C.P.C.
12. Section 13 of the Civil Procedure Code is relevant for the purposes of 'foreign judgments' and is reproduced hereunder:- "13. When foreign judgment not conclusive.-- Foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except:---
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognize the law of Pakistan in eases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in Pakistan."
13. "We have already pointed out hereinabove that a foreign judgment/decree can be assailed on any of the rounds mentioned in clauses (a) to (f) of Section 13, C.P.C. Whereas sub-section (3) imposes an obligation on the part of the District Court executing a foreign decree to refuse the execution of the same if it is shown to its satisfaction that the decree falls within any of the exceptions specified in the above clauses (a) to (f) of Section 13. The object of deeming provision in sub-section (1) of Section 44-A, C.P.C. Seems to be to facilitate execution of a foreign decree in Pakistan by assuming by virtue of fiction of law as if it had been passed by the District Court in Pakistan, instead of compelling the foreign decree-holder to file a suit on a foreign judgment which was the position obtaining in India prior to the incorporation of above Section 44-A in 1937."
14. Section 44-A, C.P.C. Provides the procedure for execution of a foreign judgment/decree and Section 13(2) to (f) provide the instances under which the Court can refuse execution of a foreign judgment/decree. If to a foreign decree-holder the provisions of Section 44-A, C.P.C. Are available for enforcing such judgment/decree, the provisions of Section 13, C.P.C. Are available to a Judgment-debtor of a foreign decree.
15. The instant execution application was presented on 20.5.1996 but was numbered in 1998 while the listed C.M.A. Under Order VI, rule 5, C.P.C. Read with Section 151 thereof was filed 23.9.2008 seeking a direction to the DH to provide:
(i) documents and papers about the property bearing No. 1, Granloch Road, London NW 3 allegedly sold by the DH;
(ii) details about the alleged service on the JD; and (iii) details about the cost, taxes, penalty, compound interest and charges added to the alleged money decree. Prior to filing of the instant application, objections on behalf of the JD were already filed on 3.10.2006 wherein no such plea was taken. Now, the only remedy available to the JD is to argue the objections.
16. It may be pertinent to mention here that mostly the arguments of the learned counsel for the JD were on the grounds mentioned in Section 13, C.P.C. And any findings thereon at this stage would prejudice the case of one party or the other. Therefore, it is expedient that no findings are given on such pleas raised by the. Learned counsel for the JD.