1. The applicant filed an application under section 44-A, C. P. C. For execution of a foreign Court decree passed by the High Court of Justice, Queens Bench Division, London in the matter of arbitration. The office raised several objections which inter alia include that in terms of Explana-- tion 3(b( to section 44-A, C. P. C. The arbitration award cannot be termed as a decree and is not executable. The applicant in reply stated that Explanation 3(b) refers only to arbitration awards which have now been "converted into decrees by the Court". A notice was issued to the Advocate-- General who has also addressed on this point.
2. Briefly the facts are that under an agreement the applicant sold the vessel m. v. Mimi-M to the defendant which contained an arbitration clause. As dispute arose between the parties on the applicant's petition the Commercial Court Queen's Bench Division in the High Court of Justice in London appointed a Sole Arbitrator on 6th June 1978. From the award it seems that in spite of notice by the sole Arbitrator the defendant did not appear. The claim was accordingly filed by the applicant of which a notice was sent to the defendant but neither it appeared nor replied to it. In the award it is stated that "the hearing was held at the Baltic Exchange, St. Mary Axe, London E. C. 3 on 26th October, 1978 at 2 p.m. The respondents failed to appear and failed to deliver any documents and submissions to me. The Claimants also did not appear, having previously informed me that they intended to rely on the documents already delivered without the presentation of further arguments".
3. Before the Arbitrator the t applicant had made a claim fora sum of . $ 160657.55 being damages for the repudiation by the defendant of the said contract of sale. The award was made on 13th November 1978, in the following manner "Now, 1, the said Alexander John Kazaxtzis, having taken upon myself the burden of this Arbitration and having read the documents produced to me and duly considered and weighed the facts, arguments and evidence, do Hereby Make, Issue and Publish this my Final A rsard in respect of all matters in dispute, namely; I Find and Hold that the respondents wrongfully repudiated the Sale Contract and that Claimants succeed in their claim for damages in the amount of U. S. $ 146,238.40.
4. I Award and Adjudge that respondents shall forthwith pay the Claimants the sum of U. S. $ 140,238.40 (United States dollars one hundred and forty thousand, two hundred and thirty-eight, 40 cents) together with interest thereon at the rate of 10 % per annum from 26th December 1977, until this the date of my Award.
5. I Further Direct that the respondents shall forthwith pay their own and the Claimants costs in this reference (to be taxed if not agreed) and the cost of this my Award which I hereby tax and settle at -- 250 inclusive of my fees and expenses.
6. Provided always that if the Claimants shall in the first place have paid the whole of the cost of this award they shall be entitled to an immediate refund from the respondents of the amount so paid."
7. The award is a non-speaking award in which no reasons whatsoever have been given."
8. After the award was made the applicants' Solicitors made an application under section 26 of the Arbitration Act, 1950 before the High Court of Justice, Queen's Bench with the following prayer.
9. "It may be ordered that they be at liberty to enforce the said award as if it were a judgment or order of this Honourable Court to the same effect, and that they may be at liberty in due course to sign final judgment for the amount of the said arbitrator's award interest and costs."
10. On 5th March, 1980, the Court granted the application and ordered that "the applicant be at liberty to enforce the award to the same effect as if it were a judgment and order of this Court." It is this order of the High Court of Justice in England which the applicants seek to enforce under section 44-A, C. P. C.
11. Section 44-A provides that the decree passed by superior Courts of the United Kingdom or any reciprocating territory may be executed in Pakistan as if it were passed by the District Court. For the sake of convenience relevant portion of section 44-A is reproduced as follows :- "44-A.-(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.
12. Explanation No. 3: "Decree".-With reference to a superior Court, means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, and;
(a) With reference to superior Courts in the United Kingdom, includes judgments given and decree made in any Court in appeals against such decrees or judgments, but
(b) in no case includes an arbitration award, even if such award is enforceable as a decree or judgment . . . . ."
13. This section entitles a decree-holder who has obtained a decree of any of the superior Courts of the United Kingdom or any reciprocating territory to file in Court in Pakistan for execution and upon filing of such a decree the Court will execute it as if it had been passed by the same Court. There is no dispute that a decree passed by the superior Courts of United Kingdom can be executed by the Courts here. Subsection (3) of section 44-A makes section 47 applicable to the proceedings and it has further been provided that if it is shown to the satisfaction of the Court that a decree falls within any of the exceptions specified in clauses (a) to (f ) of section 13 of the Code of Civil Procedure the Court shall refuse execution. Section 13 lays down six conditions when a foreign judgment shall not be conclusive as to any matter thereby directly adjudicated between the same party. Explanation 3 to section 34-A explains the meaning of "Decree" for purpose of execution under section 44-A. Decree means any decree or judgment in which a sum of money is payable which is not in respect of taxes, charges or fine or penalty. However, sub-clause (b) of Explanation in clear terms excludes Arbitration award even if it is enforceable as a decree or judgment from the definition of the decree. It follows that even judgment and decree passed by a competent Court based on the award shall not be deemed to be a decree in terms of section 44-A. An award ca be made a judgment and decree only after the Court has passed an order t that effect. Such proceedings in England, are governed by section 26 0 the Arbitration Act, 1950. Proceedings to the same effect are provided, under sections 14, 30 and 33 of the Arbitration Act of 1940. The Legislature recognises only such decrees of the superior Court of U. K. Executable which have been passed by that Court. It does not recognise any decree which is based on the award. From a reading of section 44-A and Explanation 3 it seems clear that decrees and orders based on arbitration awards cannot have the same sanctity which is attached to a decree passed by a Court after hearing and considering the matter on merits itself. A distinction has been made between the decrees passed by the Court in a dispute before it and a decree passed by it on the basis of an award. In the latter case while passing a decree on the basis of the award, or making the award a rule of the Court, the Court has limited jurisdiction on which an award can be challenged. In these circumstances any judgment passed on awards cannot be at par with a judgment passed by the Court itself after hearing the parties.
14. The learned Advocate-General has contended that as the law has been changed in England and now the arbitration award is made a decree or judgment of the Court therefore for purposes of execution it should be treated as decree executable by this Court under section 44-A. The learned Advocate-General has obviously referred to section 26 of Arbitration Act, 1950 under which leave is sought to enforce an Arbitration Award as judgment of the High Court.
15. Mr. Akram Zuberi the learned counsel for the applicant has also contended the same Explanation 3
(b) to section 44-A clearly excludes arbitration awards even if such an award is enforceable as a decree or judgment from the purview of the word "decree" which is executable under this section.
16. Even if the superior Court U. K. Has passed a decree or judgment on the basis of the award or granted leave to enforce the award as decree or judgment of that Court, it cannot be treated as a decree within the meaning of section 44-A for purposes of execution. The certified copy of the decree passed by the Queen's Bench Division of the High Court of Justice clearly states that the applicants are at liberty to enforce the award as if it were the judgment or order of that Court. Such leave can hardly convert the award in a decree which is executable under section 44-A, C. P. C.
17. Such a decree in my opinion is not executable and, therefore, the application is dismissed.