1. ' The defendant/decree-holder has filed this application for execution of a decree passed in its favour by the High Court of Justice, Queen's Bench Division, Commercial Court, England. Briefly, the facts are that the plaintiffs/judgment-debtors caused a writ of summons issued from the Queen's Bench Division, Commercial Court of the High Court of Justice in England against the defendant/decree-holder in respect of a claim in money alleged to be due from the defendant/decree-holder to the plaintiffs/judgment-debtors. The plaintiffs-judgment-debtors applied for leave to discontinue the action which was granted and it was ordered that the plaintiffs-judgment debtors do pay the defendantdecree-holder the cost of the proceeding with interest at 15% P.A. From the date of judgment till payment. The said cost was taxed at the sum of Rs,20,113.64. It is alleged that the plaintiffs-judgment-debtors failed to pay the costs of the action which was specified by the Taxation Officer's Certificate, dated 30-10-1980. The defendant-decree- holder, therefore, filed this execution application together with an application under section 44-A, C.P.C. For execution of the said decree for cost as a decree passed by this Court.
2. ' The plaintiffs-judgment-debtors have filed objection that they had filed the suit but when the matter came up for hearing in spite of the fact that the judgment-debtor No,1 had suffered heart attack and was unable to travel to England for giving evidence the learned Commercial Judge refused to grant adjournment more than once and therefore, the judgment-debtor's counsel had no option but to withdraw the suit. The suit was accordingly dismissed with costs without any adjudication on the merits of the case or recording the evidence. In these circumstances the judgment-debtors inter alias objected that this Court has no jurisdiction to entertain the application for execution and that the decree is not a decree within the meaning of section 44-A, C .P.C.
3. ' Section 44-A reads as follows:- "44-A , Execution of decree passed by Court in the United Kingdom and other reciprocating territory:
(1) Where a certified copy of 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.
(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court starting the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.
(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of the District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section.
4. 13.
5. Explanation 1.--'Superior Courts' with reference to the United Kingdom, means the High Court in England, the Court of section in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County Palantine of Lancaster and the Court of Chancery of County Palantine of Durham.
6. Explanation 2.--'Reciprocating territory' means the United Kingdom and such other country or territory as the Federal Government may from time to time, by notification in the official Gazette declare to be reciprocating territory for the purposes of this section and superior Court with reference to any such territory means such Courts as may be specified in the said notification.
7. Explanation 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) reference to superior Courts in the United Kingdom, includes judgments given and decrees 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.
8. ' It provides procedure for the execution of a decree of any superior Court of the United Kingdom or any reciprocating territory, by the District Courts in Pakistan. A decree passed by any superior Court of the United Kingdom or any reciprocating territory may be executed in Pakistan In the same manner as a decree passed by the executing District Court. The decree passed by such foreign Courts are to be treated as decree passed by the District Court in Pakistan and may be executed by it. Section 44-A, subsection (2) requires the decree-holder to file certified copy of the- decree and a certificate of such superior Court certifying the extent to which decree has been satisfied.
9. Subsection (3) makes section 47 applicable to the execution proceedings instituted under section 44-A and further applies the bar provided under any of the exceptions specified in clauses (a) to
(f) of section 13, C.P.C. It, therefore, follows that proceedings for execution under section 44-A are subject to the jurisdiction conferred by the section 47, C.P.C. An decrees which are hit by any of the exception clauses (a) to (f) o section 13 shall not be executed. Section 44-A confers a discretion o the Court to execute a decree passed by the superior Court of United Kingdom or any reciprocating territory but it will refuse to exercis such discretion if it comes to the conclusion that the decree is covered by any one Of the exception clauses (a) to (f) of section 13.
10. Explanation 3 of section 44-A defines the 'decree' for purposes of this section. A decree executable under section 44-A should be decree or judgment under which money is payable provided the money under the decree is -not payable in respect of taxes, any charges o like nature, penalty or fine. The decree should not be an arbitration award even if such award is enforceable as a decree or judgment. A decree should be money decree but in no case it should be a decre for payment of taxes, charges, costs, penalty or fine nor it should b a decree passed on the arbitration award.
11. Although word 'cost' has not been used in explanation 3, the word 'taxes' followed by the word 'other charges' will include costs as taxed by the Court.
12. Now considering the facts of the present case it is plain that it is a decree in respect of taxes, costs and charges and, therefore, it is clearly hit by explanation 3 reproduced above and such a decre though passed by a superior Court of United Kingdom, in my opinion, is not a decree under section 44-A and, therefore, cannot be execute under it.
13. Another aspect of the case is that the judgment and decre sought to be executed has not been passed on merits. It is an admitted position that evidence was not recorded in the matter nor the merits o the case were considered by the learned Court. It has, therefore, to be examined whether the case falls within any one of the exception clauses (a) to (f) of section 13. A foreign judgment is conclusive provided it is pronounced by a competent Court on merits of the case. It is clear that the judgment and decree is not on merits and, therefore, it falls clearly under the exception provided by section 13. Mr. Muhammad Ali Saeed, the learned counsel for the plaintiffs-decree- holders has referred to Ramakissor Dosji v. Siranga Charlu I L R 21 Mad. 421 where an ing cost while dismissing the suit as withdrawn was held not to be a 'decree'. Similar view was expressed in I L R 12 All.
129. In Golab v. Janki Kaur AIR 1920 Pat. 622 it was observed that: "an order for costs is not a decree; it has to be included in a decree or may be a part of a decree; but it is not a decree within the meaning of the Civil Procedure Code as it does not decide any question of general right such as rights in relations to status, jurisdiction, limitation, and frame of suit which, if decided, must have a general effect on the proceedings". Mr. Muhammad Ali Saeed has referred to Abdul Ghani v. ,Saley Muhammad PLD 1960 Kar. 594 where after a review of case-law it was held that "a decision cannot be considered on merits unless and until it is based on consideration of some evidence on the question under consideration".
14. ' In view of the above discussion the decree for cost sought to be executed is not a decree within the meaning of section 44-A and cannot be executed. The execution application and F.C.D. 1 of 1982 are, therefore, dismissed with no order as to costs.
15. Appliation and F.C.D. Dismissed.