AJMAL MIAN, J.---This is an appeal with leave of this Court against the judgment dated 25-2-1992 of a Division Bench of the Sind High Court in High Court Appeal No.94 of 1992, filed by the respondent against the order dated 21-5-1992 of a learned Single Judge of the same Court, passed on the appellant's C.M.A. No. 599/92 in F.O.D.. No.6/91 Execution No.77 of 1991, dismissing the respondent's objection to the foreign judgment/decree allowing the same by reversing the above order of the learned Judge in Chambers.
2. The brief facts are that the appellant, which is a company registered in England having its office at Edagware Road, London, filed a suit for the recovery of pounds 25,000 with interest and cost on the basis of the respondent's six dishonoured cheques in the High Court of Justice, Queens Bench Division, London (U.K.). It seems that the aforesaid suit was decreed on 7-10-1987 for the ,above sum of pounds 25,000 plus pounds 1709.25 interest and pounds 118 as cost. It appears that the appellant after obtaining requisite certificate in terms of section 44-A of the Civil Procedure Code, hereinafter referred to as the "C.P.C.", filed an execution application on 13-8-1991 under section 44- A, C.P.C. Read with Rule 309 of the Sind Chief Court Rules (O.S.), hereinafter referred to as the "Rules", which was registered under the above number for execution of the above decree against the respondent. The respondent was issued notice of the above-execution application by the High Court as per Rules, in response to which, the respondent filed objections to the execution without depositing or furnishing the security of the decretal amount in terms of Order XXI, Rule 23-A, C.P.C.
Thereupon, the appellant filed above C.M.A. No.599/92, praying therein that the respondent's above objection be dismissed for non-compliance with the requirement of the above provision of Order XXI, Rule 23-A, C.P.C. ~ The above application was resisted by the respondent but the learned Judge in Chambers by his aforesaid order dated 21-5-1992 allowed the appellant's above civil miscellaneous application. The respondent thereupon, filed the above High Court Appeal, which was allowed by a Division Bench through the judgment under appeal. After that, the appellant had filed a petition for leave to appeal, which was granted to consider the following question:------ "Whether Order XXI, Rule 23-A, C.P.C. Is applicable to the execution of decree passed by a foreign Court in terms of section 44-A, C.P.C."
3. In support of the above appeal, Mr. Qamarul Islam Abbas, learned A. S. C., has urged that the learned Judges of the Division Bench were not justified in reversing the order of the learned Judge in, Chambers, as under subsection (1) of section 44-A, C.P.C. The above foreign judgment/decree was to be executed in Pakistan as if it had been passed by the District Judge. His further submission was that since the procedure provided for the execution of a decree as contained in Order XXI, C.P.C., the provisions of Order XXI, Rule 23-A, C.P.C. Were applicable to the case in hand, which was rightly so held by the learned Judge in Chambers.
On the other hand, Mr. J.H. Rehmatullah has contended that a foreign judgment/decree by virtue of subsection (1) of section 44-A, C.P.C. Is to be treated as if it had been passed by the District Court for limited purpose, namely, for getting it executed in Pakistan but it cannot be equated with a judgment/decree passed by a District Court in Pakistan and, therefore, the cumbersome provision for depositing of the decretal amount or furnishing security thereof to terms of Order XXI, Rule 23-A cannot be invoked. His further submission was, that the scope of inquiry before an executing Court of a foreign judgment/decree is much wider as compared to the grounds available for assailing a judgment/decree passed by a District Court in Pakistan. Lastly, it Ads' contended that subsection
(3) of section 44-A being a special provision and also being part of substantive law will exclude the application of general procedural provisions contained in Rule 23-A of Order XXI, C.P.C.
4. It may be observed that both the parties have referred to sections 13, 44-A and Order XXI, Rule 23-A, C.P.C. It may be advantageous to reproduce the same, which read as follows:-- --- "Section 13, C.P.C.:
13. A 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 the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of (Pakistan) in cases 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)."
Section 44-A, C.P.C.: 44--A.--(11 Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed to a District Court, the decree may be executed m (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 stating 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 a 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 13.
Explanation 1.---'Superior Court' with reference to the United Kingdom, means the High Court in England, the Court of Session in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County Palatine of Lancaster and the Court of Chancery of the County Palatine of Durham.
Explanation 2.---'Reciprocating territory' means (the United Kingdom and such other country or territory as) the (Central Government) may, from the to the, by notification in the (official Gazette), declare (to be reciprocating territory for the purposes of this section and 'superior Courts' with reference to any such territory, means such Courts as may be specified in the said notification.
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) with 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 decree or judgment.
Order XXI, Rule 23-A, C.P.C.: 23-A. An objection by the judgment-debtor to the execution of a decree shall not lie considered by the Court unless--
(a) in the case of a decree for the payment of money, he either deposits the decretal amount in Court of furnishes security for its payment; and
(b) in the case of any other decree he furnishes security for the due performance of the decree.
5. A persual of the above-quoted section 13 indicates that foreign judgment is to be treated in Pakistan to be conclusive as to any matter thereby directly adjudicated upon between the same parties or between the parties under whom they or any of them claim litigating under the same title except that the same shall not be conclusive if any of the sub-clauses of the above section is attracted, namely, (a) where judgment 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 the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of Pakistan in cases 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.
It may further be noticed that subsection (1) of section 44-A, C.P.C., provides the manner of execution of a foreign decree by laying down that 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.
It may also be stated that subsection (2) of the above section requires that the certified copy of the decree should be accompanied with a certificate from the superior Court of which decree is to be executed, stating the extent, if any, to which the decree has been satisfied or adjusted. It further provides that such certificate shall for the purpose of proceedings under the above section be conclusive proof of the extent of such satisfaction or adjustment.
It may also be observed that subsection (3) lays down that the provisions of section 47, C.P.C. Shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a, decree under above section 44-A and the District Court shall refuse execution of foreign 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 13.
It may be pointed out that Explanations 1, 2 and 3 define the terms "Superior Court", "Reciprocating Territory" and "Decree". Since the same have no direct bearing to the controversy in issue, it is not necessary to deal with the same in detail.
It may be pointed out that rule 23-A of Order XXI, C.P.C. Provides that an objection by the judgment-debtor to the execution of a decree shall not be considered by the Court unless (a) in the case of a decree for the payment of money he either deposits the decretal amount in Court or furnishes security for its payment, and (b) in the case of any other decree, he furnishes security for the due performance of the decree.
6. Adverting to the above contentions of the learned counsel for the parties, it may be pertinent to observe that the sole question in issue is as to whether a foreign decree, which by fiction of law is to be treated as if it had been passed by the District Court in Pakistan can only be contested by the judgment-debtor after complying with the requirement of above Order XXI, Rule 23-A, C.P.C. Mr. Qamarul Islam Abbas, in support of his submission, has referred to the case of Morlays (B'Ham) Ltd. v. Roshanlal Ramsahai and another reported in A.I.R. 1961 Bombay 156, the case of Sheik Ali v. Sheik Muhammad, reported in A.I.R. 1967 Madras 45, and the case of Qadir Ahmed Siddiqui and 6 others v. Ramzan Ali and 6 others reported in PLD 1977 Karachi 273.
In the first case, a learned Single Judge of the Bombay High Court repelled the contention that the meaning of the words "as if" as used in sub--section(J) of section 44-A, C.P.C. Is that the decree in favour of the plaintiff must be treated as having been passed by the Bombay High Court and consequently it must be held to have been passed by a Court of competent jurisdiction notwithstanding clauses (a) to (f) to section 13, C.P.C. Which inter alia includes a ground for assailing the decree, namely, want of the jurisdiction of the foreign Court to pass the decree, which is sought to be executed.
In the second case, a Full Bench of the Madras High Court was considering the question as to whether the effect of subsection (1) to section 44-A, C.P.C. By treating a foreign decree as if it had been passed by the District Court would make the provisions of the Indian Limitation Act applicable. After reviewing the earlier case-law, the following conclusion was recorded in paras. 19 and 20 of the above reported case, which read as ,follows:-- "(19). To sum up of our conclusions, we are of the view that section 44-A(1) is confined to the powers and manner of execution and has nothing to do with the law of limitation. The fiction created by the subsection goes no further and is not for all purposes, but is designed to attract and apply to execution of foreign judgments by the District Court its own powers of execution and the manner of it in relation to its decrees,. Without reference to limitation. It follows that the contrary view expressed in (1963) 2 Mad. LJ 412: (AIR 1964 Mad. 221) is, in our opinion, not correct. The law of limitation as contained in the Limitation Act, as a procedural law and as lex fori will, however, apply, independently of section 44-A to execution in India of a foreign judgment of a superior Court in a reciprocating territory. But the effect of its application is a different thing which is a matter of construction and which will be considered elsewhere in this judgment.
(20) We now pass on to a consideration of the second question. From our earlier observations it should be clear that the fiction in section 44-A(1) does not, in any way, affect the original date of the foreign judgment when filed in a District Court in India. There is no indication in the section that the date of the foreign judgment should be taken to be anything but the original date. But can it be said that the Indian Limitation Act applies to it even from that date. Neither section 44-A nor the international law relating to foreign judgments and their execution in the local Courts provides an answer. But there can be only one answer, as we think namely that it does not. The jurisdiction of a District Court in this country to execute a foreign judgment arises from and exercisable by the filing of a certified copy of the foreign decree or judgment. It is only thereafter, and never until then, the procedural laws as lex fori will be attracted to execution. The Indian Limitation Act can possibly apply to such execution only after filing a certified copy of the foreign decree or judgment as required by section 44-A(1)."
In the third case, a learned Single Judge of the Sind High Court has held that there was no warrant for the contention that section 47, C.P.C. And Order XXI, Rule 23-A, C.P.C. Are to be read independently of each other and that the requirement of depositing or furnishing security of the decretal amount is not attracted by virtue of above section 47.
7. On the other hand, Mr. J.H. Rehmatullah has referred to the case of Begum B.H. Syed v. Mst. Afzal Jahan Begum and another reported in PLD 1970 SC 29 at page 35, the case of Mehreen Zaibun Nisa v. Land Commissioner reported in PLD 1975 SC 397 at pages 433 and 434, and the case of Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others reported in 1993 SCM R 1905 at page 1923.
In the first case, this Court while construing a notification dated 7-3-1960, issued by the Central Government in respect of settlement schemes under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 providing that the house in the possession of the husband in pursuance of the order passed on or before 20th day of December, 1958 by a competent authority, his wife if staying with him, will also be deemed to be in possession, held as follows;--- "At that the there was no deeming notification like the one, dated the 11th August, 1960. The notification, dated the 7th March 1960, meant only for those persons who were in physical possession of the property in dispute. In such circumstances, there- should be very compelling reasons to extend the scope of the notification, dated the 7th March 1960, to persons mentioned in the notification, dated the 11th August, 1960, namely, allottees who are not in possession of the property. The language of the notification, dated 7th March 1960, does not show any such compelling reason. A bare reading of the said notification shows that it applies only to those properties which are in physical possession of husband in which his wife is also staying with him.
Mr. Dilawar Mahmood, the learned counsel for respondent No.1 has referred us to a number of English and Indian decisions to canvass for his contention that the scope of a deeming clause is very wide. He contended that where a person is deemed to be something the only meaning possible is that whereas he is not in reality that something the Act required him to be treated as he were. There is no quarrel with the contention of the learned counsel for respondent No. l that where the statute says that you must imagine the state of affairs; it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
In the second case, this Court while construing the provisions of Land Reforms (Punjab Amendment) Act, 1973 (Act XI of 1973) inter alia dilated upon the effect of deeming clause by observing that, "When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant the but by a legal fiction we are to assume as if it did exist. The classic statement as to the effect of a deeming clause is to be found in the observations of Lord Acquit in East End Dwelling Company Ltd. v.
Finsbury Borough Council- (1) namely: "Where the statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
In the third case, this Court while construing section 31-A of the Customs Act, 1969, which was enacted retrospectively held that the effect of a deeming clause is that, ."When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to (p.1924) L.
8. In furtherance of his above last submission, namely, "that subsection (3) of section 44-A being a special provision and also being part of substantive law will exclude the application of general procedural provisions contained in rule 23-A of Order XXI, C.P.C.", Mr. Rehmatullah has referred to the case of Golden Oraphies (Pvt.) Ltd. And 12 others v. Director of Vigilance, Central Excise, Customs and Sales Tax and others reported in 1993 SCM R 1635 at page. 1644, and the case of Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sargeant Traffic reported in 1996 SCM R 826 at page 833.
In the first case, this Court while construing certain items of Pakistan Customs Tariff observed that where a special provision had been made on a subject and there was also a general provision susceptible of covering the same field and the matter was covered by both the provisions, presumption would be that the general provision was not intended to interfere with the operation of the special provision and the case would have to be dealt with under a special provision.
In the second case, this Court while construing Police Rules held that where a general as well as a special law applied to a particular case then to the extent of application of special law in that case, provisions of general law stand displaced.
9. We have already pointed out hereinabove that a foreign judgment/decree can be assailed on any of the grounds mentioned in clauses (a) to (t) of section 13, C.P.C. Whereas subsection (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 subsection (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, insteadof 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.
However; this deeming provision contained in subsection (1) the above section 44-A is to be read in conjunction with subsection (3) thereof in order to harmonies the above to provisions of the same section. In our view, since subsection (3) of section 44-A requires an executing Court in Pakistan to refuse the execution of a foreign decree if it is shown by the judgment-debtor that the decree falls within any one of the exceptions specified in clauses (a) to (f) of section 13, the same cannot be controlled or its effectiveness be curtailed by the cumbersome provision of rule 23-A of Order XXI, C.P.C. The above special provision contained in subsection (3) of section 44-A shall exclude the application of the general provisions of above Order XXI, Rule 23-A, C.P.C., which is applicable generally to decrees passed in Pakistan. Additionally subsection (3) of section 44-A, C.P.C. Is a provision of substantive law, whereas Rule 23-A of Order XXI, C.P.C. Is a procedural provision framed under the C.P.C. And, therefore, in case of any inconsistency, the former shall prevail over the latter. 'Since the former provision does not envisage the exercise of the right contained therein by a judgment-debtor subject to deposit or furnishing of the security of the decretal amount, there seems to be inconsistency.
10. The judgments in the case of Golden Oraphies (Pvt.) Ltd. And 12 others v. Director of Vigilance, Central Excise, Customs and Sales Tax and others (supra) and in the case of Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sargeant Traffic (supra) support the above conclusion which we are inclined to take. The above view seems to be more in consonance with the dictates of justice. This can be illustrated by an example, suppose "A" obtains, a decree against "B" for a sum of -- 1 million from a Court which had no jurisdiction. Such a decree is filed in Pakistan under section 44-A, C.P.C. "B" has very strong defence under clause (a) of section 13, C.P.C. Read with subsection
(3) of section 44-A, C.P.C., but his objections are dismissed on the ground that he fails to deposit or furnish security of the decretal amount. If we were to take a contrary view in line with the above example, it will frustrate the very object of the above provisions and thereby defeat the intention of the law--makers. We may also observe that there is no parallel provision to Order XXI, rule 23-A, C.P.C. In India. The judgment in the case of Morlays (B'Ham) Ltd. v. Roshanlal Ramsahai and another (supra) of the Bombay High Court in fact supports the view which we are inclined to take. It does not advance the appellant's case, as it has been held that in presence of clause (a) of section 13, C.P.C., it cannot be presumed that a decree of a foreign Court was passed by a competent Court.
The view found favour by the Full Bench of the Madras High Court in the case of Sheik Ali v. Sheik Muhammad (supra) also does not support the appellant's case as the ratio decidendi of the above case seems to be that section 44-A(1), C.P.C. Is confined to the powers and manners of execution and has nothing to do with the law of limitation and that the fiction created by the subsection goes no further and is not for all purposes but is designed to attract and apply to the execution of foreign judgments by the District Court its own power of execution and the manner of it and in relation to it decrees without reference to limitation.
11. The upshot of the above discussion is that the above appeal has no merit, the same is dismissed, but with no order as to costs.