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Morlays (B'Ham) Ltd. Vs. Roshanlal Ramsahai and Anr. (07.08.1959 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberO.C.J. Application for execution in Queens Bench Division M. No. 2813 of 1957
Judge
Reported inAIR1961Bom156; (1960)62BOMLR608
ActsCode of Civil Procedure (CPC), 1908 - Sections 13, 44-A, 44-A(1) and 44-A(3)
AppellantMorlays (B'Ham) Ltd.
RespondentRoshanlal Ramsahai and Anr.
Appellant AdvocateParpia and ;Iranf, Advs.
Respondent AdvocateR.J. Joshi and ;M.P. Laud, Advs.
Excerpt:
civil procedure code (act v of 1908), sections 13, 44a (1), order xxi - meaning of words 'as if' in section 44a (1).;the words 'as if' are used in section 44a (1) of the civil procedure code, 1908, to make the whole scheme of order xxi of the code applicable in respect of execution of decrees of foreign courts mentioned in section 44a (1). the words 'as if' do not mean that the decree sought to be executed in india must be treated as having been passed by a court of competent jurisdiction. the executing court must refuse execution of any such decree if it falls within any of the exceptions specified in clauses (a) to (f) of section 13 of the code. - .....sub-section (3) which provides that this court as executing court shall refuse execution of the plaintiffs' decree if it falls within any of the exceptions specified in clauses (a) to (f) of section 13. as i have already held the decree in question falls within exception (a) of section 13 and is a decree not of a court of competent jurisdiction. the words 'as if' are used in sub-section (1) to make the whole scheme of order xxiapplicable in respect of execution of decrees ot foreign courts mentioned in sub-section (1). the words 'as if' have no wider meaning as is suggested by mr. parpia. mr. joshi relied upon, the decisions in the caseof vithalbhai shivabhrd patel v. lalbhai bhhnhliai,44 bom lr 380: air 1942 bom 199)and indianand general investment trust ltd. v, raja ofkhalikote, :.....
Judgment:

1. Mr. Parpia's contention is that the true meaning of the words 'as if' as used in Sub-section (1) (of Section 44-A Civil P. C.) is that the decree in favour of the Plaintiffs must be treated as having been passed by this Court and consequently it must he held to have been passed by a court of competent jurisdiction. In my view that contention is contrary to and impossible having regarding to the provisions in sub-section (3) which provides that this Court as executing Court shall refuse execution of the Plaintiffs' decree if it falls within any of the exceptions specified in clauses (a) to (f) of section 13. As I have already held the decree in question falls within exception (a) of section 13 and is a decree not of a Court of competent jurisdiction. The words 'as if' are used in sub-section (1) to make the whole scheme of Order XXIapplicable in respect of execution of decrees ot foreign Courts mentioned in sub-section (1). The words 'as if' have no wider meaning as is suggested by Mr. Parpia.

Mr. Joshi relied upon, the decisions in the caseof Vithalbhai Shivabhrd Patel v. Lalbhai Bhhnhliai,44 Bom LR 380: AIR 1942 Bom 199)and Indianand General Investment Trust Ltd. v, Raja ofKhalikote, : AIR1952Cal508 . Questions arose inthose matters regarding recognition of foreign judgments and the principles as recognized by thePrivy Covincil in the case of Raja of Faridkotewere repealed in these decisions. It is unnecessaryto refer to the details of facts as contained inthese decisions.

2. Execution dismissed.


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