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Before Ajmal Mian and Muhammad Mazhar Ali, JJ HABIB BANK LIMITED--Appellants
versus
INAMUR RAHMAN and another--Respondents
High Court Appeal No. 101 of 1984, decided on 7th May,1987.
(a) Civil Procedure Code (V of 1908)--
---Ss. 13 & 44-A--Foreign judgment not given on merits of case- Effect--Decree for awarding costs whether a decree on merits and executable--Word "costs", meaning and scope--Foreign judgment, held, could not be considered as conclusive of any matter, where it had not been given on merits of case--Decree of superior Court of United Kingdom or any reciprocating territory in terms of S. 44-A, C.P.C. would mean any decree/judgment of such Court under which a sum of money was payable--Such sum however, would not include taxes or other charges of a like nature or in respect of fine or other penalty--Decree for awarding costs could not be a decree on merits of case for lack of adjudication upon any matter in action between parties to the action--Though word "cost" has not been mentioned with the items which have been excluded from the purview of money decree, yet the word employed in S. 44-A(3), Expl. 3 viz. "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", were indicative that cost was included in the ambit of the taxes--Word "taxes" or other charges of like nature connote and cover the "costs"--Decree awarding mere 'costs' would not be executable.--[Words and phrases].
Golab and others v. Janki Kuer A I R 1920 Pat. 622; Mst. Mughaljan v. Mirza Shaukat Ali Beg and others A I R 1931 Lah. 509; Dr.'Kulwant v. Dhan Raj Dutt A I R 1935 Lah. 396; Isidore Fernande v. Thommai Antoni Michael Fernando A I R 1933 Mad. 544; Chaudri Abdul Majid v. Jawahir Lai and others A I R 1914 P C 68; Ramakissoor Dossji v. Sriranga Charlu and another I L R 21 Mad. 421; D.T. Keymer v. P. Visvanatham Reddi A I R 1916 P C 121; Balkaran Rat and others v. Gobind Nath and others ILR 12 All. 129; The Concise Oxford Dictionary, Sixth Edn. a-rd 1768 Black Stone Comm. III XXIV. 400 ref.
(b) Civil Procedure Code (V of 1908)--
---Ss. 13 s 44-A--Foreign judgment/decree awarding costs not executable--Finding of Single Judge whereby decree for awarding costs was held not to be executable being in consonance with law was upheld by Division Bench of High Court in appeal--Appeal against such finding of Single Judge being without merit was dismissed.
Irtiza Hussain Zaidi for Appellant. M. Muhammad Ali Sayeed for Respondents. Date of hearing: 7th May, 1987.
AJMAL MIAN, J.-- This High Court Appeal is directed against an order dated 7-8-1984 passed by a learned Single Judge in Execution Application No.79 of 1982/FCD 1 of 1982 dismissing the present appellants' Execution Application on the ground that the decree was not a decree within the meaning of section 44-A, C.P.C. and cannot be executed. The appellants being aggrieved by the above order have filed the present appeal.
2. The brief facts leading to the filing of the above appeal are that the respondents caused a writ of summons to be issued out of Queens' Bench Division, Commercial Court of the High Court of Justice in England on 3-2-1976 against the appellants/ defendants in respect of a claim for money allegedly due to them from the appellants. However, on 26-6-1979 honourable Mr. Justice Donaldson ordered on the respondents' application that they had leave to discontinue the action and that they do pay to the appellants the cost of the proceedings which were taxed and allowed in the sum of pound sterling 20,113.64. The judgment was entered against the respondents for the aforesaid sum on 4-11-1980. It was further ordered that the judgment obtained by the appellants against the respondents in the action on 4-11-1980 would carry interest of 15 per annum calculated on the aforesaid sum from the date of the said judgment until payment. Since the decretal amount was not paid by the respondents, the appellants alongwith supporting documents submitted aforesaid Execution Application in this Court, based on foreign Court judgment, which was dismissed for the reason stated hereinabove.
3. Mr. Zaidi learned counsel for the appellants in support of the above appeal has vehemently urged that since cost has not been excluded in explanation 3 to subsection (3) of section 44-A , C . P . C . , the decree in respect of the cost in question was executable as it was neither covered by the above explanation nor it was hit by clause (b) of section 13, C.P.C.
Whereas Mr. Mohammad Ali Sayeed learned counsel for the respondents have vehemently urged that the learned Single Judge has correctly interpreted the above explanation 3 to subsection (3) of section 44-A, C.P.C. and clause (b) of section 13, C.P.C. and has rightly dismissed the execution application.
4. In order to appreciate the above contentions of the learned counsel for the parties it may be pertinent to reproduce section 13 and section 44-A of C.P.C. which read as follows:----
"13. When foreign judgment not conclusive.-- 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 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.
44-A. Execution of decrees passed by Courts in the United Kingdom and other reciprocating territory.-- (1) Where a certified copy o a decree o any o 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 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 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 Palsntine of Lancaster and the Court of Chancery of County Palantine of Durham.
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 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) 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."
5. It may be noticed that in terms of abovequoted clause (b) of section 13 a foreign judgment shall not be considered as conclusive as of any matter when it has not been given on merits of the case. Whereas under abovequoted explanation 3 to subsection (3) of section A 44-A , C . P. C . a decree with reference to a superior Court of United Kingdom or any reciprocating territory has been defined as means any decree or judgment of such Court under which a sum of money is payable, but 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.
6. The moot question in the instant case is, as to whether the decree for the cost can be considered as a decree on merits as to exclude the application of above clause (b) of section 13, C . P . C . and whether it is not a decree in respect of taxes or other charges of like nature or in respect of a fine or other penalty as to make it a money decree in terms of abovequoted explanation 3 to subsection of section 44-A, C.P.C.
Mr. Zaidi, learned counsel for the appellants has referred to the following cases:
(1) Golab and others v. Janki Kuer reported in A I R 1920 Patna, 622, in which in the majority judgment of two judges against the dissenting judgment of one Judge, it was held that limitation for appeal in proceedings under section 105-A of the Bengal Tenancy Act (8 of 1885) begins from the date of decision and not from date on which memo. of costs was added. It was also held that the Court was competent to include within such declaratory portion an order as to costs and that order though in itself not a decree as part of that portion of the decision which has the force and effect of a decree.
(2) Mt. Mughaljan v. Mirza Shaukat Ali Beg and others, reported in A I R 1931 Lah. 509. In the above case a learned Single Judge of the Lahore High Court held that the Court was competent to compensate a defendant under section 35-A CPC upon recording dismissal of a suit for default under Order IX, Rule 8 after warning and on account of subsequent extremely reprehensible conduct on part of the plaintiff which amounts to abandonment of claim.
(3) Dr. Kulwant v. Dhan Raj Dutt reported in A I R 1935 Lah. 396, in which a Division Bench of Lahore High Court while construing section 13; C.P.C. held that the words "judgment on merits" have been used in the C.P.C. in contradistinction to a decision on a matter of form or by way of penalty and a case must be taken to have been decided on the merits where the defendant had ample opportunity to raise a defence and voluntarily refrained from raising such a defence and the judgment was therefore, passed ex parte.
On the other hand Mr. Mohammad Ali Sayeed, learned counsel for the respondents has referred to the following. cases:
(1) Isidor Fernando v. Thommai Antoni Michael Fernando reported in A I R 1933 Mad. 544, in which a learned Single Judge of the Madras High Court while construing clause (b) of section 13, C.P.C. held that an ex parte decree under summary procedure of Ceylon is not on merits.
(2) Chaudri Abdul Majid v. Jawahir Lal and others reported in A I R 1914 Privy Council, 66. In the above case the Privy Council while construing Articles 179 and 180 of Schedule 2, Limitation Act held that an order of Privy Council dismissing an appeal for want of prosecution does not deal judicially with the matter of the suit and can in no sense be regarded as an order adopting or . confirming the decision appealed from.
(3) Ramakissor Dossji v. Sriranga Charlu and another reported in 21 ILR Madras, 421. In the above case the facts were that a religious institution filed a suit but it withdrew the suit with liberty to sue against and was ordered to pay the costs. It was held that no appeal lay against the order as to costs. It was also held that the order of the learned Judge as to costs is not a decree within the definition of that word in section 2, Civil Procedure Code nor was an order mentioned is section 588 of the said Code.
(4) D.T. Keymer v. P. Visvanatham Reddi reported in AIR 1916 Privy Council, 121, in which it was held by the Privy Council that a judgment entered on failure by the defendant to answer interrogatories is not a judgment on the merits in terms of clause (b) of section 13, C.P.C. It was further held that as the contentions raised in the action had not in fact been the subject of direct adjudication by the English Court, its judgment was not one given on the merits within the meaning of the above clause.
(5) Balkaran Rai and others v. Gobind Nath and others reported in ILR 12 All. 129. In the above case a Full Bench of the Allahabad High Court while construing sections 4, 5, 6, 9, 10, 11, 12, 28 and 30 of the Court Fees Act, 1870, and sections 54, 541, 582 and 638 of the Limitation Act, 1877 inter alia, held that a decision under section 5 of the Court Fee Act by a Taxing Officer or by the Chief Justice or the Judge appointed under that section is not a decree within the meaning of section 2 of the Civil Procedure Code.
7. There is no doubt that the decree for awarding costs cannot be said to be a decree on merits of the case in terms of section 13 of the C . P. C . as there has not been any adjudication upon any matter in action between the parties to the action. It is 'true that explanation 3 to subsection (3) of section 44-A, C.P.C. the word "costs" has not been mentioned with the items which have been excluded from the purview of money decree but the words employed therein are "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". The word 'Tax' inter alia has been defined in the following dictionaries.
The Concise Oxford Dictionary, Sixth Edition;
"Tax". 1. Impose tax on (subjects, citizens, etc., commodity, land, etc.) pay tax on (income taxed at source); ed cart, (Hist. ) type of open cart for trade etc. , on which little or no tax was payable.
2. Make demands upon, demand exertion from (person's resources, powers, ingenuity, etc.). 3. (Law) Examine and (dis) allow items of, assess, (costs etc.); ing-master, law-court official who taxes costs. 4. Charge (Person with fault, with doing); call to account.
5. Hence- ABILITY, -ableNess (-beln-) ns., ABLE (ME, f.OF taxer f.L. taxare censure, charge, compute, perh. f. Gk tasso fix).
The Oxford English Dictionary Volume XI
'Tax' I. 1. To estimate or determine the amount of (a tallage, fine, penalty, damages, etc.); to assess; rarely, to impose, levy (a tax); also, to settle the price of value of. Obs exc. in Law, to assess (costs). Const to (the amount). (680 K. CAEDUALLA Grant in Earle Land-Charters 281 Hanc libertatem sub estimatione LXX tributariorum taxauimums.) c 1290 Beket 397 in S. Eng. leg. I. 118 A taillage pov taxt farm zer to zer poruz-out al pi londe. (1314-15 Rolls of Parlt I. 290/2 La partie serra atteynt du trespas & les damages taxes a.la valunte son adversair.) 13. Cursor M. 27321 (Cott) (To) knau pe circumstances o pe plight, for to tax penance right. 1387 TREVISA Higden (Rolls) VIII.271 pe chirches of Engelond were i-taxed to pe verray val (orig. secundum valorem tax-atae sunt). 1424 Paston Lett. I. 13 The damages.. were taxed to cxxli. 1530-I Act 22 Hen. VIII, c. 15 Fines and amerciamentes affiered, taked, sette, extreted, or judged, 1551 in W.H. Turner Select. Rec. Oxford (1880) 207 Tax-able to suche taxe and tallenge as shall be up-on hym taxed and sessyd. 1552 Huloet, Tax damages in sute, sesti mare litem. 1592 Acts Court Requests 97 The costs to be taxed to the vttermost charge approved due. 1768 BLACK STONE Comm III. xxiv. 400. These costs on both sides are taxed and moderated by the... proper' officer of the court. 1885 Daily Tel. 24 Dec (Cassell A returning officer, whose bill of costs has been taxed on the application of the candidates."
Under the abovequoted definition at serial No.l in para. 3 under the caption 'Law' the cost is included in the ambit of the tax and the word Taxing Master has also been defined a8 law Court official who taxes costs. In the second definition also the similar definition has C been given. We are, therefore, inclined to hold that though the word costs does not figure in explanations 3 to subsection (3) of section 44-A, C.P.C. but the words taxes or other charges of like nature connote and cover the costs. The conclusion arrived at by the learned Single Judge in the order under appeal seems to be in consonance with law and, therefore, the above appeal has no merits It is dismissed, but there will be no order as to costs.
A.A./H-30/K Appeal dismissed
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