The Karnataka high court has said that an order passed by a foreign court cannot be executed if it is not conclusive and not on merits.
Justice H P Sandesh observed this while allowing a civil revision petition filed by the Karnataka State Road Transport Corporation (KSRTC).
The matter pertains to an execution petition filed by Nigel Roderick Lloyd Harradine and his wife Carol Ann Harradine, residents of Surrey, United Kingdom.
On August 17, 2017, the Additional City Civil Judge, Bengaluru, had rejected the application filed by KSRTC, contesting the execution application.
The couple was on a visit to India in 2002 and on March 18, 2002, the car in which they were heading from Mysuru to Gundlupet was involved in an accident with a KSRTC bus moving from Gundlupet to Nanjangud.
Since the car was engaged for transportation by UK-based firm Somak Travels Limited, the couple preferred the claim before the Exeter County Court, United Kingdom.
The county court awarded costs/damages of around £ 52,000 and this order was affirmed in August 2010.
In 2011, the couple moved the Bengaluru court for execution of the orders passed by the British court.
In August 2012, an order of attachment was passed and the application filed by the KSRTC was rejected.
The KSRTC submitted that the judgment and decree passed by the foreign court was without jurisdiction and it has not followed the recognized law of our nation or international law.
It was claimed that the executing court in Bengaluru erroneously invoked Section 44 of the CPC and added that even as per Section 44A (1) and (2) of CPC, a certificate should be accompanied with the certified copy of the judgment.
It was submitted that the executing court had allowed the execution petition on the basis of the photocopy of the judgment.
Justice Sandesh noted that in the International Woollen Mills case, the Apex Court had given a specific finding that if an order is passed without considering any evidence and also no evidence is adduced on the plaintiff’s side and suit is decreed merely because of the absence of the defendant, either by way of penalty or in a formal manner, the judgment may not be one based on the merits of the case.
“The trial court, while invoking Section 44A, comes to the conclusion that the same can be enforced in India, but fails to take note of the fact that the judgment of the foreign court is not on merits. No doubt, admittedly, notice was given and the same was served through an advocate and revision petitioner (KSRTC) also claims that they sent the reply and the same is not forthcoming in the order of the foreign court and nothing is discussed in the order even for the objection which has been raised,” the court said.