The Green Branches Trading Co (LLC) v. Shabana Trading and Chulliyil Madhavan Sobhanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 1[ST] DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944** **CRP NO.181 OF 2022** **AGAINST THE COMMON ORDER PASSED IN E.A.NO.205/2021 AND E.A.NO.206/2021 IN E.P.NO.687/2011 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, ERNAKULAM.** ## **PETITIONER/DECREE HOLDER/PETITIONER:** **THE GREEN BRANCHES TRADING CO(LLC) REPRESENTED BY ITS MANAGING DIRECTOR M. HAMZA MANDAKATHINGAL HOUSE, THALAKADATHUR, THIRUR, MALAPPURAM, PIN-676 103.** **BY ADVS. SHYAM PADMAN C.M.ANDREWS BOBY M.SEKHAR LAYA MARY JOSEPH HARISH ABRAHAM ASHWATHI SHYAM** ## **RESPONDENTS/JUDGMENT DEBTORS/RESPONDENT:** **1 SHABANA TRADING REPRESENTED BY ITS PROPRIETOR MADHAVAN SOBHANAN, HOUSE NO.43/714A, ISWARYA, THRIKKANARVATTOM, KANAYANOOR TALUK, ERNAKULAM DISTRICT, COCHIN-682 018.** - **2 CHULLIYIL MADHAVAN SOBHANAN, HOUSE NO.43/714A, ISWARYA, THRIKKANARVATTOM, KANAYANOOR TALUK, ERNAKULAM DISTRICT, PIN-682018.** **BY ADVS. B.N.SHIVSANKAR TINU T.JOSEPH ARCHANA HARIDAS K. HOSH P. DAS** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- **CRP NO.181 OF 2022** ## **C.S. DIAS, J.** **-------------------------------------------------------CRP No.181 of 2022 -------------------------------------------------------Dated this the 1[st] day of September, 2022** ## **ORDER** Aggrieved by the order in E.A. Nos.205 and 206 of 2021 in E.P.No.687 of 2011 of the Court of the I Additional District Judge, Ernakulam, the decree holder is in revision. The judgment debtors are the respondents. 2. The concise case of the revision petitioner is: the revision petitioner is the holder of a decree dated 27.11.2000 passed by the Al Ain Federal Court of First Instance of United Arab Emirates (in short, U.A.E.), passed against the respondents. The revision petitioner put the decree to execution before the court below against the respondents. The court below dismissed the execution petition on the ground that the revision petitioner failed to produce the notification contemplated under Section 44A of the Code of Civil Procedure, 1908 -3- **CRP NO.181 OF 2022** (in short, 'the Code'), declaring U.A.E. as a reciprocating territory. Even though the revision petitioner filed an application to restore the execution petition with an application to condone the delay, the applications also met with the same fate of dismissal for non-production of the notification. The impugned order is improper, irregular and unsustainable in law. Hence the revision petition. 3. Heard; Sri. Shyam Padman, the learned counsel appearing for the petitioner and Sri. B.N. Shiva Shankar, the learned counsel appearing for the respondents. 4. The question is whether there is any impropriety, irregularity or illegality in dismissing the execution petition for non-production of the notification that the U.A.E. is a reciprocating territory with India. 5. The petitioner laid the decree to execution, to realise an amount of Rs.78,87,888.12 from the respondents. The respondents objected the same -4- **CRP NO.181 OF 2022** contending that U.A.E. is not a reciprocating territory with India as stipulated under Explanation 1 to Section 44A of the Code. The court below dismissed the execution petition for non-production of notification. Even though a restoration petition was filed, the same was also dismissed on the same ground of non-production of the notification. ## 6. This Court in **Kadheeja Kalladi** **Puthanpurayil v. Mohammed Naizir Abdul Aziz [2021 (3) KHC 157]** has categorically laid down the law as follows: “4. The notification issued by the Central Government dated 17.01.2020 is a declaratory notification. It is the settled principle of law that the declaratory statute or notification would operate retrospectively unless the contrary is expressed in the statute or notification. Craies on Statute Law (Seventh Edition) states as follows: "For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any -5- **CRP NO.181 OF 2022** statute. Such Acts are usually held to be retrospective." In Maxwell Interpretation of Statutes (Eight Edition), page 196, it is stated as follows: "...If a statute is in its nature a declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable..." 5. In Fazal Begum v. Hakim Ali (MANU/LA/0078/1940: AIR 1941 Lah 22) the High Court of Lahore opined, after referring to Craies on Statute Law and Maxwell Interpretation of Statutes, that the declaratory statute has retrospective effect. The Apex Court in Zile Singh v. State of Haryana & Ors. (MANU/SC/0876/2004: 2004 (3) KLT OnLine 1205 (SC): (2004) SCC 1) held that presumption against retrospective operation is not applicable to declarative statute. The similar view was followed by the Apex Court in Commissioner of Income Tax 1, Ahmedabad v. Gold Coin Health Food Private Limited MANU/SC/3523/2008: (2008 (3) KLT OnLine 1140 (SC): (2008) 9 SCO 622) and in State of Bihar & Ors. v. Ramesh Prasad Verma (Dead) through Legal Representatives MANU/SC/0088/2017 (2017 (1) KLT OnLine 2023 (SC): (2017) 5 SCC 665). ## **6. The notification issued by the Central** -6- **CRP NO.181 OF 2022** **Government is in the nature of declaration that UAE is a reciprocating territory for the purpose of S. 44A of the Code of Civil Procedure. Such a declaration is issued in the light of the power conferred under explanation 1 to S. 44A. The reciprocity is relatable to the bilateral agreement entered into between India and UAE on 25.10.1999. The declaration as above is a matter that is covered by the agreement. The declaration always need to be construed with reference to something in existence. That be so, it must be related to the agreement. We are in such circumstances of the view that the decree of UAE court covered by notification issued on or after 25.10.1999 can be executed in Indian Courts.** We hold that contrary view taken by the learned Single Judge of this Court in Manoj Moolekkudi Subramanyan's case (supra) is not a correct finding of law. Accordingly, the impugned order is set aside. **The execution petition is restored to the file. The parties are directed to appear before the Family Court on 20.05.2021.** ” 7. The exposition of law by this Court establishes that the bilateral agreement was entered between India and U.A.E. on 25.10.1999 and the declaration was -7- ## **CRP NO.181 OF 2022** published on 17.01.2020. On the coming into force of the declaration, all decrees passed by the courts in U.A.E. from 25.10.1999 are executable in the courts in India. Therefore, the conclusion arrived by the execution court is erroneous and unsustainable in law. 8. The court below was bound to take judicial notice of the bilateral agreement and the subsequent declaration published, instead of perfunctorily dismissing the execution petition on the objection of the respondents. The dismissal of the restoration application and delay condonation application is also erroneous. 9. Considering the undisputed fact that the decree was passed subsequent to bilateral agreement and that declaration has retrospective effect, I hold that the respondents' contention regarding non-executability of the decree for the absence of notification under Explanation 1 to Section 44A of the Code is untenable. 10. In the above factual and legal matrix, I restore -8- ## **CRP NO.181 OF 2022** the execution petition to file and leave the question regarding the executability of the decree as per the provisions of the Code and other laws in vogue to be reconsidered by the court below in accordance with law, after adverting to all the contentions raised by both sides. In the result, I allow the revision petition in the following manner: (i) Ext.P4 is set aside. (ii) E.P.No.687 of 2011 is restored. (iii) The respondents would be at liberty to file their objections to the execution petition. (iv) The court below shall consider the execution petition after adverting to the objections raised by the respondents and dispose of the same in accordance with law. Sd/- **C.S. DIAS JUDGE** bpr