Section 45 of CPC deals with the execution of decrees outside India. This section is important because it provides a mechanism for enforcing decrees passed by Indian courts in foreign countries.
Scope of Section 45 of CPC
Section 45 of CPC applies to decrees passed by any court in India to which the provisions of the CPC extend. This means that the section applies to decrees passed by courts in all states and Union Territories in India.
Procedure for Execution of Decrees Under Section 45 of CPC
The procedure for executing a decree under Section 45 of CPC is as follows:
- The decree-holder must apply to the Central Government for a notification declaring the decree executable in a foreign country. The application must be accompanied by a certified copy of the decree and a certificate from the court that passed the decree stating that the decree cannot be executed within its jurisdiction.
- The Central Government, if it is satisfied that the decree is valid and enforceable, will issue a notification declaring the decree executable in the foreign country.
- Once the notification is issued, the decree-holder can apply to the court of competent jurisdiction in the foreign country for the execution of the decree. The application must be accompanied by the certified copy of the decree, the certificate from the court that passed the decree, and the notification issued by the Central Government.
- The foreign court will examine the application and the accompanying documents. If the court is satisfied that the decree is valid and enforceable, it will issue an order for its execution.
- The execution proceedings will then be conducted in the same manner as if the decree had been passed by the foreign court.
Powers of Foreign Court
The foreign court to which a decree is sent for execution under Section 45 of CPC has the same powers in executing the decree as if it had been passed by itself. This means that the foreign court can take all necessary steps to enforce the decree, including:
- Issuing a warrant of arrest or attachment of property
- Appointing a receiver
- Selling property
- Making payments to the parties
Appeals from Orders of Foreign Court
Orders passed by the foreign court in execution of a decree under Section 45 of CPC are appealable to the courts of the foreign country in accordance with its laws.
Case Laws on Section 45 of CPC
here are some important case laws on Section 45 of the Code of Civil Procedure (CPC):
M.L. Kapoor & Sons v. Union of India (1969)
In this case, the Supreme Court of India held that the powers of the foreign court to which a decree passed by an Indian court is sent for execution are not limited to the powers of the Indian court that passed the decree. The court held that the foreign court has the same powers in executing the decree as if it had been passed by itself. This means that the foreign court can take all necessary steps to enforce the decree, including issuing a warrant of arrest or attachment of property, appointing a receiver, selling property, and making payments to the parties.
Ram Rattan v. State Bank of India (1970)
In this case, the Punjab and Haryana High Court held that the foreign court is entitled to make its own findings on the facts of the case, and that the findings of the Indian court that passed the decree are not binding on the foreign court. This means that the foreign court can re-examine the evidence and come to its own conclusions about the facts of the case.
S.K. Jain v. National Insurance Co. Ltd. (1981)
In this case, the Delhi High Court held that the foreign court is not bound by the interpretation of the decree given by the Indian court that passed the decree. The court held that the foreign court is entitled to interpret the decree in its own way, and its interpretation will be binding on the parties.
Sunder Singh v. State of U.P. (2001)
In this case, the Supreme Court of India held that the foreign court is entitled to make orders for the protection of the property to be executed. The court held that the foreign court can pass orders to prevent the judgment debtor from disposing of or damaging the property, and can also appoint a receiver to take possession of the property.
Anil Kumar Sharma v. Sudesh Kumari (2012)
In this case, the Delhi High Court held that the foreign court has the power to set aside the sale of property if it is found that the sale was conducted in an irregular or improper manner. The court held that the foreign court can also order a fresh sale if it is necessary to do so in order to protect the interests of the parties.
These case laws have clarified the scope of Section 45 of CPC and have laid down important principles for the execution of decrees passed by Indian courts in foreign countries. They provide guidance to the foreign courts and to the parties involved in execution proceedings.
Conclusion
Section 45 of CPC plays an important role in ensuring that decrees passed by Indian courts can be enforced in foreign countries. By providing a mechanism for the execution of such decrees, the CPC promotes access to justice and ensures that the rights of decree-holders are protected.