BANK OF BARODA versus KOTAK MAHINDRA BANK LTD.

Citation: [2020] 5 S.C.R. 492 · Decided: 17-03-2020 · Supreme Court of India · Bench: DEEPAK GUPTA · Disposal: Dismissed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 5 S.C.R.
BANK OF BARODA
v.
KOTAK MAHINDRA BANK LTD.
(Civil Appeal No. 2175 of 2020)
MARCH 17, 2020
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Limitation Act, 1963 – Arts. 136 and 137 – Executing a decree
passed by a foreign court (from a reciprocating country) in India –
Period of limitation for – Held: The limitation period for executing
a decree passed by a foreign court (from a reciprocating country)
in India will be the limitation prescribed in the reciprocating foreign
country – However, this will be subject to the decree being executable
in terms of s.13 of the CPC.
Code of Civil Procedure, 1908 – s. 44A – Limitation Act, 1963
– s.44A indicates period of limitation to execute the foreign decree
or not – Held: s.44A only empowers the District Court to execute
the foreign decree as if it had been passed by the said District Court
–  s.44A enables the District Court to execute the decree and further
provides that the District Court shall follow the same procedure as
it follows while executing an Indian decree, but it does not lay down
or indicate the period of limitation for filing such an execution
petition.
Limitation Act, 1963 – Art. 137 – From which date the period
of limitation will run in relation to a foreign decree (passed in a
reciprocating country) sought to be executed in India – Held: The
period of limitation would start running from the date the decree
was passed in the foreign Court of a reciprocating country –
However, if the decree-holder first takes steps-in-aid to execute the
decree in the cause country i.e. the country in which decree was
issued, and the decree is not fully satisfied, then he can then file a
petition for execution in India within a period of 3 years from the
finalisation of the execution proceedings in the cause country.
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Dismissing the appeal, the Court
HELD: Does Section 44A merely provide for manner of
execution of foreign decrees or does it also indicate the period
of limitation for filing execution proceedings for the same?
1. In view of this Court, Section 44A of Code of Civil
Procedure, 1908 is only an enabling provision which enables the
District Court to execute the decree as if the decree had been
passed by an Indian court and it does not deal with the period of
limitation.  A plain reading of Section 44A clearly indicates that it
only empowers the District Court to execute the foreign decree
as if it had been passed by the said District Court.  It also provides
that Section 47 of the Act shall, from the date of filing of certified
copy of the decree, apply. Section 47 deals with the questions to
be determined by the court executing a decree.  Execution of a
decree is governed under Order 21 of CPC and, therefore, the
provisions of Section 47 of the Act and Order 21 of CPC will
apply.  In view of this Court, Section 44A has nothing to do with
limitation. [Para 19][503-C-E]
2. Section 44-A clearly provides that it is only after the filing
of the certified copy and the certificate, that the provision of
Section 47 CPC will become applicable.  This clearly indicates
that this section only lays down the procedure to be followed by
the District Court. [Para 20][503-F]
3. In view of this Court Section 44A only enables the District
Court to execute the decree and further provides that the District
Court shall follow the same procedure as it follows while
executing an Indian decree, but it does not lay down or indicate
the period of limitation for filing such an execution petition. [Para
21][504-A-B]
What is the period of limitation for executing a decree
passed by a foreign court (from a reciprocating country) in India?
4. The old position under common law was that limitation
was treated as a procedural law. In countries following civil
jurisdiction, the law of limitation has never been treated as a
procedural law but as a substantive law. In recent years, almost
all the common law countries have either brought a new legislation
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD.
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or by judicial decisions have now taken the view that the law of
limitation cannot be treated as a purely procedural law.  Reference
may be made to the law in the United Kingdom and the United
States of America. [Para 31][509-E-F]
5. The view worldwide appears to be that the limitation law
of the cause country should be applied even in the forum country.
Furthermore

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