In Pakistan, the execution of foreign judgments is regulated under the Code of Civil Procedure, 1908 (“CPC”). The CPC provides three different options for the enforcement and execution of foreign judgments in Pakistan. This includes (1) direct execution under section 44-A of the CPC where the country rendering the judgment is recognized as a “reciprocating territory”, (2) filing a separate suit in Pakistan on the basis of a foreign judgment under section 13 of the CPC by using the foreign judgment as an independent cause of action; and (3) filing a separate suit on the original cause of action based on the principle that till decree is not satisfied, the cause of action remains intact.
Options (2) and (3) are time-consuming as they require the filing of a separate suit. These follow the standard procedure for filing cases in Pakistan and are therefore not recommended in cases where the requirements of option (1) can be satisfied.
This note will therefore examine the first option only.
Execution of Foreign Judgments in Pakistan under section 44-A CPC
Section 44-A can only be invoked where the foreign decree has been passed by the (i) “superior court” of a (ii) country that has been notified as a “reciprocating territory”.
Under section 44-A of the CPC, a decree rendered by a foreign court of a reciprocating territory can be directly executed in Pakistan by filing an execution application before a District Court for its execution without having to file a separate suit. In other words, the decree of the foreign court of the reciprocating territory is treated as if it were a decree of a competent court in Pakistan. Section 44-A provides:
(1) Where a certified copy of a decree of any of 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 proo1 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.
Exceptions to Enforcement of Foreign Judgments in Pakistan
Although as a matter of general principle, foreign judgments in Pakistan are entitled to (i) a presumption of correctness for having been passed by a court of competent jurisdiction and (ii) a presumption for being conclusive between the parties, these presumptions may be displaced in accordance with sections 14 and 13 of the CPC respectively.
In fact, sub-section (3) of the section 44-A provides that a District Court may “refuse execution” of the decree if it can be “shown to the satisfaction” of the court that the decree falls within any of the exceptions given in clauses (a) to (f) of section 13. Although the threshold for meeting these exceptions is not easy to satisfy, in practice it is used frequently to frustrate the process of executing the decree.
Similarly, section 14 reads as follows:
The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.
Thus, it is not uncommon for defendants to argue that the foreign judgment should not be recognized on any of the grounds given in section 13 and 14 of the Civil Procedure Code.
The process for enforcement / execution of foreign judgments in Pakistan
Under the applicable law in Pakistan, an execution application under section 44-A must be made in writing as per Order 21, Rule 11 of the CPC. It must also set out the particulars mentioned in rule-article (2) and specify how and in what manner the court is required to execute the decree.
Section 30 of the CPC provides two modes in which a court may execute a money decree:
30. Decree for payment of money. Every decree for the payment of money …. may be executed by the detention in prison of the judgment-debtor, or by the attachment and sale of his property, or both.
Thus, a money decree can be executed either by attachment and sale of the judgment-debtor’s property and/or his arrest and detention in prison which may ordinarily be ordered for a period of up to one year. Both processes may be executed simultaneously. However, under Order 21, Rule 21 of the CPC the executing court “may, in its discretion, refuse execution at the same time against the persons and property of the judgment-debtor”.
The execution of money decree through attachment and sale of property includes both movable and immovable property. Section 60 of the CPC specifies the types of properties that are liable to attachment and sale in execution of a decree. This includes lands, houses, other buildings, goods, moneys, bank-notes, cheques, bonds, shares in a corporation and all other properties as specified in section 60. Once a property has been attached, any subsequent transfer or “any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment” is void under section 64 of the CPC.
Similarly, immovable property of the judgment-debtor can also be attached by order of the executing court under Order 21 Rule 54 of the CPC. According to the Lahore High Court in Messrs Hanif Metal Store v. Bank of Punjab 2017 CLD 447, “the attachment of property is a protective measure taken by Court to keep property intact so as to enable the decree holder to satisfy the decree therefrom. The object of attachment is also to give notice to the judgment debtor not to alienate his property and general public not to accept any alienation from him.”
After a property has been attached, the executing court proceeds to order a sale of the said property under Order 21, Rule 64:
64. Power to order property attached to be sold and proceeds to be paid to person entitled. Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.
Every sale in execution of a decree in Pakistan is done under the supervision of the executing court which steers and monitors the process from start to finish.
It is important to note however that in Pakistan, the decree-holder must assist the executing court for the full and complete execution of the decretal amount. For instance, at the time of filing the application for execution, Order 21, Rule 13 requires the decree-holder to mention the immovable property owned by the judgement-debtor that can be sold to realize the decree. Similarly, as a matter of practice, execution applications often list down a number of assets owned by the judgment-debtor which the court is required to attach and sell.
In those rare cases where the decree holder is unable to provide any details of the judgment-debtor’s property, expert legal advice may have to be solicited to employ provisions pertaining to discovery and document production in order to trace and identify the defendant’s assets.
The team at ABS & Co is adept at bringing enforcement proceedings in Pakistan on the basis of foreign judgments and decrees having done so successfully in the past.
