ORDER
Nishita Mhatre, J.
1. The present notices have been issued in Execution Applications filed by the defendants against the plaintiff for recovering the costs which have been awarded to them by the English Courts. The matter in dispute has arisen as follows:
An article was published in the issue of the “Sunday” dated 13/19-6-1993 concerning the plaintiffs and which they found to be defamatory. The plaintiffs, therefore, filed a suit for damages in the English Court in 1993 alleging that the article was defamatory. Defendant No. 3 was the publisher and Defendant No. 4 was the Distributor of the magazine. On 13-8-1993. Defendant No. 4 made an application before the Master Queen’s Bench Division for stay of the suit on the ground that the English Court had no jurisdiction to try the suit as the magazine was published from India and the proper Court would be the Indian Court. This application of Defendant No. 4 was dismissed by the Master on 28-3-1994. An appeal was preferred by Defendant No. 4 against the order of the Master to the learned Chamber Judge, French, J. On 9/10-6-1994, the appeal of Defendant No. 4 was allowed on merits after hearing both sides on the issue as to whether the Indian Courts were the proper forum or the English Courts to try a suit for defamation in respect of a publication from India. The suit was accordingly stayed and the plaintiffs were directed to pay costs to Defendant No. 4. Aggrieved by this order, the plaintiffs approached the Court of Appeal on 6-7-1994. An application was made by Defendant No. 4 to the Registrar of the Court of Appeal for security of costs to be furnished by the plaintiffs.
On 28-7-1993, Defendant No. 3 made an application to the Master for stay of the suit on the ground of lack of jurisdiction of the English Court. The application was referred to the learned Chamber Judge, in view of the order passed in the Appeal preferred by Defendant No. 4. The application of Defendant No. 3 was allowed and the suit was stayed. Costs were reserved to the Court of Appeal. This order was passed on 27-10-1994 against which the plaintiffs preferred an appeal. Defendant No. 3 then made an application for security of costs in the sum of 20850 to Defendants Nos. 4 and 12371 to Defendant No. 3. The plaintiffs accordingly, deposited the amount for Defendant No. 4 but not for Defendant No. 3.
The Court of Appeal on 8-6-1995 dismissed the plaintiffs’ appeal with costs to be paid to Defendants Nos. 3 and 4. The plaintiffs had remained absent at the hearing of the appeal. Again, this order was passed after the Court of Appeal decided the same on merits. On 28-6-1996, the Taxing Master quantified the costs for the proceedings. Defendants Nos. 3 and 4 were awarded 26835.30 and 64175.05 respectively for the proceedings before the Master and the learned Chamber Judge for which Notice Nos. 1774 of 1997 and 1773 of 1997 have been taken out in this Court, Defendant No. 4 was awarded 32594.67 as costs for the proceedings before the Appeal Court. Out of this amount, a sum of 20850 was recovered from the security furnished by the plaintiffs and Notice No. 1772 of 1997 has been issued to recover the balance 11744.67. The Notices issued have been served on the plaintiffs who oppose the same.
2. Mr. Grover, learned counsel appearing for the plaintiffs, submits that the award of costs cannot be recovered by execution proceedings as this was not a judgment as contemplated under Section 13 of the C.P.C He further submits that since no evidence was led while delivering the order, it is not a judgment which is conclusive as it has not been given on merits of the case as required under Section 13(b) of the C.P.C. For this, he relies on the judgments in the cases of R. Vishwanathan v. Abdul Majid, ; K. M. Abdul Jabbar v. Indo Singapore Traders P. Ltd., AIR 1981 Mad 1182; Algemene Bank Nederland NV v. Satish Dayalal Choksi, and International Woollen Mills v. Standard Wool (U.K.) Ltd., . He further submits that a decision in respect of forum non-conveniens is not an adjudication and, therefore, Section 13 of the Code is not attracted. He submits that although the plaintiff was heard and was represented before the learned Chamber Judge, the appeal was decided ex parte. No evidence was led before the learned Chamber Judge and therefore there was no decree which could be executed. The main issue according to the learned counsel was the defamatory article and the suit for damages which the plaintiffs have filed. He submits that it was only if the decision in the suit for damages had been given a foreign Court could it be conclusive as the evidence would have been led and there would have been a final adjudication on the matter. The learned counsel then submits that the Taxing Master had issued notices to the plaintiffs which they did not receive. The order was passed on 28-6-1996 quantifying the costs. Plaintiff No. 1 died in custody in India on 7-7-1995. Therefore, the decision of the Taxing Master was admittedly without hearing plaintiff No. 1. He then submits that in any event. Plaintiff No. 2 who is the wife of Plaintiff No. 1 does not reside in Mumbai and has no establishment in Mumbai and, therefore, no proceedings for execution could have been initiated in this Court. He also submits that before initiation of the execution proceedings, the defendants ought to have sought for permission as required under the Foreign Exchange Regulation Act. He then submits that the order directing costs to be paid to Defendants Nos. 3 and 4 is not based on any right of the defendants to claim costs. He submits that under Order 62, Rule 2, the Rules of the Supreme Court of England, the English Courts may award costs as a matter of right to a party; whereas before the Indian Courts, costs are a matter of discretion and, therefore, the execution of an order for payment of costs would not lie in this Court.
3. On the other hand, Dr. Tulzapurkar interpreted Section 13 to mean that “any matter” that is any issue which was adjudicated by a foreign Court would be a judgment which was conclusive under Section 13 of the Code if the exceptions listed in Section 13 are not attracted. He submits that issue which was decided by the English Courts was forum non-conveniens. There was an adjudication on this matter and that adjudication was on the merits of the issue forum non-conveniens and since, the parties were heard, Section 13 was clearly attracted and an execution application would lie. He further submits that the decision in appeal was also on merits as the grounds raised in the appeal memo were that the order passed by the learned Chamber Judge on the issue of forum non-convenience were wrongly decided. He urges that the appeal was decided on merits and the plaintiffs chose not to be present when the appeal was decided. Therefore, they could not how take shelter of their absence at the proceedings before the appeal Court. As regards Mr. Grover’s submission that the Taxing Master had decided the costs without notice to Plaintiff No. 1 who had already expired, he submits that Plaintiff No. 2 had been served and she was the heir and legal representative of Plaintiff No. 1. Therefore, there was no need to serve her afresh of to bring the other heirs on record. He submits that if one heir of the deceased is on record, there is no need to bring the other heirs on record as that heir would represent the other legal heirs and representatives. In any event, according to the learned Counsel, the decision was taken by the learned Chamber Judge and the Court of Appeal to award costs and Taxing Master merely quantified the same. He then submits that a proper reading of Order 62, Rule 2 would establish the fact that the costs to be awarded even by English Courts are discretionary and not by way of any entitlement or right of the parties. As regards the submission of the learned Counsel for the plaintiffs that this Court would have no jurisdiction to decide the execution application. Dr. Tulzapurkar submits that under Section 44A of the Code, an execution application passed by a Court in reciprocating territories could be filed in the District Court. The High Court could be considered as the District Court and, therefore, execution of the foreign decree would lie in this Court as well. The concept of residence of the judgment-debtor need not be taken into consideration for the purpose of filing of an execution application as it would lie in any District Court. He also urges that none of the exceptions of Section 13 are attracted as the decisions of both the learned Chamber Judge and the Court of Appeal were on merits and the decision of the Court of Appeal though ex parte was not by way of default. In these circumstances, he urges that the notices be made absolute.
4. The judgment of the Apex Court in the case of M/s, International Woollen Mills (supra) is one of the latest judgment on the question as to whether a foreign judgment can be executed in India. The earlier judgment in R. Vishwanathan (supra) and the judgment of the Bombay High Court in Algemene Bank Nederland (supra) have been considered. In this case, the Apex Court has held that the burden of proving that the decree is not on merits is on the party alleging it. To establish that the decree is not on merits it would be necessary, as held by the Apex Court, for a party to show amongst other things that there was existence or lack of existence of material before the Court when that decree was passed and the manner in which the decree was passed. While considering whether an ex parte judgment could be said to be on merits, the Apex Court held thus :
“27. Reliance was also placed upon the case of Chintamoni Padhan v. Paika Samal, reported in AIR 1956 Orissa 136. In this case it has been held that a judgment on the merits is one which is entered after a full trial of the issues through pleadings, presentation of evidence, and arguments by both sides. It is held that the expression ‘judgment or the merits’ implied that it must have been passed after contest and after evidence had been let in by both sides. In our view the authority also cannot be said to be laying down the correct law. In a given case, it is possible that even though defendant has not entered evidence the plaintiff may prove its case through oral and documentary evidence. If after consideration of oral and/or documentary evidence an ex parte decree is passed, it would be a decree on merits.
28. In the case of Trilochan Choudhary v. Dayanidhi Patra, , the abovementioned decision in Chintamoni Padhan’s case, AIR 1956 Orissa 136 has been overruled, in the case it is held that under Section 13(6) even an ex parte judgment in favour of the plaintiff may be deemed to be a judgment given on merits if some evidence is adduced on behalf of the plaintiffs and the judgment, however, brief, is based on a consideration of that evidence. Where however, no evidence is adduced on the plaintiffs side and his 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. In our view this authority laid down the correct law.”
5. The Apex Court has enunciated the law on the subject as to whether a decree of a foreign Court is executable in India and the circumstances in which a decision could be considered, to be on merits or a decision in default. The proposition that Mr. Grover sought to canvass that it is only if evidence is led in a matter that the decision can be considered to be on merits, is very wide. For example, if there is a decree on admission, there would not be any need to lead evidence in the matter; yet if the decree is not satisfied it would always be open to the parties to execute the same. Again, in a case where a summary suit has been tiled and leave to defend has not been granted by the Court, the Court can still decide the suit without any evidence being led on the basis of the material on record, on the Summons for Judgment being moved. A decree passed in such a suit can also be executed. Hence, it is not that in every matter evidence must be led for a judgment to be treated as a decision on merits. The words of Section 13 are unambiguous and are as follows:
“13. When foreign judgment not conclusive.– A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
6. The submission of Dr. Tulzapurkar that the term “matter” used in the Section 13 of C.P.C. refers to an issue to be decided is well founded. It is not as if the entire case has to be adjudicated upon and only then can the decision be executed. When an issue is decided or adjudicated upon, it would mean that the issue has been conclusively decided between the parties. Adjudication in every case does not mean that evidence must be led. The term “adjudication” means to decide on, pronounce, sit in judgment. This decision or pronouncement can be made even without evidence being led by the parties if there is sufficient material for the adjudicating authority to draw any conclusion in respect of the issue involved between the parties. Therefore, the adjudication of a matter on merits would not necessarily mean that evidence must be led. In fact, if the parties agree that no evidence need be led in a particular case and merely rely on the pleadings and submissions made, it could not be said that a decision in such a case would not be on merits. The issue or the “matter” which the learned Chamber Judge was required to consider and to adjudicate upon between the parties was forum non-conventens. A perusal of the judgment of the learned Chamber Judge indicates that the decision was taken by him on merits.
7. Both the parties were heard by the learned Chamber Judge in extenso. Costs were awarded after hearing both the learned Counsel, who appeared before the learned Chamber Judge. The Court of Appeal also passed an order upon reading notices dated 22-9-1994 and 2-6-1995 filed on behalf of Defendant No. 4. The order of the learned Chamber Judge dated 10-6-1994 was affirmed and the libel action was stayed by the Appeal Court while directing the plaintiffs to pay costs to Defendant No. 4.
8. The submission made by Mr. Grover that the Taxing Master’s order directing the plaintiffs to pay costs cannot be executed in view of the fact that Plaintiff No. 1 had expired before the Taxing Master’s order cannot be accepted. The Taxing Master merely quantified the costs which were awarded by the learned Chamber Judge and the Court or Appeal, when admittedly plaintiff No. 1 was alive. In any event, the heir and legal representative of Plaintiff No. 1 was on record as Plaintiff No. 2 was the wife of Plaintiff No. 1. Therefore, whether or not Plaintiff No. 1 was served with the notice from the Taxing Master would matter little in the execution of the decree.
9. The next submission of Mr. Grover that Plaintiff No. 2 is not residing in the city of Mumbal and, therefore, the present action is without jurisdiction is also without any substance. Section 44A clearly gives jurisdiction to this Court as it stipulates that the execution of a decree of a reciprocating Court can be filed in a District Court. The High Court for the purposes of execution of the decree would be considered as the District Court and, therefore, the present execution application has been filed before the proper forum.
10. A perusal of Order 82, Rule 2 of the Rules of the Supreme Court of England which Mr. Grover relied on also does not indicate that costs can be awarded only as a matter of right and not by way of discretion. Therefore, this submission of the learned Counsel also cannot be accepted. As regards the submission made by Mr. Grover that permission ought to have been sought under the Foreign Exchange Regulation Act, this argument is of no consequence now in view of the new enactment — Foreign Exchange Management Act.
11. In the circumstances, all the notices are made absolute and disposed of accordingly.
Ms. Moosa, learned counsel for the plaintiffs, seeks stay of this order for eight weeks. Order accordingly stayed for eight weeks.
Certified copy expedited.