Holding

The limitation period for executing a foreign decree in India is the limitation prescribed in the reciprocating foreign country, commencing from the date of that decree, and if steps‑in‑aid are taken, the Indian execution petition must be filed within three years of the finalisation of the foreign execution proceedings.

Summary

The Bank of Baroda sought to enforce a London decree against Kotak Mahindra Bank under Section 44A of the CPC, filing the execution petition 14 years after the decree. The trial court dismissed the petition as time‑barred, applying the 12‑year period of Article 136 of the Limitation Act. On appeal, the Supreme Court examined whether Section 44A prescribes a limitation period, what period applies to foreign decrees, and from which date limitation runs. It held that Section 44A is merely an enabling provision and does not fix a limitation period. The applicable limitation is the period prescribed in the foreign (reciprocating) country, subject to the decree being executable under Section 13 CPC. The limitation starts from the date the foreign decree was passed, but if the decree holder has taken steps‑in‑aid in the foreign country, the Indian petition must be filed within three years of the finalisation of those foreign execution proceedings. Consequently, the execution petition filed in 2009 was barred, and the appeal was dismissed.

Issues considered

Whether Section 44A of the CPC indicates the period of limitation for filing execution proceedings of a foreign decree.
What is the period of limitation for executing a decree passed by a foreign court of a reciprocating country in India.
From which date does the limitation period run for such foreign decrees.

Legislation cited

Code of Civil Procedure, 1908s. Section 13, s. Section 44A, s. Section 47
Foreign Limitation Periods Act, 1984
Limitation Act, 1963s. Article 101, s. Article 136, s. Article 137, s. Article 39

Subjects

foreign decree executionlimitation periodSection 44A CPCLimitation Act 1963reciprocating territoryconflict of lawssubstantive vs procedural lawArticle 136Article 137

Judgment

492 [2020]REPORTS
SUPREME COURT 5 S.C.R. 492 [2020] 5 S.C.R.

A BANK OF BARODA
v.
KOTAK MAHINDRA BANK LTD.
(Civil Appeal No. 2175 of 2020)
B 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
C
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
D
– 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
E 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
F 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
G petition for execution in India within a period of 3 years from the
finalisation of the execution proceedings in the cause country.

H
492
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 493

Dismissing the appeal, the Court A
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 B
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 C
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 D
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 E
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 F
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?
G
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
H
494 SUPREME COURT REPORTS [2020] 5 S.C.R.

A 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
B of the cause country should be applied even in the forum country.
Furthermore, this Court is of the view that in those cases where
the remedy stands extinguished in the cause country it virtually
extinguishes the right of the decree-holder to execute the decree
and creates a corresponding right in the judgment debtor to
challenge the execution of the decree. These are substantive
C rights and cannot be termed to be procedural. As India becomes
a global player in the international business arena, it cannot be
one of the few countries where the law of limitation is considered
entirely procedural. [Para 33][511-C]
6. It has been already clearly indicated that if the law of a
D forum country is silent with regard to the limitation prescribed
for execution of a foreign decree then the limitation of the cause
country would apply. [Para 34][511-D]
7. This Court answers the question by holding that the
limitation period for executing a decree passed by a foreign court
E (from reciprocating country) in India will be the limitation
prescribed in the reciprocating foreign country. Obviously this
will be subject to the decree being executable in terms of Section
13 of the CPC. [Para 35][511-E]
From which date the period of limitation will run in relation
F to a foreign decree (passed in a reciprocating country) sought to
be executed in India?
8. The question that then arises is that from which date the
limitation starts. This Court envisages of 2 situations only. The
first situation is one where the decree holder does not take any
G steps for execution of the decree during the period of limitation
prescribed in the cause country for execution of decrees in that
country. In such a case he has lost his right to execute the decree
in the country where the cause of action arose. It would be a
travesty of justice if the person having lost his rights to execute
the decree in the cause country is permitted to execute the decree
H
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 495

in a forum country. This would be against the principle which we A
have accepted, that the law of limitation is not merely a procedural
law. This would mean that a person who has lost his/her right or
remedy to execute the foreign decree in the court where the
decree was passed could take benefit of the provisions of the
Indian law for extending the period of limitation. In the facts of
B
the present case, the limitation in India is 12 years for executing
a money decree whereas in England it is 6 years. There may be
countries where the limitation for executing such a decree may
be more than 12 years. The right of the litigant in the latter
situation would not come to an end at 12 years and it would abide
by the law of limitation of the cause country which passed the C
decree. Hence, limitation would start running from the date the
decree was passed in the cause country and the period of limitation
prescribed in the forum country would not apply. In case the
decree holder does not take any steps to execute the decree in
the cause country within the period of limitation prescribed in the
D
country of the cause, it cannot come to the forum country and
plead a new cause of action or plead that the limitation of the
forum country should apply. [Para 40][513-H; 514-A-E]
9. The second situation is when a decree holder takes steps-
in-aid to execute the decree in the cause country. The proceedings
in execution may go on for some time, and the decree may be E
executed, satisfied partly but not fully. The judgment debtor may
not have sufficient property or funds in the cause country to satisfy
the decree etc. In such eventuality what would be done? In view
of this Court, in such circumstances the right to apply under
Section 44A will accrue only after the execution proceedings in F
the cause country are finalised and the application under Section
44A of the CPC can be filed within 3 years of the finalisation of
the execution proceedings in the cause country as prescribed by
Article 137 of the Act. The decree holder must approach the
Indian court along with the certified copy of the decree and the
requisite certificate within this period of 3 years. It is clarified G
that applying in the cause country for a certified copy of the decree
or the certificate of part-satisfaction, if any, of the decree, as
required by Section 44A will not tantamount to step-in-aid to
execute the decree in the cause country. [Paras 41, 42][514-F-H;
515-A] H
496 SUPREME COURT REPORTS [2020] 5 S.C.R.

A 10. This Court answers the third question accordingly and
hold that 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, and the decree is not
fully satisfied, then he can then file a petition for execution in
B
India within a period of 3 years from the finalisation of the
execution proceedings in the cause country. [Para 43][515-B]
Income Tax Commissioner v. S. Teja Singh AIR 1959
SC 352 : [1959] Suppl. SCR 394 – referred to.
C Lakhpat Rai Sharma v. Atma Singh AIR (58) 1971
P & H 476; Uthamram v. K.M. Abdul Kasim Co. (AIR
1964) (Mad 221) – referred to.
Sheik Ali v. Sheik Mohamed AIR 1967 Mad 45
– not approved.
D East End Dwellings Co. Ltd. v. Finsburry Brough
Council 1951 (2) All E.R. 587 – referred to.
Sir Lawrence Collins et. al., “Dicey, Morris, & Collins
on The Conflict of Laws , 14th Edn., Sweet & Maxwell
pp. 198-199 (2006) – referred to.
E
Case Law Reference
[1959] Suppl. SCR 394 referred to Para 18
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2175
of 2020.
F From the Judgment and Order dated 13.11.2014 of the High Court
of Karnataka at Bangalore in Civil Revision Petition No.433 of 2013.
K. K. Venugopal, A.G., Ms. Praveena Gautam, Deepak Tyagi,
Pawan Shukla, Ankur Talwar, Raja Ram, Ms. Sweety Pandey, Sai
Anukaran, Advs. for the Appellant.
G
V. V. S. Rao, Sr. Adv., D. Bharat Kumar, Tadimalla Bhaskar
Gowtham, Aman Shukla, Siddharth Sinha, Vishal Arun, Raghu
Vamsy D.V., Advs. for the Respondent.

H
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 497

The Judgment of the Court was delivered by A
DEEPAK GUPTA, J.
1. Leave granted.
2. “What is the limitation for filing an application for execution of
a foreign decree of a reciprocating country in India?” is the short but B
interesting question which arises for decision in this case.
3. Vysya Bank, which is the predecessor of the respondent Kotak
Mahindra Bank Ltd., issued a letter of credit for US $1,794,258 on behalf
of its customer M/s. Aditya Steel Industries Limited in favour of
M/s. Granada Worldwide Investment Company, London. The appellant C
Bank of Baroda was the confirming bank to the said letter of credit.
The Vysya Bank issued instructions to the London branch of the appellant
on 12.10.1992 to honour the letter of credit. Acting on this instruction
the London branch of the appellant discounted the letter of credit for a
sum of US $ 1,742,376.41 and payment of this amount was made to
M/s Granada Worldwide Investment Company on 13.10.1992. D
4. The appellant Bank of Baroda filed a suit against the Vysya
Bank for recovery of its dues on 19.04.1993 in London. This suit was
decreed by the High Court of Justice, Queens Bench, Divisional
Commercial Court of London (hereinafter referred to as the ‘London
Court’) on 20.02.1995 and a decree for US $1,267,909.26 along with E
interest thereon was passed in favour of the appellant bank and against
Vysya Bank. The decree was not challenged and became final.
5. It appears that some talks went on between the two banks with
regard to the satisfaction of the decree. On 28.08.1995, Vysya Bank
placed an inter-bank deposit of US $ 1,400,000 with the main branch of F
the Bank of Baroda on rollover basis with a request that the decree
passed by the London Court be not executed. However, later in 2003
ING Vysya Bank, filed a petition before the Debt Recovery Tribunal
(DRT) for recovery of US $1,400,000. Those proceedings are being
contested by the Bank of Baroda and it appears that the proceedings
G
before the DRT are still pending and we make it clear that anything said
by us in this appeal will not affect those proceedings, since we are only
dealing with the issue of limitation for filing an execution petition of a
decree passed by a foreign court of a reciprocating country.

H
498 SUPREME COURT REPORTS [2020] 5 S.C.R.

A 6. On 05.08.2009, the appellant bank filed an execution petition
i.e. almost 14 years after the decree was passed by the London Court
for execution of the same in terms of Section 44A read with Order 21
Rule 3 of the Code of Civil Procedure, 1908 (CPC) for recovery of
Rs.16,43,88,187.86. This execution petition was contested mainly on the
ground that the same had not been filed within the period of limitation.
B
On 20.07.2013 the Additional City Civil & Session Judge, Bangalore
dismissed the execution petition as time barred holding that Article 136
of the Limitation Act, 1963 (for short ‘the Act’) applies and the execution
petition should have been filed within 12 years of the decree being passed
by the London Court. Aggrieved, the bank approached the High Court
C which vide judgment dated 13.11.2014 upheld the view of the trial court.
7. Sh. K. K. Venugopal, learned senior counsel appearing for the
appellant urged that the Act does not prescribe any period of limitation
for execution of a foreign decree passed in a reciprocating country. He
submits that in such eventuality principles of delay and laches as
D applicable to writ proceedings may apply and, therefore, he has relied
upon a long list of dates to show that the Bank of Baroda was pursuing
the matter and was trying its best to get the matter settled with Vysya
Bank and urges that there is no delay in filing the petition. His second
submission is that since no limitation is provided under the Act, the cause
of action to file an execution petition arises only when a petition is filed
E under Section 44A of the CPC which provides that a decree passed by
a court in a reciprocating country should be treated as an Indian decree
and, therefore, the limitation for 12 years provided under Article 136 of
the Act applies only from that date because that is the date when the
cause of action arises and the decree is treated to be an Indian decree.
F 8. On the other hand, Mr. V.V.S. Rao, learned senior counsel
appearing for the respondent urged that the law of limitation of England
would apply in this case. It is undisputed that the limitation period as per
English law is 6 years for execution of a decree, and hence the
respondent’s submission is that the decree having been passed on
G 20.02.1995, no petition for execution of that decree could be filed after
20.02.2001. The alternative argument of learned senior counsel for the
respondent is that even if the Indian law of limitation were to apply, the
limitation period for execution of a foreign decree would be determined
as per Article 136 of the Act. Section 44A of the CPC clearly provides
that a decree passed in a reciprocating country should be treated as an
H
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 499
[DEEPAK GUPTA, J.]

Indian decree and, therefore, the same must be enforced within 12 years A
from the date of passing of the decree as provided by Article 136 of the
Act.
9. To appreciate the rival contentions of the parties, it would be
necessary to refer to Section 44A of the CPC which reads as follows:
“44A. Execution of decrees passed by Courts in B
reciprocating territory.– (1) Where a certified copy of a decree
of any of the superior Courts of any reciprocating territory has
been filed in a District Court, the decree may be executed in as if
it had been passed by the District Court.
(2) Together with the certified copy of the decree shall be filed a C
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 proof of the extent of such satisfaction or adjustment.
(3) The provisions of section 47 shall as from the filing of the D
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. E
Explanation 1.- “Reciprocating territory” means any country or
territory outside India which the Central Government may, by
notification in the Official Gazette, declare to be a reciprocating
territory for the purposes of this section; and “superior Courts”,
with reference to any such territory, means such Courts as may F
be specified in the said notification.
Explanation 2.- “Decree” with reference to a superior Court
means any decree or judgment of such Court under which a sum
of money is payable, not being a sum payable in respect of taxes
or other charges of a like nature or in respect of a fine or other
G
penalty, but shall in no case include an arbitration award, even if
such an award is enforceable as a decree or judgment.”
10. At the outset, we may note that the aforesaid section was
inserted in the CPC in the year 1937. Prior to that, a decree passed by
any Court in a foreign country could not be executed in India and only a
H
500 SUPREME COURT REPORTS [2020] 5 S.C.R.

A suit could be filed on the basis of the judgment passed by a foreign court.
Section 44A brought about a change in law in respect of reciprocating
countries which agreed to respect the judgments and decrees passed in
each other’s courts. From a bare reading of Section 44A CPC it is crystal
clear that it applies only to money decrees and not to other decrees.
B 11. Considering the rival arguments before us, the following issues
arise for consideration:
(i) 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?
C (ii) What is the period of limitation for executing a decree passed
by a foreign court (from a reciprocating country) in India?
(iii) 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?
D
Question No. 1
12. A careful analysis of Section 44A hereinabove shows that a
decree passed by any superior court of a reciprocating territory can be
executed in India as if it had been passed by the District Court before
whom it is filed. Sub-section (2) of Section 44A casts an obligation on
E
the person filing such application to file a certified copy of the decree.
Such person must also file a certificate from the superior court which
passed the decree stating the extent, if any, to which the decree has
been satisfied or adjusted. This certificate shall be conclusive proof of
the extent of such satisfaction/adjustment. Sub-section (3) provides that
F from the date of filing of certified copy of the decree, the provisions of
Section 47 of CPC shall apply to such proceedings. The District Court
can refuse to execute any such decree if it falls within exceptions (a) to
(f) of Section 13. The first Explanation provides the definition of
reciprocating territory and superior courts. Explanation 2 is important
which provides that a decree must be a decree under which a sum of
G
money is payable excluding certain sums such as those payable as taxes,
fines, penalties etc. and also excludes arbitration awards by the foreign
courts.
13. At the outset, we may note that we are not at all in agreement
with the submission of Shri K.K. Venugopal that no limitation is
H
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 501
[DEEPAK GUPTA, J.]

applicable. These are not writ proceedings but execution proceedings. A
The Act is a complete code in itself and Section 3 clearly sets out that
subject to the provisions contained in Section 4 to Section 24 of the Act,
every suit instituted, appeal preferred, and application made after the
prescribed period shall be dismissed even if limitation has not been set
up as a defence. The word ‘application’ used is wide enough to include
B
an application filed for execution of a decree, even a foreign decree.
Therefore, the principles of delay and laches which may be applicable to
writ proceedings cannot be applied to civil proceedings and are not at all
attracted in proceedings filed under the CPC which, in our opinion, must
be filed within the prescribed period of limitation.
14. The main argument of Shri K.K. Venugopal is that limitation C
will start running only after the petition under Section 44A is filed.
According to him, the cause of action for executing the decree in India
arises only after the application under Section 44A is filed. This view
has also been taken by a Full Bench of the Madras High Court in the
case of Sheik Ali vs. Sheik Mohamed1. This view is however contrary D
to the view taken by the Punjab & Haryana High Court in Lakhpat Rai
Sharma vs. Atma Singh2.
15. We have carefully considered the matter and at the outset we
may note that there is no concept of cause of action in so far as an
execution petition is concerned. Cause of action is a concept relating to E
civil suits and not to execution petitions. Cause of action is nothing but a
bundle of facts which gives rise to a legal right enabling the plaintiff to
file a suit. On the other hand, a decree is a determination already made
by a court on the basis of a reasoned judgment. In case of a decree it
becomes enforceable the day it is passed. Therefore, we are clearly of
the view that filing of an application under Section 44A will not create a F
fresh period for enforcing the decree.
16. We clarify that for the purpose of this judgment we have used
the expressions, “cause country” which will mean the country in which
the decree was issued (in this case England), and “forum country”
which would mean the country in which the decree is sought to be G
executed (in this case India).
17. If we accept the view urged by Shri K.K. Venugopal, that the
date from which the limitation will be considered, will be the date of
1
AIR 1967 Mad 45
2
AIR (58) 1971 P&H 476 H
502 SUPREME COURT REPORTS [2020] 5 S.C.R.

A filing of certified copy of the decree it would lead to ludicrous results.
Taking the example of the present case, the limitation to execute a decree
in United Kingdom is 6 years. However, in India it is 12 years. The
decree becomes enforceable on the date it was passed and, therefore, if
the law of the cause country is to apply, the limitation would be 6 years
and if the law of forum country were to apply, it would be 12 years. If
B
the view urged is accepted then the decree holder can keep silent for
100 years and, thereafter, file a certified copy of the decree and the
certificate and then claim that the decree can be executed. That would
make a mockery of the legal process not only of the cause country but
also of the forum country. The clock of limitation cannot be kept in
C abeyance for 100 years at the choice of the decree holder. We, therefore,
reject this contention.
18. The main argument raised on behalf of the appellant is that
sub-section (1) of Section 44A is a deeming provision which provides
that the decree shall be executed as if it had been passed by an Indian
D court. It is urged that this deeming provision should be given its full
meaning and when the statute directs an imaginary state of affairs to be
taken as real, one should imagine also as real the consequences and
incidents which flow from the same. Reference has been made to the
judgment in East End Dwellings Co. Ltd. vs. Finsbury Borough
Council3 wherein it was held as follows:
E
“…If one is bidden to treat an imaginary state of affairs as real,
one must surely, unless prohibited from doing so, also imagine as
real the consequences and incidents which, if the putative state of
affairs had in fact existed, must inevitably have flowed from or
accompanied it. One of these in this case is emancipation from
F the 1939 level of rents. The statute says that one must imagine a
certain state of affairs. It does not say that, having done so, one
must cause or permit one’s imagination to boggle when it comes
to the inevitable corollaries of that state of affairs.”
The aforesaid observations by the House of Lords have been
G approved by this Court in Income Tax Commissioner vs. S. Teja Singh4.
The Madras High Court5 and the Punjab and Haryana High Court6 have

3
1951 (2) All E.R. 587
4
AIR 1959 SC 352
5
In Uthamram vs. K. M. Abdul Kasim Co., AIR 1964 Mad 221
H 6
In Lakhpat Rai Sharma vs. Atma Singh, AIR (58) 1971 P&H 476
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 503
[DEEPAK GUPTA, J.]

taken the view that the foreign decree has to be executed in India as if A
it had been passed by an Indian court and the legal fiction must be
extended to its logical end. Therefore, the foreign decree must be treated
as an Indian decree as on the date it was passed. However, the Punjab
and Haryana High Court held in Lakhpat Rai Sharma (supra) that if
no step for execution of the decree and no step-in-aid for such an
B
execution is taken in an Indian court on or before the limitation prescribed,
then the execution petition has to be dismissed on the ground that it is
time barred. It rejected the contention that the application for certificate
of non-satisfaction given to the foreign court should be treated to be a
step-in-aid and excluded while calculating the period of limitation.
19. Does Section 44A create a fresh period of limitation by C
extension of the deeming provision?. In our view, Section 44A 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 D
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 our considered view, Section E
44A has nothing to do with limitation.
20. 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. Though F
we do not approve of the view taken by the Madras High Court in Sheik
Ali (supra), that limitation will start running on filing of an application
under Section 44A, we only approve the following observations:
“(19) To sum up of our conclusions, we are of the view that S. 44-
A(1) is confined to the powers and manner of execution and has G
nothing to do with the law of limitation. The fiction created by the
sub-section goes no further and is not for all purposes, but is
designed to attract and apply to execution of foreign judgments
by the District Court its own powers of execution and the manner
of it in relation to its decrees, without reference to limitation…” H
504 SUPREME COURT REPORTS [2020] 5 S.C.R.

A 21. In our view 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. We answer question number 1 accordingly.
B Question No.2
22. Articles 136 and 137 of the Act read as follows:
Article 136, Limitation Act, 1963:

For the execution of any Twelve years When the decree or order
C decree (other than a decree becomes enforceable or
granting a mandatory where the decree or any
injunction) or order of any subsequent order directs any
civil court. payment of money or the
delivery of any property to
be made at a certain date or
at recurring periods, when
D default in making the
payment or delivery in
respect of which execution is
sought, takes place:

Provided that an application
E for the enforcement or
execution of a decree
granting a perpetual
injunction shall not be
subject to any period of
limitation.
F
Article 137, Limitation Act, 1963:
PART II-OTHER APPLICATIONS

Any other application for Three years When the right to
which no period of limitation apply accrues.
G is provided elsewhere in this
division.

23. If we hold that Article 136 is to apply then the period of limitation
in case of any foreign decree would be 12 years regardless of the
limitation which may be prevalent in the country where the decree was
H passed, i.e., the cause country. If the decree is to be executed in another
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 505
[DEEPAK GUPTA, J.]

jurisdiction, i.e., the forum country, which law should apply? Whether A
the law of limitation as applicable in the cause country or the forum
country would apply?
24. There is also the issue of conflict of laws between the cause
country and the forum country. As far as the present case is concerned,
it is not disputed that the limitation for executing a decree in England is 6 B
years in terms of Section 24 of the Limitation Act of 1980 of the United
Kingdom. Rule 40.7 of the Civil Procedure Rules of England provides
that a judgment or order takes effect from the date it is given or made or
such later date as the court may specify. The decree therefore becomes
enforceable on the date when it was passed and as far as this case is
concerned, the date of passing of the decree is 20.02.1995. If the C
limitation is 6 years then obviously the execution petition should have
been filed on or before 20.02.2001 and if the limitation was 12 years in
terms of Section 136 of the Act, the execution petition would still be
barred by limitation as the execution petition was filed in 2009.
25. There is increasing interaction and interplay between the people D
across the globe. There are more and more international business deals
being done. There is an increasing exchange of views in the fields of art,
literature, sports, etc. Goods are sold across the world, online. All these
could lead to litigation, which may have the cause in one country but the
judgment debtor may not have any property in that cause country and E
the decree-holder would have to go to another country (forum country)
to take benefit of the decree.
26. The earlier view was that the law of limitation being a
procedural law, the law of the forum country would govern the field.
This is reflected in Dicey’s observations in ‘Conflict of Laws’, 6th Edition7, F
where it has been said as follows:
“Whilst, however, it is certain that all matters which concern
procedure are in an English court governed by the law of England,
it is equally clear that everything which goes to the substance of a
party’s rights and does not concern procedure is governed by the G
law appropriate to the case.
Our Rule is clear and well established. The difficulty of its
application to a given case lies in discriminating between matters
7
J.H.C. Morris, et. al., (Eds.), “Dicey’s Conflict of Laws”, 6th Edn., Stevens & Sons
Ltd., Sweet & Maxwell, Ltd., pp.860-861 (1949). H
506 SUPREME COURT REPORTS [2020] 5 S.C.R.

A which belong to procedure and matters which affect the
substantive rights of the parties. In the determination of this question
two considerations must be borne in mind:-(1) English lawyers
give the widest possible extension to the meaning of the term
‘procedure’. The expression, as interpreted by our judges, includes
all legal remedies, and everything connected with the enforcement
B
of a right. It covers, therefore, the whole field of practice; it
includes the question of set-off and counter-claim, the whole law
of evidence, as well as every rule in respect of the limitation of an
action or of any other legal proceeding for the enforcement of a
right, and hence it further includes the methods, e.g., seizure of
C goods or arrest of person, by which a judgment may be enforced.”
xxx xxx xxx
Similar view was relied upon by the Division Bench of the Madras
High Court in the case of Uthamram vs. K. M. Abdul Kasim Co.8,
which held that the law of limitation of the forum country would apply.
D
27. Indian Courts have normally taken the view that the law of
limitation is a procedural law. We may point out that in Dicey’s ‘Conflict
of Laws’ 14th Edition9, the view taken is entirely different. The present
thinking appears to be that law of limitation is not procedural, especially
when it leads to extinguishment of rights or remedies. Hence, it cannot
E be termed as a procedural law.
28. At this stage we may refer to Dicey’s Conflict of Laws 14th
Edn. which has summarised this change in view in the following words:-
“The traditional approach has been thrown into some doubt by
F decisions in Australia and Canada. In John Pfeiffer Pty Ltd v.
Rogerson, the High Court of Australia indicated (obiter) that, at
common law, statutes of limitation are substantive, rather than
procedural. In Tolofson v. Jensen the Supreme Court of Canada
rejected the traditional common law classification of statutes of
limitation and the distinction between right and remedy on which
G it is based and held that statutes of limitation are to be classified
as substantive. This approach was confirmed in Castillo v.
Castillo. The Supreme Court applied a one year limitation period
8
AIR 1964 Mad 221
9
Sir Lawrence Collins et. al., “Dicey, Morris, & Collins on The Conflict of Laws”, 14th
H Edn., Sweet & Maxwell pp. 198-199 (2006).
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 507
[DEEPAK GUPTA, J.]

under the law applicable to the tort, Californian law, despite a A
provision of Alberta law which provided that Alberta limitation
law (which had a two year period) should apply “notwithstanding
that, in accordance with conflict of law rules, the claim will be
adjudicated under the substantive law of another jurisdiction.” A
majority of the Supreme Court of Canada held that this provision
B
had no application because the claim was already time-barred
when the action was brought.”
Even in relation to England it was observed:-
“Under the Foreign Limitation Periods Act 1984. The Act was
based on the recommendations of the Law Commission. It adopts C
the general principle, subject to an exception based on public policy,
that the limitation rules of the lex causae are to be applied in
actions in England, even if those rules do not lay down any limitation
period for the claim. English limitation rules are not to be applied
unless English law is the lex causae or one of two leges causae
governing the matter….” D

29. This change in view can also be noted in the works of other
authors. In Cheshire & North’s Private International Law (10th Edn.) it
can be seen that as per the older rules, the limitation of English law
would apply. Hence a claim would be allowed in England if it fell within
the limitation period prescribed in its laws, even if the action was time- E
barred as per the foreign law applicable to the transaction/contract/dispute
in question. However, this raised various issues which were also
highlighted. It would be apposite to refer to the following paragraphs:-
“(I) The time within which an action must be brought
F
English law is unfortunately committed to the view that statutes
of limitation, if they merely specify a certain time after which
rights cannot be enforced by action, affect procedure, not
substance. They concern, it is said, not the merits of the cause,
but the manner in which the remedy must be pursued. They
ordain that the procedure of the court is available only when set in G
motion within a certain fixed time after the cause of action arose.
In the result, therefore, any relevant statute of limitation that obtains
in the lex fori may be pleaded, while a statute of some foreign
law, even though it belongs to the proper law of the transaction,
must be disregarded.
H
xxx xxx xxx
508 SUPREME COURT REPORTS [2020] 5 S.C.R.

A The rules of English private international law upon this matter,
however, pay little attention to the proper law of the transaction
that is in issue. Thus in a report of a judgment by ROCHE, J., it is
said: “Foreign courts might have decided that the laws of limitation
were part of the substantive law, but he was unable to apply them
as such.” The result of this attitude is twofold.
B
Firstly, an English statute of limitation is a good idea plea to an
action brought in England, notwithstanding that the action is still
maintainable according to the proper law of the transaction.
xxx xxx xxx
C Secondly, the extinction of the right of action by the proper law of
the transaction is not a bar to an action in England. In other
words, if the permissible period is longer in England than in the
foreign country the plaintiff is at liberty to sustain his action here.
30. In Cheshire & North’s Private International Law (15th Edition)
D it is noted that this change of applying the law of limitation as applicable
in the cause country whose law applies to the transaction/contract/
dispute was a welcome one. The following paragraphs are relevant:-
“(a) The time within which a action must be brought
Until 1984, English law was committed to the view that statutes
E of limitation, if they merely specified a certain time after which
rights could not be enforced by actin, affected procedure and not
substance. This meant that limitation was governed by English
law, as the law of the forum, and any limitation provision of the
applicable law was ignored. Where, however, it could be shown
F that the effect of a statute of limitation of the foreign applicable
law was not just to bar the plaintiff’s remedy, but also to extinguish
his cause of action, then the English courts would be prepared to
regard the foreign rule as substantive and to be applied in England.
The common law rule, which has been criticised in a number of
common law jurisdictions, tends to have no counterpart in civil
G
law countries which usually treat statutes of limitations as
substantive. Furthermore, the Contracts (Applicable Law) Act
1990, implementing the European Community Convention on the
Law Applicable to Contractual Obligations (1980), provides that
the law which governs the essential validity of a contract is to
H govern “the various ways of extinguishing obligations, and
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 509
[DEEPAK GUPTA, J.]

prescription and limitation of actions”. In 1982 the Law A
Commission concluded that “there is a clear case for the reform
of the present English rule” and their recommendations formed
the basis of the Foreign Limitation Periods Act 1984.
The general principle of the 1984 Act abandons the common law
approach which favoured the application of the domestic law of B
limitation. Instead, the English court is to apply the law which
governs the substantive issue according to English choice of law
rules, and this new approach is applied to both actions and
arbitrations in England. In the case of those few tort claims, such
as defamation, to which the common law choice of law rules still
apply, English law, as the law of the forum, will remain relevant C
because of the choice of law rule which requires actionability
both by the law of the forum and by the law of the place of the
tort. The corollary of the main rule is that English law is no longer
automatically to be applied. There is, of course, a significant
difference between a rule under which a claim is to be held to be D
statute barred in England if statute barred under the governing
law, a reform which seems widely to be welcomed, and a further
rule that, if the claim is not statute barred abroad, it must be allowed
to proceed in England.”
31. The old position under common law was that limitation was E
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 or by judicial decisions have now
taken the view that the law of limitation cannot be treated as a purely
procedural law. We may make reference to the law in the United F
Kingdom and the United States of America.
32. Section 1 of the Foreign Limitation Periods Act, 1984 as
applicable to the United Kingdom reads as follows:
“Application of foreign limitation law. G
1. – (1) Subject to the following provisions of this Act, where in
any action or proceedings in a court in England and Wales the law
of any other country falls (in accordance with rules of private
international law applicable by any such court) to be taken into
account in the determination of any matter—
H
510 SUPREME COURT REPORTS [2020] 5 S.C.R.

A (a) the law of that other country relating to limitation shall apply
in respect of that matter for the purposes of the action or
proceedings, subject to sections 1A and 1B; and
(b) except where that matter falls within subsection (2) below,
the law of England and Wales relating to limitation shall not so
B apply.
(2) A matter falls within this subsection if it is a matter in the
determination of which both the law of England and Wales and
the law of some other country fall to be taken into account.
(3) The law of England and Wales shall determine for the purposes
C of any law applicable by virtue of subsection (1)(a) above whether,
and the time at which, proceedings have been commenced in
respect of any matter; and, accordingly, section 35 of the Limitation
Act 1980 (new claims in pending proceedings) shall apply in relation
to time limits applicable by virtue of subsection (1)(a) above as it
D applies in relation to time limits under that Act.
(4) A court in England and Wales, in exercising in pursuance of
subsection (1)(a) above any discretion conferred by the law of
any other country, shall so far as practicable exercise that discretion
in the manner in which it is exercised in comparable cases by the
E courts of that other country.
(5) In this section “law”, in relation to any country, shall not include
rules of private international law applicable by the courts of that
country or, in the case of England and Wales, this Act.”
Several States in the United States of America have adopted the
F Uniform Conflict of Laws Limitation Act, 1982 evolved by the
National Conference of Commissioners on Uniform State Laws.
Sections 2 and 3 of this Act read as follows:
“Section 2: (a) Except as provided by sec 4, if a claim is
substantively based:
G (1) upon the law of one other state, the limitation period of
that state applies; or
(2) upon the law of more than one state, the limitation period
of one of those states chosen by the law of conflicts of
laws of this State, applies.
H
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 511
[DEEPAK GUPTA, J.]

(b) The limitation period of this State applies to all other claims.” A
“Section 3: If the statute of limitations of another state applies
to the assertion of a claim in this State, the other States’ relevant
statutes and other rules of law governing tolling and accrual
apply in computing the limitation period, but its statutes and
other rules of law governing conflict of laws do not apply.” B
33. The view worldwide appears to be that the limitation law of
the cause country should be applied even in the forum country.
Furthermore, we are of the view that in those cases where the remedy
stands extinguished in the cause country it virtually extinguishes the
right of the decree-holder to execute the decree and creates a C
corresponding right in the judgment debtor to challenge the execution of
the decree. These are substantive rights and cannot be termed to be
procedural. As India becomes a global player in the international business
arena, it cannot be one of the few countries where the law of limitation
is considered entirely procedural.
D
34. We have already clearly indicated that if the law of a forum
country is silent with regard to the limitation prescribed for execution of
a foreign decree then the limitation of the cause country would apply.
35. We answer question no. 2 by holding that the limitation period
for executing a decree passed by a foreign court (from reciprocating E
country) in India will be the limitation prescribed in the reciprocating
foreign country. Obviously this will be subject to the decree being
executable in terms of Section 13 of the CPC.
Question No. 3
36. Coming to the third question, as far as Article 136 of the Act F
is concerned, we are of the view that the same only deals with decrees
passed by Indian courts. The Limitation Act has been framed mainly
keeping in view the suits, appeals and applications to be filed in Indian
courts and wherever the need was felt to deal with something outside
India, the Limitation Act specifically deals with that situation. We may
G
refer to Article 39 of the Act which specifically deals with dishonoured
foreign bills. Article 101 of the Act deals with suits filed upon a judgment
including a foreign judgment. The framers of the Act specifically
mentioned ‘including a foreign judgment’ in Article 101 of this very
Schedule which is part of the Act.
H
512 SUPREME COURT REPORTS [2020] 5 S.C.R.

A 37. When dealing with the applications for execution of decrees
the law makers could have easily said ‘including foreign decrees’. This
having not been said, it appears that the intention of the legislature was
that Article 136 would be confined to decrees of Indian courts.
Furthermore, Article 136 clearly states that the decree or order should
be of a civil court. A civil court, as defined in India, may not be the same
B
as in a foreign jurisdiction. We must also note the fact that the new
Limitation Act was enacted in 1963 and presumably the law makers
were aware of the provisions of Section 44A of the CPC. When they
kept silent on this aspect, the only inference that can be drawn is that
Article 136 only deals with decrees passed by Indian civil courts.
C 38. Having said so, we are clearly of the view that some
clarification needs to be given with regard to the period in which an
application under Section 44A can be filed. In this regard, when we
read sub-section (1) and sub-section (2) of Section 44A together it is
obvious that what is required to be filed is a certified copy of the decree
D in terms of sub-section (1) and also a certificate from the court in the
cause country stating the extent, if any, to which the decree has been
satisfied or adjusted. These are the twin requirements and no foreign
decree can be executed unless both the requirements are met. It is
essential to file not only a certified copy of the decree but also the
certificate in terms of sub-section (2). That, however, does not mean
E that nothing else has to be filed. The only inference is that the decree
can be executed only once these documents are filed. The executing
court cannot execute this decree and certificate unless the decree holder
also provides various details of the judgment debtor that is, his address,
etc. in India and the details of the property of the judgment debtor. These
F particulars will have to be provided by a written application filed in terms
of clause (2) of Rule 11 of Order 21 of the CPC which reads as follows:
(2) Written application. – Save as otherwise provided by sub-
rule (1), every application for the execution of a decree shall be in
writing, signed and verified by the applicant or by some other
G person proved to the satisfaction of the Court to be acquainted
with the facts of the case, and shall contain in a tabular form the
following particulars, namely :-
(a) the number of the suit;
(b) the names of the parties;
H
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 513
[DEEPAK GUPTA, J.]

(c) the date of the decree; A
(d) whether any, appeal has been preferred from the decree;
(e) whether any, and (if any) what, payment or other adjustment
of the matter in controversy has been made between the parties
subsequently to the decree;
B
(f) whether any, and (if any) what, previous applications have
been made for the execution of the decree, the dates of such
applications and their results;
(g) the amount with interest (if any) due upon the decree, or other
relief granted thereby, together with particulars of any cross- C
decree, whether passed before or after the date of the decree
sought to be executed;
(h) the amount of the costs (if any) awarded;
(i) the name of the person against whom execution of the decree
is sought; and D
(j) the mode in which the assistance of the Court is required
whether-
(i) by the delivery of any property specifically decreed;
(ii) by the attachment, or by the attachment and sale, or by the E
sale without attachment, of any property;
(iii) by the arrest and detention in prison of any person;
(iv) by the appointment of a receiver;
(v) otherwise, as the nature of the relief granted may require. F
39. Therefore, a party filing a petition for execution of a foreign
decree must also necessarily file a written application in terms of Order
21 Rule 11 clause (2) quoted hereinabove. Without such an application it
will be impossible for the Court to execute the decree. In our opinion,
therefore, this application for executing a foreign decree will be an
G
application not covered under any other article of the Limitation Act and
would thus be covered under Article 137 of the Limitation Act and the
applicable limitation would be 3 years.
40. The question that then arises is that from which date the
limitation starts. We can envisage of 2 situations only. The first situation
H
514 SUPREME COURT REPORTS [2020] 5 S.C.R.

A is one where the decree holder does not take any steps for execution of
the decree during the period of limitation prescribed in the cause country
for execution of decrees in that country. In such a case he has lost his
right to execute the decree in the country where the cause of action
arose. It would be a travesty of justice if the person having lost his rights
to execute the decree in the cause country is permitted to execute the
B
decree in a forum country. This would be against the principle which
we have accepted, that the law of limitation is not merely a procedural
law. This would mean that a person who has lost his/her right or remedy
to execute the foreign decree in the court where the decree was passed
could take benefit of the provisions of the Indian law for extending the
C period of limitation. In the facts of the present case, the limitation in
India is 12 years for executing a money decree whereas in England it is
6 years. There may be countries where the limitation for executing such
a decree may be more than 12 years. The right of the litigant in the latter
situation would not come to an end at 12 years and it would abide by the
law of limitation of the cause country which passed the decree. Hence,
D
limitation would start running from the date the decree was passed in
the cause country and the period of limitation prescribed in the forum
country would not apply. In case the decree holder does not take any
steps to execute the decree in the cause country within the period of
limitation prescribed in the country of the cause, it cannot come to the
E forum country and plead a new cause of action or plead that the limitation
of the forum country should apply.
41. The second situation is when a decree holder takes steps-in-
aid to execute the decree in the cause country. The proceedings in
execution may go on for some time, and the decree may be executed,
F satisfied partly but not fully. The judgment debtor may not have sufficient
property or funds in the cause country to satisfy the decree etc. In
such eventuality what would be done? In our considered view, in such
circumstances the right to apply under Section 44A will accrue only
after the execution proceedings in the cause country are finalised and
the application under Section 44A of the CPC can be filed within 3 years
G of the finalisation of the execution proceedings in the cause country as
prescribed by Article 137 of the Act. The decree holder must approach
the Indian court along with the certified copy of the decree and the
requisite certificate within this period of 3 years.
42. It is clarified that applying in the cause country for a certified
H copy of the decree or the certificate of part-satisfaction, if any, of the
BANK OF BARODA v. KOTAK MAHINDRA BANK LTD. 515
[DEEPAK GUPTA, J.]

decree, as required by Section 44A will not tantamount to step-in-aid to A
execute the decree in the cause country.
43. We answer the third question accordingly and hold that 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 B
country, 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.
44. In view of the discussion above we dismiss the appeal and
uphold the orders of both the Courts below, though for different reasons. C
No order as to costs. Pending applications(s), if any, shall stand(s) disposed
of.

Ankit Gyan Appeal dismissed.
D

E

F

G

H