Thursday, June 29, 2017

Is UAE a reciprocating country u/s 44A of Code of Civil Procedure?

A lot of online articles and blog posts mention ‘United Arab Emirates’ as one of the ‘reciprocating countries’ under section 44A of the Code of Civil Procedure,1908 (“CPC”). However, there is a cleavage of opinion among legal experts on this issue.
There is no dispute regarding the other ten countries, viz. United Kingdom, Aden, Fiji, Republic of Singapore, Federation of Malaya, Trinidad and Tobago, New Zealand, the Cook Islands (including Niue) and the Trust Territories of Western Samoa, Hong Kong, Papua and New Guinea and Bangladesh, being reciprocating countries.
The main cause for the confusion is an Agreement between the Republic of India and the United Arab Emirates (UAE) Done at New Delhi on the 25th October, 1999. Article XV (1) of the said treaty states that each of the countries must, in accordance with its laws, recognise and/or execute decrees passed by the Courts of the other country in civil, commercial and personal matters and by criminal courts in civil matters. The exceptions to Article VX are listed in Article XX, the contents of which are similar to Section 13 of the CPC. The text of the treaty can be found here.
The agreement also relates to mutual legal assistance in matters relating to execution of arbitration awards, service of summons, taking of evidence, etc.
In Dr. Devika Damji Shah v. Rashmi Mukesh Shah & Anr. [2012 Vol. 114 (5) Bom LR 2757] it was argued before the Hon'ble Bombay High Court by Mr. Rajesh Shah (appearing for Respondents) that since the agreement was gazette, it the Gazette Notification under which the agreement between the Republic of India and the United Arab Emirates was gazetted. That agreement deals with “Juridical and judicial cooperation in civil and commercial matters for the service of execution of judgments and arbitral awards.”   Mr. Shah argued that the executability of the grant of probate under the judgment of the Court of Dubai   is   also  circumscribed   by   the   same  provisions. The national law in India applicable in such a case would be Section 63 of the Indian Succession Act; the national law of Dubai is the Sharia law which does not recognize any such testamentary disposition.
Ms. Bookwala (appearing for the Appellants) argued   that   the   agreement   does   not   even constitute a notification showing Dubai as reciprocating territory since the notification is required to show that the country so notified is a reciprocating territory under Section 44­A and cannot be taken to be or deemed to be such a territory by virtue of a bilateral treaty or agreement.
On the facts of that case, the question was never finally decided. At present, courts do not enforce judgments of UAE as judgments of a reciprocating State. But is that a procedure or practice followed in error? I have presented to the readers contentions for both sides and leave them to decide which view they find more reasonable.


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