Legal opinion in respect of Execution of a Decree in India.

To,
   Subject : Legal opinion in respect of Execution of a Decree in India.
 Dear Sir,
 I am giving this Legal opinion in respect of Execution of a Decree in India as per our discussion :
 1.   The law relating to the execution of decrees is to be found in section 36 to 67, 73, 74 and 135 and Order XXI of the Code of Civil Procedure, 1908 (No. 5 of 1908). The Code imposes on the Judge considerable responsibilities in execution matters. The work of execution is carried out by the Court through its agents. It is essential, according to the scheme of the Code, that the Court should know fully and precisely how far its decrees are satisfied. The Court has the responsibility of preventing the sale of property in which the judgment debtor does not prima facie appear to have an interest; of seeing that property of a value far in excess of the amount of debt is not sold; of seeing that a reasonable price is realised and of securing that intending purchasers shall have the opportunity of knowing all that it is material for them to know concerning the property. As the sale is held by the Court, it must be conducted in a way just to all parties concerned.
 Applications for execution of decrees and orders thereon  2.   Except an application made immediately after a decree is passed, every application for execution shall be made in writing in Form No. 6, Appendix E, and signed and verified.
 3.   As soon as an application for execution is presented, the date of presentation shall be endorsed thereon by the Clerk of the Court or such other Officer as may be appointed by the Court.
 4.   The next step is the examination of the application. This examination should be particularly directed to ascertaining :
  (i)                  Whether it is in conformity with Form No. 6 in Appendix E, Schedule I of the Code.
 (ii)                 Whether it is properly signed and verified.
 (iii)                Whether it contains the particulars about the number of the suit, names of the parties and date of the decree.
 (iv)               Whether it contains information as to whether an appeal has been preferred from the decree.
 (v)                Whether it states if any payment or adjustment of the matter in controversy has been made between the parties subsequent to the decree.
 (vi)               Whether it contains information about previous applications for execution of the decree, if any.
 (vii)              Whether it contains particulars about the dates of previous application, if any, and their results.
 (viii)            Whether it mentions the amount of costs, if any, awarded.
 (ix)               Whether it gives the name of the person against whom execution of the decree is sought.
 (x)                 Whether it mentions the mode in which the assistance of the Court is required.
 (xi)               Whether the decree-holder has stated in grounds or given an affidavit stating the grounds for arrest in the application in case when he wants to arrest and to detain the judgment debtor in Civil Prison.
 (xii)              Whether it is filled in time.
 (xiii)             Whether it is accompanied by a copy of the decree.
 5.   Note : Until such time the decree is not drawn up, a certified copy of the lase paragraph of the judgment, indicating the names and addresses of all the parties to the suit, shall be considered sufficient for the purpose of initiating the execution of the decree.
 6.   A certified copy of the decree must, however, be produced for substituting the copy of the last paragraph of judgment, as soon as the decree is drawn up, (Rule 6A (2)(b) Order XX, C.P.C.)
(xiv) Whether in the case of an application for attachment of movable property, the application is accompanied by an annexure showing the inventory of the property to be attached and its description. (xv) Whether, in the case of an application for attachment of immovable property, it contains sufficient details of the description of the property to enable its identification, and specifies the share or interest of the judgment-debtor, as required by rule 13 of Order XXI. (xvi) Whether, in the case of an application for attachment of land assessed to the payment of revenue to the Government, it is accompanied by a certified copy of the current entry in the Record of Rights or Register of Mutations or Register to Tenancies in regard to such lands. (xvii) Whether, where the application is by an heir of the deceased decree-holder a Succession Certificate is required. 7.   The Officer examining the application for execution shall also verity the correctness of the particulars furnished by the applicant so far as they can be ascertained from the records of the Court viz., Register of Suits, Register or applications for execution and previous Darkhast proceedings. He should also ascertain whether any stay order is received from the Appellate Court.
 8.   If the Officer examining the application (darkhast) finds that it complies with all the requirements and is correct in all respects, he should make an endorsement on the Darkhast “Examined and ordered to be registered” with the date and his signature. If he thinks that the Darkhast should be amended or corrected, he should refer the matter to the Judge for orders.
 9.   Where, upon examination, the application is found to be correct and in order, it should be entered in the Register of applications for execution. Two separate Registers should be maintained, one for applications for execution of decrees in Regular Suits, and the other for Applications for execution of decrees in Small Cause Suits.
 10.                Every application for execution of a decree should be placed before the Judge for orders as soon as possible, and in no case later than five days from its presentation, without the special orders of the Judge.
 11.                As regards the Linked Courts, a clerk should be sent to the Station where the Judge sits on deputation for obtaining orders on the application for execution of decree within the stipulated time mentioned above. For this purpose, the Clerk of the Court or the Nazir should not be sent but only the concerned clerk should be sent.
 12.                Interlineations, erasures or corrections in the application should be initialed by the party or his lawyer, and by the Officer Reciving it.
 13.                Applications for execution of decrees are proceedings in suit and do not require fresh Vakalatnamas unless the engagement has been terminated by the lawyer or the party engaging him. A memo of appearance should, however, be filed by the lawyer stating that he had filed the vakalatnama in the suit and his engagement still continues.
 14.                On every application for execution, which is found to be in order, the Court shall pass an order directing the execution of the decree or the issue of a notice under rule 22 or under rule 37 of Order XXI, as the case may require.
 15.                The returnable date given in the notice which may be issued under the above paragraph should be treated as the date of hearing of the application and the application would be entered on the notice board accordingly.
 16.                When a decree is ordered to be executed and process issued, the Court should see that it is executed and, if it is not executed, ascertain the reasons for its non-execution. Certain modes of execution are described in rules 30 to 36 or Order XXI.
 17.                A final order should be made upon every application for execution, such order may also provide for costs. The final order may be, for example, the dismissal of the application, as provided by Order XXI, rule 57, or an order that no further proceedings are required or can be taken. An order that the application is struck off or that it is consigned to the record is not a satisfactory order.
 18.                No final order should be made in any case unless the decree-holder or his lawyer is present, or has had an opportunity of appearing and applying for an adjournment or for taking further proceedings.
 19.                When a darkhast  is disposed of, an endorsement should be made on the copy of the decree as to in what manner and to what extent the decree is satisfied. The endorsement should be signed by the Judge and not by any ministerial officer of the Court.
 General Instructions for the conduct of business in execution proceedings 20.                To prevent delay in executing processes, and to avoid post-ponement of an attachment or sale consequent on the temporary absence of a Civil Judge or the closing of his Court at other times than during vacations and sanctioned holidays, the District Judge should direct the Civil Judge who may be appointed under section 37 of the Bombay Civil Courts Act, XIV of 1869, to perform the duties of the Judge of the vacations Court, to carry on all processes for execution of decree or other proceedings in execution.
 21.                If the record of the proceedings in the suit is not before the Court, it may refuse to entertain an application for execution, unless the application is accompanied by a certified copy of the decree. (See Order XX, Rule 11(3)). But if the application is made to a Court, to which a copy of the decree has been sent under rule 6 of Order XXI of the Civil Procedure Code, a fresh copy of the decree need not be produced wit
 The execution of the Foreign Decrees/ Judgments in India22.                The word Foreign Decrees/ Judgments simply connotes a final adjudication on an issue of Law whereby the rights of parties are conclusively determined by a Court situated outside India and not established or continued by the authority of the Central Government.
 23.                The execution of the decrees and judgments in India are governed by the procedure as laid down in “The Code of Civil Procedure, 1908”. The execution of decrees though is a procedural law but the relevant section of the Code of Civil Procedure makes it a substantive law. Let us understand the difference between the two. The Substantive Law is one which determines the rights and liabilities of parties or confers legal status or imposes and denies the nature and extent of legal duties. The Procedural Law on the other hand prescribes the practice, procedure and machinery for the enforcement or recognisition of legal rights and liabilities by a court of law or other recognized or a properly constituted tribunal. The few instances of Substantive Law are the Indian Contract Act, 1872, theTransfer of Property Act, 1882 and the Industrial Disputes Act, 1972. Whereas Indian Evidence Act, 1872, the Limitation Act, 1963 and Code of Civil Procedure, 1908 are a few examples of Procedural Law. Thus a procedural law is always subservient to substantive law. Nothing can be given by the procedural law that is not sought to be given b a substantive law, and nothing can be taken away by a procedural law that is given by a substantive law[1].
 24.                As the Code of Civil Procedure has been enacted to consolidate and amend the laws relating to the procedure to the Courts of Civil Judicature, and the execution of a foreign decree being a matter related to Civil Judicature, the same are to be executed keeping in view the conditions as enumerated in Section 13, Section 38, Section 39, Section 40, Section 44-A and Section 45 of the Code of Civil Procedure, 1908.
  25.                As held by the Supreme Court of India in Moloji vs Shanker, the rules laid down in these sections are rules of substantive law and not mere of procedure[2], hence the executing court has to ensure the compliance of the conditions as specified in the above stated sections.
 26.                However, the execution of a foreign decree may be stated to be conclusive as to any matter directly adjudicated upon by the foreign court between the same parties or between parties under whom they or any of them claim litigating under the same title, except in circumstances as itemized in Civil Procedure Code.
  Provisions in Code of Civil Procedure, 1908 27.                Before proceeding to the case analysis and legal position in regard to execution of foreign decrees in India, the relevant sections of Code of Civil Procedure, 1908 are reproduced herein below:
“13. When foreign judgment not conclusive.28.                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 recognise 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.
38. Court by which decree may be executed.29.                A decree may be executed either by the court which passed it, or by the Court to which it is sent for execution.
39. Transfer of decree.(1)                The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court ¹[of competent jurisdiction],—
 30.                if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or
 31.                if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
 32.                if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or
 33.                if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
(1)                The Court which passed the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.
(2)                For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.
(3)                Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.
44A. Execution of decrees passed by Courts in reciprocating territory.(4)                Where a certified copy of decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.
(5)                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 proof of the extent of such satisfaction or adjustment.
(6)                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.
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 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 to a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment”.
Scope and Application of above stated Relevant Provisions34.                Section 13 of Code of Civil Procedure, 1908 can be termed as Security Check of all the decrees passed by the foreign courts. Every foreign decree before its execution has to surpass the conditions of its conclusiveness as specified above.
 35.                A judgement of a foreign court to be conclusive between the parties must be a judgement pronounced by the competent court, and the competence contemplated by Section 13 is in an international sense, and not merely by the law of the foreign state in which the Court delivering judgment functions[3]. The Privy Council has clarified the said situation in Carl Franz Adolf Otto Integnohol vs Wing On & Co by holding that, where the subject-matter is a res so situated as to be within lawful control of the State under the authority of which a Court sits, and the authority has conferred on the Court jurisdiction that decision is conducive whether according to the law of another decide as to the disposition of the thing, and the court has acted within that jurisdiction, that decision is conclusive, whether, according to the law of another country, it might seem right or wrong[4].
 36.                In actions in personam a foreign Court can be considered as a court of competent jurisdiction only under certain specified circumstances. The three cases in which it will be so considered are summarized by Dicey[5] as follows:
  First Case: Where at the time of commencement of the action the defendant was resident or present in such country; so as to have the benefit, and be under the protection, of the laws thereof.
 Second Case: Where the defendant is, at the time of judgment is action, a subject or citizen of such country.
 Third Case: Where the party objecting to the jurisdiction of the courts of such country has, by its own conduct, submitted to such jurisdiction, i.e. has precluded himself from objecting thereto:
a)                                   by appearing as plaintiff in action or counter-claiming; or
b)                                   by voluntarily appearing as defendant in such action; or
c)                                   by having expressly or impliedly contracted to submit to the jurisdiction of such court[6].
Judgment not on Merits37.                The Foreign Judgment shall not be executed by the courts of India, if the same is not passed on the merits of the case. In B.Nemichand Sowcar vs V.V.Rao[7] the defendant submitted to the jurisdiction of the Kolar Court by filing its written statement. There was no appearance by the counsel on behalf of the Plaintiff. The court without hearing any evidence passed a decree in favour of the Plaintiff. It was held that if decree passed in this way without any evidence being given cannot be valid.
 38.                It cannot be said that a decision on the merits is possible only in cases where the defendant enters appearance and contest the Plaintiff’s claim. Even where the defendant chooses to remain Ex-parte and to keep out, it is possible for the Plaintiff to adduce evidence in support of his claim (and such evidence is generally insisted on by the courts in India), so that the court may give a decision on the merits of the case after due consideration of such evidence and instead of dispensing with the consideration and giving decree merely on account of default appearance of defendant. In the former case the judgment will be one on the merits of the case, while in the latter the judgment will be one not on the merits of the case[8].
  39.                The Supreme Court of India in International Woolen Mills v. Standard Wool (U.K.) Limited[9] has held that undoubtedly the burden of proving that the decree is not on merits would be on the party alleging it. However Courts never expect impossible proofs. It would never be possible for a party to lead evidence about the state of mind of the judge who passed the decree. Of course, amongst other things, the party must show that the decree does not show that it is on merits, if necessary the rules of that Court, the existence or lack of existence of material before the Court when the decree was passed and the manner in which the decree is passed.
Inaccurate view of the law of India, or of International Law40.                A foreign decree may be impeached on the ground that it is upon its face, founded upon an inaccurate view of the law of India, or of International Law. The said condition is under Section 13 Sub Sec (c) of Code of Civil Procedure, 1908. The precedents have shown that the said clause comes in operation mainly in matrimonial disputes. The main reason for this is that the conditions for divorce in Western countries are not as stringent as provided under Hindu Marriage Act, 1955. The marriage under Hindu Marriage Act, 1955 is not considered as a Contract but a sacred and sacrosanct act.
 41.                A decree of divorce passed by American Court on a ground not available under the Hindu Marriage Act, parties being Hindus, marriage was solemnized according to Hindu rites, the wife did not submit to the jurisdiction of Foreign Court, is neither recognizable nor enforceable in India[10].
 42.                The Supreme Court of India in Y. Narasimha Rao vs Y. Venkata Lakshmi[11] The second part of clause (c) of Section 13 states that where  the  judgment is founded on a  refusal  to  recognize the  law  of  this country in cases in which such law  is applicable,  the  judgment  will not be  recognised  by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on the ground not recognized by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country.
 43.                In Smt. Satya vs Teja Singh [12] the Supreme Court of India had held that:
 “ The answer to the question as regards the recognition to be accorded to the Nevada decree must depend principally on the rules  of  our           Private International Law.  It is a well- recognized principle that “Private international law is not the same in all countries[13]“. There is no system of private international law which can claim universal recognition and that explains why Cheshire, for example, says that his book is concerned solely with that system ‘which obtains in England,  that is  to say, with the  rules  that  guide  an English court whenever it is seized of a case that contains some foreign element. The same emphasis can be seen in the works of other celebrated writers like Graveson, Dicey & Morris, and Martin Wolff.  Speaking of the “English conflict  of laws” Graveson says : “Almost every country  in the  modern world has not only its own system  of  municipal law  differing materially from those of its neighbours, but also  its  own            system of conflict of, laws,.    .  .  .”
 According to Dicey & Morris.  “The conflict of. laws  exists because there are different systems of domestic  law. But systems of the conflict of laws also differ[14]“. Martin Wolf advocates the same point of view thus :
 “Today undoubtedly Private International Law is National law.  There exists  an English private international law as distinct from a French, a  German, an Italian private international law.  The rules on  the conflict of laws in the  various  countries  differ nearly as  much  from each other as do those on  internal (municipal) law[15]“. It is thus a truism to say that whether it is a problem of municipal law or of Conflict of  decided in accordance with Indian law. it is another matter that the Indian       conflict  of  laws may require that  the  law  of  a foreign country ought to be applied in a given situation for deciding  a case which contains a foreign element. Such a recognition is accorded not as an act of courtesy but on considerations     of justice.  (4) It is implicit in that process, that the foreign law must not offend against our public policy.
 44.                We cannot therefore adopt mechanically the rules of Private International   Law evolved by  other countries.  These principles vary greatly and are moulded by the distinctive social, political and economic conditions obtaining in these countries.   Questions relating to the personal status of a party depend in England and North America upon the law of this domicil, but in France, Italy, Spain and most of the other European countries upon the law of his nationality. Principles governing matters within the divorce jurisdiction are so conflicting in the different countries that not unoften a man and a woman are husband and wife in one jurisdiction but treated as divorced in another jurisdiction.
 45.                A foreign decree of divorce is subject to collateral attack for fraud or for want of jurisdiction either of the, subject matter or of the parties provided that the attacking party is not estopped from doing so[16]. A foreign decree of divorce, obtained by fraud is void.  Fraudulent simulation of domicile is impermissible. A spouse who goes to a State or country other than that of the matrimonial domicile for the sole purpose of obtaining a divorce perpetrates a found, and the judgment is not binding on the courts of other States[17]”.
 Violation of Natural Justice 46.                The foreign judgment may also be challenged if the proceedings in which it was obtained are opposed to natural justice. The expression “natural justice” relates to alleged irregularities in procedure adopted by an adjudicating court and has nothing to do with the merits of the case. It is the essence of a judgment of a court that it be composed of impartial persons, who act fairly, without bias or prejudice and in good faith.
 47.                The Supreme Court of India in Y. Narasimha Rao vs Y. Venkata Lakshmi[18] has held that:
 “Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than  an elementary principle on which any civilised  system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If  the  rule  of audi alteram  partem  has  any meaning  with  reference  to the proceedings in a foreign court, for the purposes of the rule it  should not be deemed sufficient that the respondent has been  duly  served  with the process of the  court. It is necessary to ascertain whether the respondent was in a position to present or represent  himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are file by either party. If the foreign court has not  ascertained  and  ensured such  effective contest by requiring  the petitioner to make all  necessary  provisions for the respondent to defend including the costs of  travel, residence and litigation where necessary, it should be held that  the  proceedings are in breach of the  principles  of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such  forum is recognised. This jurisdiction principle is also recognized by the Judgments Convention of this European Community. If, therefore,  the courts in this country also  insist  as a matter of rule that foreign matrimonial judgment will be recognised only it is of the forum where the  respondent is  domiciled  or habitually and  permanently  resides, the provisions of clause (d) may be held to have been satisfied”.
Fraud48.                No judgment of a court may be allowed to stand, if it has been obtained by fraud. A judgment obtained by fraud is “non-est” in the eyes of law and is thus a nullity. It therefore can be challenged in any court in appeal, in revision or even in collateral proceedings. A fraud may be by the party obtaining a judgment in his favour or upon the court pronouncing the judgment. Thus the foreign judgment obtained by fraud will not operate as res-judicata.
 49.                It has been held in S.P Chengalvaraya Naidu vs. Jagannath (dead)[19]:
 “Fraud avoids all   judicial   acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
 50.                A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party”.
Judgment contrary to Indian Legislation 51.                A judgment delivered by a foreign court contrary to Indian legislation would not be conclusive i.e. to say that if a foreign judgment is in breach of Indian Law, it cannot be enforced in India. Any judgment which comes before an Indian court must be in conformity with the law in force in India and must not offend Indian Laws or the public policy.
Execution of decrees passed by Courts in reciprocating territory52.                A decree or judgment passed by a Foreign Court cannot be executed in India in absence of a reciprocal arrangement.
 53.                Some countries that have been declared and notified by India as reciprocating territories and superior courts include the Federation of Malaya (now Malaysia) and the High Court and the Courts of Appeal; Colony of Aden and Supreme Court of Aden; New Zealand and Cook Islands, Trust Territory of Western Samoa and the Supreme Court of New Zealand; Burma, all civil and revenue courts; United Kingdom of Great Britain and Northern Ireland and the House of Lords, Court of Appeals, High Court of England, the Court of Sessions in Scotland, the High court in Northern Ireland, the Court of Chancery of the County Panlatine or Lancaster or Durham; Colony of Fiji and the Supreme Court of Fiji; Republic of Singapore; Trinidad and Tobago; Papua New Guinea and Supreme Court; Bangladesh and Supreme Court and courts of district and subordinate judges; Canada and the Supreme Court of Ontario. Therefore, apart from the countries and courts listed above, decrees passed by any other court would not be enforceable in India. For other countries, a foreign decree may be executed in India by filing a suit on the basis of the said decree praying inter-alia, for the execution of the decree passed by the foreign court.
 Conclusion54.                The foreign judgment/ decree which can be executed could only be for payment of a sum of money and cannot be for an immovable property. The claim of money which is passed in a foreign currency could provisionally be claimed in Indian rupees converted at the rate prevailing on the institution of the proceedings.
 55.                From the above discussion it is manifestly clear that a foreign judgment and decree in India can only be executed if the same is passed by the courts of reciprocating territory and should pass the seven tests as laid down in Section 13 of the Code of Civil Procedure, 1908.
From the facts and circumstance narrated hereinabove it can be said that the Execution of a Decree in India is a very difficult task.
 Cost of the legal opinion
Thanking you
Yours faithfully
 [----------------------------]
ADVOCATE

---

[1] Halsbury’s Laws of India, Vol 7, p 65.0001[2] AIR 1962 SC 1737
[3] I.L.R. 63 Calcutta 1033
[4] AIR 1928 P.C. 83
[5] Conflict of Laws, 6^th Edition., p 351
[6] Sir John Woodroffe & Ameer Ali’s Commentary of Code of Civil Procedure, 1908; 4th Edition, Vol I; p 365
[7] AIR 1946 Mad 448
[8] AIR 1958 Ker 205
[9] 2001 AIR(SC) 2134: 2001(3) SCR 166: 2001(5) SCC 265
[10] AIR 2003 Delhi 175
[11] (1991) 3 SCC 451
[12] (1975) 1 SCC 120
[13] The Conflict of Laws, R.B.Graveson, 6^th Ed., (1969) pp 3,5,6
[14] The Conflict of Laws, Dicey & Morris, 8^th Ed., (1967) p.10
[15] Private International Law, Martin Wolf, 2^nd Ed., (1950) p.11
[16] Cohen vs Randall, 88Led., 480
[17] Corpus Juris Secundum, Vol. 27-B, para 361 p.847
[18] (1991) 3 SCC 451
[19] (1994) 1 SCC 1
 

BEFORE CONSUMER DISPUTE REDRESSAL FORUM, MUMBAI SUB-URBAN DISTRICT

3^RD FLOOR ADMINISTRATIVE BUILDING, NEAR CHETNA COLLEGE, BANDRA (EAST), MUMBAI -400 051

COMPLAINT CASE NO. 03 OF 2012

IN THE MATTER OF :

PUSHPA MUTREJA

THROUGH

JAGDISH MUTREJA, C. A.   …….          COMPLAINANT

VERSUS

SHREE KRISHNA HOSPITAL

& ORS                                            ………..OPPOSITE PARTIES

MAY IT PLEASE YOUR HONOUR

WRITTEN ARGUMENTS ON BEHALF OF OPPOSITE PARTIES

The opposite parties named above most humbly and respectfully beg to file their written arguments as under :

SOME BASIC FACTS ABOUT THE DISEASE

1.     Cellulitis  is a localized or diffuse inflammation of connective tissue with severe inflammation of dermal and subcutaneous layers of the skin. Cellulitis can be caused by normal skin flora or by exogenous bacteria, and often occurs where the skin has previously been broken: cracks in the skin, cuts, blisters, burns, insect bites, surgical wounds, intravenous drug injection or sites of intravenous catheter insertion. Skin on the face or lower legs is most commonly affected by this infection, though cellulitis can occur on any part of the body. The mainstay of therapy remains treatment with appropriate antibiotics, and recovery periods last from 48 hours to six months.

2.    Erysipelas is the term used for a more superficial infection of the dermis and upper subcutaneous layer that presents clinically with a well-defined edge. Erysipelas and cellulitis often coexist, so it is often difficult to make a distinction between the two. In Ludwig's angina, an acute and potentially life threatening condition, cellulitis occurs within the submandibular (lower jaw) space. Cellulitis is unrelated (except etymologically) to cellulite, a cosmetic condition featuring dimpling of the skin.

Causes

3.    Cellulitis is caused by a type of bacteria entering the skin, usually by way of a cut, abrasion, or break in the skin. This break does not need to be visible. Group A Streptococcus and Staphylococcus are the most common of these bacteria, which are part of the normal flora of the skin, but normally cause no actual infection while on the skin's outer surface. Dental infections account for approximately 80% of cases of Ludwig's angina, or cellulitis of the submandibular space. Mixed infections, due to both aerobes and anaerobes, are commonly associated with the cellulitis of Ludwig's angina. Typically this includes alpha-hemolytic streptococci, staphylococci and bacteroides groups.

4.    Predisposing conditions for cellulitis include insect or spider bite, blistering, animal bite, tattoos, pruritic (itchy) skin rash, recent surgery, athlete's foot, dry skin, eczema, injecting drugs (especially subcutaneous or intramuscular injection or where an attempted intravenous injection "misses" or blows the vein), pregnancy, diabetes and obesity, which can affect circulation, as well as burns and boils, though there is debate as to whether minor foot lesions contribute. Occurrences of cellulitis may also be associated with the rare condition hidradenitis suppurativa.The appearance of the skin will assist a doctor in determining a diagnosis. A doctor may also suggest blood tests, a wound culture or other tests to help rule out a blood clot deep in the veins of the legs. Cellulitis in the lower leg is characterized by signs and symptoms similar to those of a deep vein thrombosis, such as warmth, pain and swelling (inflammation).

5.    This reddened skin or rash may signal a deeper, more serious infection of the inner layers of skin. Once below the skin, the bacteria can spread rapidly, entering the lymph nodes and the bloodstream and spreading throughout the body. This can result in influenza-like symptoms with a high temperature and sweating or feeling very cold with shaking, as the sufferer cannot get warm. In rare cases, the infection can spread to the deep layer of tissue called the fascial lining. Necrotizing fasciitis, also called by the media "flesh-eating bacteria", is an example of a deep-layer infection. It is a medical emergency.

Risk factors

6.    The elderly and those with immunodeficiency (a weakened immune system) are especially vulnerable to contracting cellulitis. Diabetics are more susceptible to cellulitis than the general population because of impairment of the immune system; they are especially prone to cellulitis in the feet, because the disease causes impairment of blood circulation in the legs, leading to diabetic foot/foot ulcers. Poor control of blood glucose levels allows bacteria to grow more rapidly in the affected tissue, and facilitates rapid progression if the infection enters the bloodstream. Neural degeneration in diabetes means these ulcers may not be painful and thus often become infected. Those who have suffered poliomyelitis are also prone because of circulatory problems, especially in the legs.

7.     Immunosuppressive drugs, and other illnesses or infections that weaken the immune system, are also factors that make infection more likely. Chickenpox and shingles often result in blisters that break open, providing a gap in the skin through which bacteria can enter. Lymphedema, which causes swelling on the arms and/or legs, can also put an individual at risk. Diseases that affect blood circulation in the legs and feet, such as chronic venous insufficiency and varicose veins, are also risk factors for cellulitis. Cellulitis is also extremely prevalent among dense populations sharing hygiene facilities and common living quarters, such as military installations, college dormitories, nursing homes, oil platforms and homeless shelters. It is advised if a cabin is shared with a sufferer, urgent medical treatment should be given.

Diagnosis

8.    Cellulitis is most often a clinical diagnosis, and local cultures do not always identify the causative organism. Blood cultures usually are positive only if the patient develops generalized sepsis. Conditions that may resemble cellulitis include deep vein thrombosis, which can be diagnosed with a compression leg ultrasound, and stasis dermatitis, which is inflammation of the skin from poor blood flow. Associated musculoskeletal findings are sometimes reported. When it occurs with acne conglobata, hidradenitis suppurativa, and pilonidal cysts, the syndrome is referred to as thefollicular occlusion triad or tetrad. Lyme disease can be misdiagnosed as staphylococcal- or streptococcal-induced cellulitis. Because the characteristic bullseye rash does not always appear in patients infected with Lyme disease, the similar set of symptoms may be misdiagnosed as cellulitis. Standard treatments for cellulitis are not sufficient for curing Lyme disease. The only way to rule out Lyme disease is with a blood test, which is recommended during warm months in areas where the disease is endemic.

COMPLAINANT’S VERSION IN CHRONOLOGICAL ORDER

CHRONOLOGY OF EVENTS

S.No	Date	Events
1.	23.10.2011	Complainant was under the care and supervision of opposite parties No. 2 & 3 for the treatment of injury of her lower left foot cellulites (infection with swellings).
2.	25.10.2011	The complainant was asked to get admitted in opposite party No. 1 hospital. She was admiited and numbers of clinical tests were carried out in the hospital.
3.	26.10.2011	The complainant started vomiting and complained of severe acidity. The complainant was having pain in her left leg and was feeling weakness also
4.	27.10.2011	The vomiting of the complainant continued and she complained of weakness, pain, headache, and acidity. No food, water, juice can be given to her as she was vomiting continuously soon after intake.
5.	28.10.2011	The health of the complainant deteoriated further. The complainant started having loose motions (12 to 13 hrs within few hours). In the late evening complainant’s son requested his family doctor to visit opposite party No.1 hospital. Thereafter they took discharge from the opposite party No.1 hospital.
6.	28.10.2011 TO 07.11.2011	The complainant was kept in ICU in Apex Hospital for 11 days and was treated of injury of her lower left foot cellulites (infection with swellings) along with vomiting, loose motion, headache, restlessness, Kidney problem and pain.
7.	30.10.2011	A complaint was made to the Senior Inspector of Police, Borivali (east) by the complaint through her POA for lack of professional services while attending patients.
8.	07.11.2011 TO 10.11.2011	The complainant was kept in OPD & thereafter she was discharged.
9.	21.11.2011	All the opposite parties were given notice by registered post by the complainant through her counsel Mrs. C. R. Sukheja, Advocate
10.	23.11.2011	The legal notice was duly received by the opposite parties.
11.	15.12.2011	Reply was sent by the opposite patries through their Counsel Mr. Rajendra Choudhary, Advocate
12.	27.12.2011	Reply was received by Mrs. C. R. Sukhija, Advocate
13.	02.01.2012	Further reply was given to Mr. Rajendra Choudhary, Advocate by the complainant’s Counsel Mrs. C. R. Sukhija, Advocate.
14.	03.01.2012	A complaint under the provisions Section 12 of the Consumer Protection Act, 1986 was filed against the opposite parties by the complainant bearing complaint case No. 3 of 2012 before this Hon’ble Forum for financial loss of Rs.2,50,000/- together with compensation of Rs.10,00,000/- with interest @ 12 % per annum from the date of application till the payment of compensation by the complainants.

REPLY ON BEHALF OF OPPOSITE PARTIES :

9.    By filing written statement dated 31.03.2012 the opposite parties has submitted that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unstable in Law and has been filed without justified reason / cause against  the opposite parties just to harass, defame and extort illegal sum from them. No specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by the complaiant against the opposite parties. The Complainant has totally failed to explain “as to how thitife opposite parties were negligent”. Hence the complaint is based on non-specific, unscientific and layman conjectures. The apex Court in the case of V. Kishan Rao vs Nikhil Super Speciality Hospital ... decided on 8 March, 2010 reported in : 2010 (5) SCR 1 = (2010) 5 SCC 513 has held that it was not bound by the earlier decision of the same court in Martin D’Souza’s case as that judgment was per incuriam regarding the directions for expert opinion is concerned. The court held that it was not necessary in all cases to seek expert opinion before proceeding with the matter. For simple and obvious cases, the consumer courts were free to proceed without seeking expert opinion and the instant case fell in such a category. Complainant has filed the instant complaint with false allegation of negligence by claiming exhorbitant amounts without any basis, just to waste valuable time, harass and defame the opposite parties. No cause of action arose against the opposite parties in this case, no negligence or deficiency in surgical services has been made/ provided by the opposite parties to the patient while providing the said treatment/ services in question. The Complaint is bad for mis-joinder of necessary parties as the opposite party No. 1 Hospital is insured with “United India Insurance Company Limited, 54, Janpath, Connuaght Place, New Delhi – 110 001 through its Professional Indemnity Policy No. 210/46/10/32/00002599 effective from 04.02.2011 to 03.02.2012. The opposite party No. 2  is insured with “United India Insurance Company Limited, 54, Janpath, Connuaght Place, New Delhi – 110 001 through its Professional Indemnity Policy No.120704/46/10/35/00001604 effective from 10.02.2011 to 09.02.2012. The opposite party No. 3 is insured with “United India Insurance Company Limited, 54, Janpath, Connuaght Place, New Delhi – 110 001 through its Professional Indemnity Policy No.120704/46/11/35/00000525 effective from 17.11.2011 to 16.11.2012.

10.                       Opposite party No. 1 had seen the complainant for the first time on 25.10.2011 and the patient immediately referred to opposite party No. 3 for acidity type symptoms. Opposite party No. 3 seen the complainant for the first time on 26.10.2011 at 12 :30 PM. This diabetic complainant with diabetic cellulites had no major complaint except acidity symptoms and pain over left lower leg having cellulites, high WBC count, normal sugar & normal creatinine. Complainant was on supacef 1-5 IV twice a day with oral hypoglycemic medicine for diabetes. Opposite party No. 2 was on 27.10.2011 told the complainant had 2-3 times of loose motion and vomiting once or twice. On examination of abdomen generalized tenderness was present. Opposite party No. 3 continued Supacef & added IV Metrogyl 100 ml three times, complainant passed adequate amount of urine. Concerned doctors were available round the clock including RMOS was time 24 hours. Opposite parties No. 2 & 3 were not on leave. ICU facility with ventilator is available in opposite party No. 1 Hospital. Dressing was done by RMOS. Opposite party No. 3 was told on 28.10.2011 that the complainant had 5-6 time loose motions and vomiting immediately after food. Hence the complainant was kept nill by mouth. Ryles tube aspiration was advised as she had pain and distention of abdomen. Opposite party No. 3 thought intra abdominal inflammatory or infective process. After conforming S. creatinine level which was 1.2. opposite party No. 3 changed to antibiotics IV Cefaperazone with Tazobectam and one single injection of Amikacin was given. Opposite party No. 3 said that the complainant’s general condition deterioted further. The complainant had breathlessness & SPO2 dropped to 89 %. Hence was put on nasal O2 & nebulaisation. Complainant became drowsy after that. Meanwhile their family doctor had seen her without opposite party No. 3’s knowledge & had some discussion with complaiant’s relatives. Opposite party No. 3 reached Hospital at 09 : 00 PM at that time complainant’s general condition was not good. Hence case was discussed with complainant’s relatives. Complainant relatives decided to shift the complainant to higher institute with good intensive care backup as per complainant wish. Opposite party No. 3 tried to contact Krauna Hospital & Suvarna Hospital. But there were no vacancy in the Krauna Hospital & Suvarna Hospital therefore the complaiant was shifted to Apex Hospital. From the above pleading and evidence lead on behalf of opposite parties it is crystal clear  like light of the day that there was no deficiency of service or medical negligence on the part of opposite parties.Hence the is liable to be dismissed.

11. A power of attorney holder cannot depose on behalf of principal as held by the apex Court, in a judgment in Janki Vashdeo Bhojwani and Anr. vs. Indusind Bank Ltd. and Ors. [2005 (2) SCC 217]

12.                        Negligence by doctors has to be determined by judges who are not trained in medical science. They rely on experts’ opinion and decide on the basis of basic principles of reasonableness and prudence. This brings into a lot of subjectivity into the decision and the effort is to reduce it and have certain objective criteria. This may sound simple but is tremendously difficult as medical profession evolves and experimentation helps in its evolution. Thus, there is a constant tussle between the established procedures and innovative methods. But, innovation simply for the sake of being different, without any reason is not acceptable. And, these issues make it extremely challenging to decide negligence by doctors. The Hon’ble Forum examines the concept of negligence in medical profession in the light of interpretation of law by the Supreme Court of India and the idea of the ‘reasonable man’.

12.

Introduction

13.                        For a patient, the doctor is like God. And, the God is infallible. But that is what the patient thinks. In reality, doctors are human beings. And, to err is human. Doctors may commit a mistake. Doctors may be negligent. The support staff may be careless. Two acts of negligence may give rise to a much bigger problem. It may be due to gross negligence. Anything is possible. In such a scenario, it is critical to determine who was negligent, and under what circumstances.

14.                        In a country committed to the rule of law, such matters are taken to the court and judges are supposed to decide. However, negligence by doctors is difficult to be determined by judges as they are not trained in medical science. Their decisions are based on experts’ opinion. Judges apply the basic principles of law in conjunction with the law of the land to make a decision. Reasonableness and prudence are the guiding factors.

15.                        We would like to go through these principles in the light of some court judgments and try to understand as to what is expected from a doctor as a reasonable person. As these issues are at the core of medical profession and hospitals are directly affected by new interpretation of an existing law regarding medical professionals, it is pertinent to deal with them at the individual level of the doctor, and also at the employer’s level i.e., hospital.

Negligence

16.                        It is very difficult to define negligence, however, the concept has been accepted in jurisprudence. The authoritative text on the subject in India is the ‘Law of Torts’ by Ratanlal and Dhirajlal. Negligence has been discussed as:

Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.

The definition involves three constituents of negligence:

(1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty;

(2) breach of the said duty; and

(3) consequential damage.

Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort. Thus, the essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

17.Law of Torts, Ratanlal & Dhirajlal, Twenty-fourth Edition 2002, edited by Justice G.P. Singh; pp.441-442 

In the landmark Bolam case, it was held that:

In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action.

Thus, the understanding of negligence hinges on the ‘reasonable man’. Let us try to understand who this ‘reasonable man’ is.

The ‘Reasonable Man’

18.                       It has been held by the courts that the test of reasonableness is that of the ‘ordinary man’ or also called as the ‘reasonable man’. In Bolam case, it was discussed that:

In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man. In one case it has been said you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man.

19.                        Why the mention of ‘Clapham omnibus’? The Bolam judgment was pronounced in 1957 and Clapham, at that time, was a nondescript south London suburb. It represented “ordinary” London. Omnibus was used at that time for the public bus. Thus, “the man on the top of a Clapham omnibus” was a hypothetical person, who was reasonably educated and intelligent but was a non-specialist. The courts used to judge the conduct of any defendant by comparing it with that of the hypothetical ordinary man.

Professional

20.                      According to the English language, a professional is a person doing or practising something as a full-time occupation or for payment or to a make a living; and that person knows the special conventions, forms of politeness, etc. associated with a certain profession. Professional is contrasted with amateur – a person who does something for pleasure and not for payment.

Negligence by professionals

21.                        The Supreme Court of India discussed the conduct of professionals and what may amount to negligence by professionals in Jacob Mathew’s case :

In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution….

22.                       He does not assure his client of the result…A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on……Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

…A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

23.                       The Bolam case very clearly distinguished between the negligence by an ordinary man and negligence by a professional in the following words:

But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

Negligence by Medical Professionals

24.                       In Jacob Mathew case, the Supreme Court of India has gone into details of what is the meaning of negligence by medical professionals.

Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply.

25.                       A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.

26.                       When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.

27.                       So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

28.                      In the Bolam case, the court held that:

… In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent.

… He is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

… A man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.

“I do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century.” That clearly would be wrong.

Conclusion

29.                       There are two possibilities in cases of negligence – either it is negligence of the doctor or it is negligence of the staff. There may be a possibility of negligence, both of the doctor and the staff. In most of the cases, it will be a case of joint and several liability, and both the doctor and the hospital will be liable. The division of liability between the two of them will be decided according to the understanding between the two. As far as determining negligence is considered, courts have to depend on the advice of experts, except in cases of blatant violation of protocol and doing things which are considered to be unreasonable and imprudent. The level of subjectivity in such decisions is quite high and the purpose of law to be certain and specific is defeated to a large extent. Recent decisions are a good step in the direction of making this murky area a bit tidy, however, a lot needs to be done by the courts in the shape of clearer judgments so that the layman can benefit. As of now, the judgments leave a lot of room for discretion, which at times may be exercised by different persons, including doctors and judicial officers, in an undesirable manner. The law on the subject needs to be more precise and certain. That will surely give a better understanding about the “reasonable man”.

PLACE : MUMBAI

DATE :              ADVOCATE FOR OPPOSITE PARTIES