OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 16 June 2011 (1)
Case C‑139/10
Prism Investments BV
v
J. A. van der Meer, in his capacity as receiver in the liquidation of Arilco Holland B.V.
(Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands))
(Regulation (EC) No 44/2001 – Recognition and enforcement of judgments – Grounds for refusing enforcement – Substantive defences to the claim established in the judgment)
I – Introduction
1. The present request for a preliminary ruling concerns Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. (2) It involves the question whether, in the context of appeal proceedings against a declaration of enforceability, the courts of the State in which enforcement is sought are permitted to review the defence of the party against which enforcement is sought that it satisfied the claim established in the foreign judgment after that judgment had been delivered.
II – Legal framework
2. Chapter III of Regulation No 44/2001 governs the recognition and enforcement of judgments.
3. Article 38(1) concerns the enforcement of judgments:
‘A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.’
4. Pursuant to Article 41, the judgment is to be declared enforceable immediately on completion of the formalities in Article 53 without any review of the grounds for refusal under Articles 34 and 35. The party against which enforcement is sought cannot at that stage of the proceedings make any submissions on the application. Pursuant to Article 43, the decision on the application for a declaration of enforceability may be appealed against by either party.
5. Article 45 is concerned with the appeal proceedings and provides as follows:
‘(1) The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.
(2) Under no circumstances may the foreign judgment be reviewed as to its substance.’
6. Article 34 provides:
‘A judgment shall not be recognised:
(1) if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;
(2) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
(3) if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought;
(4) if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.’
7. Article 35 provides:
‘(1) Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72.
(2) In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction.
(3) Subject to paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.’
III – Facts and question referred
8. By judgment of 5 December 2006, the Hof van Beroep te Brussel (Court of Appeal, Brussels) (Belgium) ordered Prism Investments B.V. (‘Prism’) to pay the sum of EUR 1 048 232.30 to Arilco Holland B.V. (‘Arilco’).
9. Arilco was declared insolvent in August 2007 and Mr van der Meer was appointed as receiver. On 3 September 2007, the latter applied to the Rechtbank ‘s‑Hertogenbosch (District Court, ‘s‑Hertogenbosch), pursuant to Article 38 of Regulation No 44/2001, for a declaration of enforceability of the judgment ordering payment for the purpose of having it enforced in the Netherlands. That application was granted.
10. Prism appealed against the latter decision pursuant to Article 43 of Regulation No 44/2001, requesting the Rechtbank to set aside the declaration of enforceability. In support of its application, it submitted that it had already complied, by means of a financial settlement, with its obligations under the judgment in respect of which the declaration of enforceability had been granted.
11. By decision of 22 July 2008 the Rechtbank dismissed Prism’s appeal. The Rechtbank based its decision on the fact that, under Article 45 of Regulation No 44/2001, the declaration of enforceability could be revoked only on one of the grounds specified in Articles 34 and 35 of that regulation. The defence of satisfaction of the claim did not come within one of the grounds listed there and could not therefore be taken into account for the purposes of the appeal proceedings against the declaration of enforceability, but only at the later stage of actual enforcement.
12. Prism lodged an appeal in cassation against the Rechtbank’s decision with the Hoge Raad der Nederlanden (Netherlands Supreme Court), the referring court. The Hoge Raad decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
Does Article 45 of Council Regulation (EC) No 44/2001 preclude the court with which an appeal is lodged under Article 43 or Article 44 of that regulation from refusing or revoking the declaration of enforceability on a ground, other than one of those specified in Articles 34 and 35 of that regulation, which has been advanced against enforcement of the judgment declared enforceable and which arose after that judgment had been delivered, such as the ground that there has been compliance with that judgment?
13. In the proceedings before the Court, written submissions have been made by the receiver of Arilco, Belgium, Germany, the Netherlands, Sweden, the Czech Republic, the United Kingdom and the European Commission. The Netherlands, the Czech Republic, Germany and the Commission took part in the hearing held on 10 February 2011.
IV – Assessment
14. The request for a preliminary ruling concerns the question whether Article 45 of Regulation No 44/2001 precludes the taking into account of substantive defences raised by the party against which enforcement is sought in the proceedings for the issue of a declaration of enforceability. The term ‘substantive defences’ is intended to mean those which arose after the judgment had been delivered and which make the claim established in that judgment ex post facto inapplicable. For example, this may be the defence that payment has been made or that a financial settlement has been reached. Thus, the party against which enforcement is sought in the main proceedings submits that the payment claim established in the judgment had in the interim been satisfied by means of a financial settlement. The referring court is now unsure whether it may take into account this defence of a financial settlement in the appeal proceedings challenging the declaration of enforceability.
15. Before I address the interpretation of Article 45 of the regulation, it is first of all necessary to consider an argument raised by the United Kingdom Government, relating to the enforceability of the judgment in the main proceedings.
A – Enforceability of the judgment within the meaning of Article 38 of Regulation No 44/2001
16. The United Kingdom takes the view that the satisfaction of the claim established in the judgment to be enforced in itself makes enforceability in the State in which judgment was delivered inapplicable and therefore also precludes a declaration of enforceability.
17. It is indeed necessary to agree with the United Kingdom that the enforceability of a judgment in the State in which that judgment was delivered is a precondition for its enforcement in the State in which enforcement is sought. (3) This follows from Article 38 of the regulation itself, under which a ‘judgment given in a Member State and enforceable in that State’ (4) may be enforced in another Member State. It is also correct that, when it is enforced, a judgment may not be given any legal effects which it does not have in the Member State of origin. (5)
18. However, satisfaction of the claim established in the judgment alone does not deprive the judgment of its enforceable nature and that judgment cannot, when enforced abroad, be attributed with legal effects which does not have in the State in which it was delivered.
19. The term ‘enforceable’ in Article 38 of the regulation refers solely to the enforceability, in formal terms, of foreign decisions. (6) Formal enforceability is lacking, for example, if an appeal has been lodged against or still lies from the judgment and the judgment is not provisionally enforceable. (7)
20. Consequently, in its judgment in Apostolides the Court decided that the actual possibilities of enforcement in the State in which judgment was delivered were irrelevant to the question of ‘enforceability’. According to that judgment, the fact that the claimants might encounter difficulties in having the judgments in question enforced in the northern part of Cyprus could not deprive those judgments of their enforceability and did not prevent the courts of the Member State in which enforcement was sought from declaring those judgments to be enforceable. (8)
21. It must likewise also be irrelevant to the existence of enforceability, for the purposes of Article 38 of the regulation, whether satisfaction of the claim in the State in which judgment was delivered may be invoked there against actual enforcement. The enforceable nature of the judgment does not automatically disappear as a result of the fact that the claim on which the judgment is based has been satisfied.
22. Contrary to the submissions of the United Kingdom Government, in the case at issue the question whether there has been satisfaction of the claim by means of a financial settlement is precisely not free from dispute. The written submissions of the receiver demonstrate that he strenuously disputes the financial settlement. In addition, the legal appraisal of the alleged financial settlement also appears to be extremely complex. It would thus initially be necessary to obtain judicial clarification in some form also in the State in which the judgment was delivered as to whether the financial settlement had the effect of satisfying the claim. Accordingly, that effect does not automatically cause the legal effects of the judgment which is to be enforced to be cancelled also in the State in which judgment was delivered.
23. The judgment thus continues to be formally enforceable within the terms of Article 38 of the regulation notwithstanding the defence of satisfaction of the claim raised by the party against which enforcement is sought. (9) The concern behind the United Kingdom’s objection is that the party against which enforcement is sought could be forced to pay the debt a second time. First of all, therefore, let it be made clear once again: if the defence of satisfaction of the claim is not accepted in the proceedings for the issue of a declaration of enforceability, this does not mean that multiple claims may be made against the party against which enforcement is sought and that that party would be without protection.
24. The question as to whether the defence of satisfaction of the claim may be raised at all against enforcement does not arise in the present case, but merely the question of whether this may be raised already at the stage of the declaration of enforceability by the appellate court in the State in which enforcement is sought.
B – Extent of review in appeal proceedings, Article 45 of Regulation No 44/2001
25. Article 45 of Regulation No 44/2001 provides that the court with which an appeal is lodged under Article 43 or Article 44 can refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35.
26. According to the national court, none of the grounds under Articles 34 or 35 of Regulation No 44/2001 is applicable in the main proceedings. Rather, the party against which enforcement is sought has merely raised the defence that the claim established in the judgment which is to be enforced has been extinguished by reason of a financial settlement.
27. It is thus necessary to clarify whether this defence may be taken into account by the appellate court.
1. Grammatical interpretation
28. The wording of the first sentence of Article 45(1) expressly excludes the review of defences other than the barriers to recognition specified in Articles 34 and 35 of the regulation: Article 45(1) states that the court ‘shall’ refuse or revoke a declaration of enforceability ‘only’ on one of the grounds specified in Articles 34 and 35. (10) The defence of satisfaction of the claim is not mentioned in those provisions.
29. The exhaustive nature of Article 45 is underlined by recital 18 in the preamble. According to that recital, the defendant should be able to appeal if he considers ‘one of the grounds for non-enforcement to be present.’ (11) Since the wording ‘a ground for non-enforcement’ has not been chosen in the regulation, it is evident that it proceeds on the basis that the grounds for refusal are exhaustively set out in the regulation and specifically one of the grounds provided for must exist.
2. Predecessor provision in the Brussels Convention
30. The Member States which submit in the present case that the defence of satisfaction of the claim should be taken into account refer to both of the Explanatory Reports on the Brussels Convention (‘the Brussels Convention’), the measure which preceded the regulation. In those reports, it was observed – though in each case without further grounds being stated – that the appeal provided for in Article 36 of the Brussels Convention could be based on the ground that the debt had already been discharged. (12)
31. However, the reliance on that legal view concerning the provision which preceded the regulation is ultimately unconvincing: the commentaries on the Brussels Convention may be relied upon, for the purposes of interpreting Regulation No 44/2001, only in so far as the text and regulatory content of the regulation correspond to those of the Brussels Convention.
32. This is not the case with regard to the first sentence of Article 45(1). Under the Brussels Convention, appeal proceedings against the declaration of enforceability were regulated in Article 36. That provision did not include any statement as to the scope of review in appeal proceedings which was comparable to the use of the word ‘only’ in Article 45 of the regulation. Unlike the position in regard to the regulation, under the Brussels Convention the court in question reviewed the grounds for refusal of the declaration of enforceability already at the first stage of the declaration of enforceability. At this point alone was there a restriction on the scope of review comparable to that in the present Article 45. (13) However, the Brussels Convention did not make any statements as to the subject and scope of review in the appeal proceedings.
33. In addition, apart from the wording of the relevant provisions, the regulation differs significantly from the Brussels Convention in relation to the procedure for the issue of the declaration of enforceability. The central objective of establishing new rules in Regulation No 44/2001 was to accelerate and formalise the procedure for the issue of the declaration of enforceability. (14)
34. Both the procedure for the issue of the declaration of enforceability and the grounds for refusing recognition were significantly revised. (15) The crucial change lies in the fact that in the first phase of the declaration of enforceability the court can no longer carry out any review of the grounds for refusal. Under the regulation, a review of the grounds for refusal may, if at all, be undertaken only in the context of the appeal proceedings. By means of these changes, the procedure for the declaration of enforceability under the regulation was thus considerably tightened up and accelerated.
35. It is also significant that, in his commentary on Regulation No 44/2001, the author of one of the two Explanatory Reports on the Brussels Convention, at variance with the view expressed in relation to that Convention, agrees with the opinion that substantive defences are inadmissible in proceedings under Article 43 et seq. of the regulation; he argues that the interests of the party against which enforcement is sought in having legal protection may also rather be taken into account in the context of the actual enforcement proceedings. (16)
36. Merely on the basis of the differences between the Brussels Convention and the regulation which have just been outlined, no conclusions in relation to the case at issue may be drawn from the Court’s judgment in Case C‑267/97 Coursier either, (17) to which the United Kingdom Government in particular has referred.
37. That case concerned the account which could be taken of a judgment given in a court-supervised liquidation for the purposes of the declaration of enforceability of a judgment ordering payment in another Member State. Specifically, it related to the enforcement in Luxembourg of a French judgment ordering payment. After the French judgment had been delivered, a judgment was delivered in France in which a court-supervised liquidation against the party against which enforcement was sought was terminated because of a lack of sufficient assets. Under French law, this had the effect that the judgment ordering payment could no longer be enforced in France.
38. The question thus arose as to whether the fact that enforcement was no longer possible in France due to the French judgment in the court-supervised liquidation had to be taken into account in Luxembourg in the context of proceedings for the issue of a declaration of enforceability. In this regard, the Court held that the case concerned the question whether account could be taken of the effects of a judgment in a foreign court-supervised liquidation, an area expressly excluded from the ambit of the Brussels Convention. It stated that it was therefore for the courts of the State in which enforcement was sought, in appeal proceedings brought under Article 36 of the Brussels Convention, to determine, in accordance with its domestic law, including the rules of private international law, the legal effects which the judgment would have in the State in which enforcement was sought. (18)
39. An unconsidered application of this statement to the case here at issue is not possible. Whilst in the introductory statements of the Coursier judgment the Court also mentioned the payment of the debt in conjunction with the inability to enforce a foreign judgment, (19) that specific case, as has already been mentioned and as the Swedish Government correctly emphasises, concerned the particular area of insolvency law. Consequently, it is not possible to proceed on the basis that the Court, through its incidental mention of the payment of the debt, intended conclusively to determine the circumstances of the defence of satisfaction of the claim. Therefore it is not only because of the differences which have been highlighted between the Brussels Convention and Regulation No 44/2001 that this case-law of the Court may not be applied by analogy to the case here at issue.
3. Teleological interpretation
40. Consequently, apart from its wording, it is only the spirit and purpose of the proceedings for the issue of a declaration of enforceability under Regulation No 44/2001 itself which can be decisive for the interpretation of Article 45.
41. The regulation seeks to ensure the free movement of judgments from Member States in civil and commercial matters by simplifying the formalities with a view to rapid and simple recognition and enforcement. (20) This is expressed in particular in recitals 2, 6, 16, and 17. Mutual trust in the administration of justice in the Community justifies judgments given in a Member State essentially being recognised automatically without the need for any procedure except in cases of dispute. (21)
42. As stated in recital 17 in the preamble to the regulation, by virtue of the same principle of mutual trust, the procedure for making a judgment enforceable must be efficient and rapid. To that end, at the first stage in the procedure, the declaration that a judgment is enforceable must be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to review of its own motion any of the grounds for non-enforcement provided for by the regulation. A review of the grounds for refusal may take place only in the appeal proceedings.
43. The requirement of speed is also expressed in the second sentence of Article 45(1). Pursuant to that provision, the appeal court must give its decision without delay.
44. Against this background, on the one hand, refusing or revoking the declaration of enforceability pursuant to Article 45 constitutes an exception, which, according to the case-law of the Court, must be interpreted restrictively. (22)
45. On the other hand, the objective of a ‘rapid and simple recognition and enforcement of judgments’ (23) requires that two principles be taken into account: firstly, a quick and simple procedure for obtaining the declaration of enforceability and, secondly, the uniform nature of the procedure for the issue of a declaration of enforceability throughout the European Union.
46. The act of taking into account the defence of satisfaction of the claim in the procedure for the issue of a declaration of enforceability cannot be reconciled with those principles.
47. By taking into account substantive defences in the procedure for the issue of a declaration of enforceability, that procedure would become inflated, unduly complicated and subject to delay. The case at issue provides a clear example of this. The defence against the declaration of enforceability raised by the party against which enforcement is sought concerns the alleged satisfaction, by means of a financial settlement, of the claim established in the judgment. As is apparent from the written submissions of the receiver, the financial settlement is disputed in a substantiated way. It will thus not be possible to establish, in a straightforward and rapid manner, whether the preconditions for a financial settlement exist. A comprehensive examination of the facts in relation to the claim which is being set off may be necessary. In addition, it may perhaps even be necessary for the Netherlands court to obtain an expert report on the requirements for and consequences of a financial settlement under Belgian law.
48. Furthermore, the examination of the facts which is frequently necessary for the purpose of reviewing a defence of satisfaction of a claim does not fit into the context of the appeal proceedings under Article 45 of the regulation. This is evident not least from the fact that the courts having jurisdiction under the regulation are generally higher courts, (24) in Germany, for instance, the Oberlandesgerichte (higher regional courts). If substantive defences were permitted in proceedings for the issue of a declaration of enforceability, the higher courts would rule on them at first instance. Not only does this appear to be at variance with the scheme of the regulation, but the parties would also be deprived of a judicial forum responsible for establishing the facts.
49. This line of argument, based on the efficiency of the procedure for the issue of a declaration of enforceability, also cannot be challenged by reference to procedural economy, as submitted in particular by the German Government.
50. This objection is in the terms that it would save the parties from being involved in two sets of proceedings if it were made possible for them to assert substantive defences in the context of the declaration of enforceability without having to wait for the subsequent stage of actual enforcement in order to do so.
51. At first sight, this argument seems plausible. On closer examination, however, it becomes apparent that from the outset it applies only if, in the appeal proceedings, the party against which enforcement is sought asserts both one of the grounds for non-recognition under Articles 34 and 35 of the regulation and a substantive-law defence. Only in those circumstances, once it has been decided that account cannot be taken of the substantive defence in the proceedings for the issue of a declaration of enforceability, will it be necessary to conduct appeal proceedings in respect of the declaration of enforceability and subsequently also proceedings in the context of enforcement. However, a situation in which the party against which enforcement is sought asserts one of the grounds for refusal laid down in Articles 34 and 35 of the regulation and at the same time also puts forward the defence that the claim has been satisfied will arise extremely rarely.
52. If the party against which enforcement is sought raises only the defence of satisfaction of the claim – as, for example, in the case at issue, in which the party against which enforcement is sought does not additionally rely on one of the grounds in Articles 34 and 35 of the regulation – and this is disallowed in the proceedings for the issue of a declaration of enforceability, there is also only one single set of court proceedings. If this defence is not taken into account in the proceedings for the issue of a declaration of enforceability, the party against which enforcement is sought does not have to lodge an appeal, but must put forward its defence solely in the context of enforcement. In those circumstances the result therefore is that two sets of proceedings are not brought.
53. If one accepts the exhaustive nature of the grounds for refusal of the declaration of enforceability which follows from the wording of the provision, the uniform organisation of proceedings throughout the European Union is also ensured. In those circumstances, the result is avoided that substantive defences might be able to be taken into account in one Member State and not in others. Such a discrepancy would stand in the way of the uniform organisation of proceedings for the issue of a declaration of enforceability throughout the European Union. This uniform nature of the proceedings is, however, an important aspect of the simplicity and predictability of the enforcement of judgments abroad.
54. As the Commission has convincingly explained, the regulation, specifically by means of simplifying and tightening up the procedure for the issue of a declaration of enforceability, is concerned with placing foreign judgments on the same footing as national judgments as quickly as possible in the State in which enforcement is sought. (25) Following the rapid and formalised declaration of enforceability, foreign and domestic judgments are, as soon as possible, to be treated equally. The Belgian Government also correctly pointed out that, for the purposes of the regulation, foreign judgments should be assimilated as far as possible to domestic judgments. Therefore there should not be any discrimination as compared with purely national situations. It submitted that, where the facts of the case are purely national, however, the party against which enforcement is sought is also referred, in regard to the defence of satisfaction of the claim, to the actual enforcement proceedings.
55. In this connection, the German Government’s answer to a question at the hearing should also be mentioned. Under German law, a judgment is not automatically enforceable, but requires, for that purpose, the prior grant of a so-called ‘Klausel’ (clause), which establishes its enforceability. If this clause is regarded as equivalent to the declaration of enforceability in the cross-border enforcement of judgments, the question then arises as to whether these two situations are treated equally. The German Government conceded that in this respect a difference in the treatment of national and cross-border situations might arise under German law: in German proceedings for the issue of such a clause, the defence of satisfaction of the claim cannot be taken into account, but may be raised only in the context of the actual enforcement. By contrast, in the case of the enforcement of foreign judgments, German law permits the defence of satisfaction of the claim to be taken into account in the proceedings for the issue of a declaration of enforceability.
56. As has already been explained above, the argument of procedural economy cannot justify this difference in treatment. The principle of equal treatment therefore also requires that, for the purposes of the declaration of enforceability, only the grounds for refusal which are expressly provided for in the regulation should be taken into account and other defences should be referred to the actual enforcement proceedings, as is also the position with regard to the enforcement of national judgments.
4. Special case of the uncontested defences of the party against which enforcement is sought – courts with jurisdiction for the assertion of substantive defences
57. In the main proceedings in the present case, the satisfaction, by means of a financial settlement, of the claim established in the judgment is the subject of dispute between the parties. In situations in which the satisfaction of the claim is uncontested by the parties, or where it has been determined in a conclusive and legally binding way, there is much to point in favour of making an exception from the basic denial of the ability to take into account satisfaction of the claim in proceedings for the issue of a declaration of enforceability, since an uncontested defence that the claim has been satisfied will not lead to any delay in those proceedings. (26) However, since this question was not the subject of the proceedings at issue, there is no need to give a final decision on this point.
58. Likewise, the question as to the Member State in which the party against which enforcement is sought must raise the defence of satisfaction of the claim is also not at issue. The proceedings in question were concerned merely with the question of whether that defence could be raised in proceedings for the issue of a declaration of enforceability. All of the parties to the proceedings at issue automatically assumed that if the defence of satisfaction of the claim was not to be raised in the proceedings for the issue of a declaration of enforceability, then it had to be raised in the context of the actual enforcement proceedings in the State in which enforcement was sought. However, in academic writing views have also been expressed on the question whether only the courts of the State in which judgment was delivered should have jurisdiction to do so. (27) An answer to this question might be derived from Article 22(5) of Regulation No 44/2001, which establishes exclusive jurisdiction in the State in which enforcement is sought in ‘proceedings concerned with the enforcement of judgments’.
59. However, as the referring court has not asked a question in this regard and this question was accordingly not the subject of the proceedings, the case at issue does not constitute an appropriate context in which to resolve this problem conclusively. Should the Court nevertheless wish to decide this question, in my opinion the oral procedure would have to be reopened in order to allow the parties the opportunity to submit observations.
60. In summary, it remains to be repeated once more that the taking into account of substantive defences, which arose after the delivery of the judgment to be enforced and which concern the claim established in the judgment itself, in appeal proceedings under Article 43 et seq. of Regulation No 44/2001 would lead to an excessively long and inflated procedure, which would not be compatible with the idea of the procedure for the issue of a declaration of enforceability as envisaged by the regulation. Accordingly, the first sentence of Article 45(1) of Regulation No 44/2001 precludes the taking into account of such substantive defences.
V – Conclusion
61. In light of the foregoing, I propose that the Court should reply to the request for a preliminary ruling in the following terms:
Article 45 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters precludes a court with which an appeal is lodged under Article 43 or Article 44 of that regulation from reviewing the defence of the party against which enforcement is sought that it satisfied the claim established in the judgment to be enforced after that judgment had been delivered, in the case where that defence is the subject of dispute between the parties.