Indian legal system is based on Common law legal system. The Constitution of India is inspired from laws and statute of other countries, as many provisions of Indian Constitution has been borrowed from the Statutes of other countries. Fundamental Rights from The U.S. Bill of Rights, DPSP from Ireland etc. Therefore, it is necessary that Indian Judiciary enforce such foreign decrees and judgments in India which is in consonance with the basic fundamental rules and laws in force in India. The Indian Code of Civil Procedure, 1908 (CPC) lays down the procedure for enforcement of foreign judgments and decrees in India. The basic principle which is followed while enforcing a foreign judgment or decree in India is to ensure that the judgment or decree is a conclusive one, passed on the merits of the case and by a superior court having competent jurisdiction.
A foreign judgment is defined under section 2 (6) of the CPC as a judgment of a foreign court. A foreign court, under section 2(5) of CPC, means a court situated outside India and not established or continued by the authority of the Central Government. Section 2(5) of the Code defines a ‘foreign court’ to mean a Court outside India and not established or continued by the authority of the Central Government. CPC sections that deal with foreign judgment/decrees are Section 13, Section 14 and Section 44. Section 13 embodies the principle of Private International Law that court will not enforce a foreign judgment if the judgment is not that of a competent court. The rules laid down under section 13 are of the substantive law, as well, along with being that of procedural law. Sections 13 and 14 enact a rule of res judicata in case of foreign judgments. These provisions embody the principle of private international law that a judgment delivered by a foreign court of competent jurisdiction can be enforced by an Indian court and will operate as res judicata between the parties thereto except in the cases mentioned in Section 13.
Jurisdiction To Foreign Courts
The following circumstances would give jurisdiction to foreign courts:
- Where the person is a subject of the foreign country in which the judgment has been obtained;
- Where he was a resident in the foreign country when the action was commenced and the summons was served on him;
- Where the person in the character of plaintiff selects the foreign court as the forum for taking action in which forum he issued later;
- Where the party on summons voluntarily appeared; and
- Whereby an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained.
Binding Nature of Foreign Judgments: Principles
The Code of Civil Procedure provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties pr between parties under whom they or any of them claim litigating under the same title except –
- a) Where it has not been pronounced by 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 proceeding to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
- d) Where the proceeding in which the judgment was obtained or 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
Section 14 merely states the presumption an Indian court takes when a document supposing to be a certified copy of a foreign judgment is presented before it. The Indian Courts presume that a Court of competent jurisdiction pronounced the judgment unless the contrary appears on the record, but proving want of jurisdiction may displace such presumption.
Conclusiveness of Foreign Judgments
Section 13 lays down the fundamental rules which should not be violated by any foreign court in passing a decree or judgment. The decree or judgment of foreign court will be conclusive except where it comes under any of the clauses (a) to (f) of Section 13.
When foreign judgment not conclusive.-A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except,—
(a) Where it has not been pronounced by a Court of competent jurisdiction;
(b) Where it has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) Where it has been obtained by fraud;
(f) Were it sustains a claim founded on a breach of any law in force in India.
In Brijlal Ramjidas v. Govindram Gordhandas Seksaria, Supreme Court held that Section 13 speaks not only of “Judgment” but “any matter thereby directly adjudicated upon”. The word ‘any’ clearly shows that all the adjudicative parts of the judgment are equally conclusive.
Enforcement of Foreign Judgments
A foreign judgment, which is conclusive under Section 13 of the Code, can be enforced in India in the following ways:
- By instituting a suit on such foreign judgment
A foreign judgment may be enforced by instituting a suit on such foreign judgment. The general principle of law is that any decision by a foreign court, tribunal or quasi-judicial authority is not enforceable in a country unless such decision is embodied in a decree of a court of that country. In such a suit, the court cannot go into the merits of the original claim and it shall be conclusive as to any matter thereby directly adjudicated upon between the same parties. Such a suit must be filed within a period of three years from the date of the judgment.
- Execution Proceedings
A foreign judgment may also be enforced by proceedings in execution in certain specified cases mentioned in Section 44-A of the Code. The said section provides that where a certified copy of a decree if 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. When a foreign judgment is sought to be executed under Section 44-A, it will be open to the judgment-debtor to rake all objections, which would have been open to him under Section 13 if a suit had been filed on such judgment. The fact that out of six exceptions there has been due compliance with some of the exceptions is of no avail. The decree can be executed under Section 44-A only if all the conditions of Section 13 (a) to (f) are satisfied.
Principles laid down in the section do not apply- It is not open to the party, who is party to the award, to contend that the award was not given on merits of the case. Say that if the award was given against the rules of natural justice or it was fraudulently obtained, the party may not be prevented from putting forward those contentions. But it is difficult to accept the view that because on a foreign judgment it is open to a party to contend that it was not given on the merits of the case, it is equally open to a party who is resisting the suit on the award to contend that the award was not given on the merits of the case.
Only if the award given in a foreign country is reinforced by a decree of the Court of that country the courts will be bound to take notice of it but without such a decree reinforcing such award, the award must be deemed to be non-existent.
Mode of enforcement of a foreign judgment or decree
There are two ways in which a foreign judgment or decree can be enforced in India depending on whether the judgment or decree has been given by a court in a reciprocating territory or not.
- Foreign decree of a reciprocating territory be executed as an Indian decree
By virtue of section 44A of the CPC, a decree of any superior court of a reciprocating territory shall be executed in India as a decree passed by the Indian district court.
A reciprocating territory is defined in Explanation I to section 44A as: “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.
A judgment from a court of a reciprocating territory can be directly enforced in India by filing an execution application. Section 44A (1) of the CPC states that where a certified copy of a decree of any superior court of a 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 (meaning that the entire scheme of execution of decrees as laid down in Order 21 of the CPC will be applicable).
While filing the execution application the original certified copy of the decree along with a certificate from the superior court stating the extent to which the decree has been satisfied or adjusted has to be annexed to the application.
- Filing a suit in case of decrees from non-reciprocating territories
Where a judgment or decree is not of a superior court of a reciprocating territory, a suit has to be filed in a court of competent jurisdiction in India on that foreign judgment or on the original cause of action or both.
In Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering Ltd., the Bombay High Court observed that in case of a decree from a non-reciprocating foreign territory, the decree-holder should file, in a domestic Indian court of competent jurisdiction, a suit on that foreign decree or on the original, underlying cause of action, or both.
He cannot simply execute such a foreign decree. He can only execute the resulting domestic decree. To obtain that decree, he must show that the foreign decree, if he sues on it, satisfies the tests of section 13 of the CPC.
A suit on a foreign judgment/decree must be filed within a period of three years from the date of the judgment/decree.
– Samriddhi Pandey
Gujarat National Law University
Citations and References
 Moloji v. Shankar  SCC 1737 (SC)
 Code of Civil Procedure, 1908.
 Code of Civil Procedure, Twenty-Sixth Edition, Eastern Book Company, 2014, Pg.9
 Brijlal Ramjidas v. Govindram Gordhandas Seksaria, (1946-47)74 IA 203: AIR 1947PC 192 (194)
 Code of Civil Procedure, Twenty-Sixth Edition, Eastern Book Company, 2014, pg22.
 2014 (2) Bom CR 769
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