ARTICLE ON FOREIGN JUDGEMENTS IN INDIA

Introduction

Section 2(6) of the Code of Civil Procedure, 1908 (CPC) defines a foreign judgement as a judgement of a foreign court. A foreign court is defined by Section 2(5) of the CPC as a court situated outside India and not established or continued by the authority of the Central Government. CPC dictates the procedure for the enforcement of foreign judgements in India and requires the judgement or decree passed by the foreign court to be conclusive in nature and it should have been decided on the merits of the case by a court of competent jurisdiction. Section 13 of the CPC underlies the principle of res judicata and any judgement passed by a foreign court can be enforced in India and will act as res judicata between the subject parties.

Provisions under the Civil Procedure Code on foreign courts and foreign judgements:

  1. a) Section 2(5) – Definition of Foreign Courts
  2. b) Section 2(6) – Definition of Foreign Judgements
  3. c) Section 13 – When foreign judgement not conclusive
  4. d) Section 14 – Presumption as to foreign judgements
  5. e) Section 44 & 44A – Enforcement of judgements

Foreign Judgements: Meaning

A foreign judgement is conclusive as to any matter directly adjudicated upon thereby but it does not include the reasons for the judgement given by the foreign court. What is conclusive under Section 13 is the judgement and not the reasons.

Section 13 enacts a branch of Rule of Res Judicata in its relations to foreign judgement but not every foreign judgement is made conclusive in the Indian Courts by Section 13.

The word matter in Section 13 is not equivalent to subject-matter rather it means the right claim. Similar to Res Judicata it is founded upon principle of sanctity of judgement competently rendered with some differences like where Res Judicata talks of adjudicated matter and ought to be adjudicated matter i.e. constructive res judicata but foreign judgement talks of directly adjudicated matter not ought to be adjudicated matter.

Obviously, competency of foreign judgement has to certify the dual test of competence of the laws where it is i.e. foreign territory and also in International Law.

Object:

The object behind this provision is to give respect to the judgement of competent foreign court and a legal obligation arises to satisfy the claim. In Private International Law, certain rules are regarded as common to civilized nations. This recognition is accorded on the rules of justice, equity and good conscience.

Binding Nature of Foreign Judgements

Section 13 of the CPC clearly says that a foreign judgment shall be conclusive/ binding as to any matter which has been directly adjudicated upon between the parties except under certain circumstances which have been specified in this section.

Foreign courts would have jurisdiction in the following circumstances:

  1. Where a person is the subject of the foreign country in which the judgement has been obtained;
  2. 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 the plaintiff selects the foreign court as the forum for taking action in which forum he issued later;
  1. Where the party on summons voluntarily appeared; and
  2. Where by an agreement, a person has contracted to submit himself to the forum in which the judgement is obtained.

Conclusiveness of Foreign Judgement is binding or competent

A foreign court has jurisdiction to give judgement in rem provided subject matter is within (Movable/ Immovable) that country but if it is not so then the court will not be considered competent.

In an action in personam foreign courts have jurisdiction in following cases:

  1. If at the time of commencement of action defendant was resident or present in that country.
  2. Where defendant at the time of judgement subject or citizen of such country.
  3. Where the parties objecting a jurisdiction by his own conduct submit to such jurisdiction [Also in International Law].

Foreign Judgement not on Merits

A judgement is on merits when decision is given after taking evidence and after applying mind on truth or falsity of facts as well as the contention of the parties. Decision which was passed on default of part of defendant without trial on evidence was held not on merits.

Foreign Judgements When Not Binding

Section 13 of the Code holds a foreign judgement to be conclusive except under the six circumstances which have been specified in this section.

  1. Foreign Judgement has not been pronounced by a Court of competent jurisdiction;
  2. Foreign Judgement has not been given on the merits of the case;
  3. Foreign Judgement against International or Indian Law;
  4. Foreign Judgement opposed to natural justice;
  5. Where it has been obtained by fraud;
  6. Foreign Judgement founded on breach of Indian Law.

Presumption as to Foreign Judgement

Section 14 of the Code declares that the Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgement that such judgement was pronounced by a court of competent jurisdiction unless contrary is proved. Such presumption may be displaced by proving want of jurisdiction.

  1. Enforcement of Foreign Judgements

A foreign judgement which is conclusive under Section 13 can be enforced in India in the following ways:

  1. Suit on foreign judgement:

A foreign judgement may be enforced by instituting a suit on such foreign judgement. In such suit, the court cannot go into the merits of the original claim and it shall be conclusive as to any matter directly adjudicated upon between the same parties. Such a suit must be filed within a period of 3 years from the date of judgement. [Article 101 of Limitation Act, 1963]

  1. Execution Proceedings:

A foreign judgement may also be enforced by proceedings in execution in certain specific circumstances mentioned in Section 44A of the Code which provides that when a certified copy of a decree from any of the superior courts of any reciprocating territory is filed in a District Court, it shall be executed in India. It is open to the defendant to file any objections open to him/her under Section 13 of the Act when the foreign judgement is sought to be enforced under Section 44A. It is to be noted that the judgement must comply with all the conditions specified under Section 1311 .

The term ‘reciprocating territory’ in Section 44A includes United Kingdom, Singapore, Bangladesh, UAE, Malaysia, Trinidad & Tobago, New Zealand, The Cook Islands (including Niue) and The Trust Territories of Western Samoa, Hong Kong, Papua and New Guinea, Fiji and Aden.

Ex parte foreign decree whether enforceable or not?

Even though a decree has been passed ex parte it will be binding if evidence was taken and decision was given on consideration of evidence. The real test is not whether decision was or was not ex parte but whether it was merely formerly passed as a matter of course or by way of penalty or it was based upon a consideration of the truth or otherwise of plaintiff’s claim.

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