Introduction

To begin with, it is extremely necessary to understand what a foreign court is and then to understand what a foreign judgement is.

Section 2, sub-section 5 of the Code of Civil Procedure defines a foreign court. “A foreign court” means, “a Court situated outside India and not established or continued by the authority of the Central Government1.”

From the above definition provided by the Code of Civil Procedure, it is clear that there are two conditions which need to be satisfied in order to show whether a court falls under the ambit of the definition of a foreign court as provided under Section 2(5):

1) It must be situated outside India.

2) It must not have been established or continued by the Central Government.

Section 2, sub-section 6, defines what a foreign judgement is. A “foreign judgement” means, “the judgement of a foreign court2.”

Basically, a foreign judgement is a judgement which is passed by a court not within the territorial boundaries or within the territory of India, which as referred to above, is a foreign court. For example, courts in England, Scotland, Burma, Pakistan, et cetera. A foreign judgement is passed in a foreign court and the same could be deliberated upon in the District and the High Courts in India, provided they are conclusive. This article would be dealing with the same issue at hand, as to whether a foreign judgement can be executed in India or not. If it can, then how can it be enforced and if can’t, then why it cannot be enforced or executed.

Firstly, the important aspect which needs to be focused upon is, can a foreign judgement be enforceable in India. Answering this question in the affirmative, it is indeed possible to apply foreign judgements in India. However, as it is said, that the law is never crystal clear and it is imperative to comprehend the law clearly and read between the lines. Similarly, a foreign judgement too, is subject to certain conditions which are laid down in the Code of Civil Procedure, 1908. A judgement which is deliberated upon by a foreign court which is not in India, but in a reciprocating territory can be executed in India. The focus on what a

reciprocating territory is shall be analysed in the course of the article. However, it is important to note as to how a foreign judgement or a foreign decree can be enforced and applied in India under the provisions which are prescribed for its enforcement under the Code of Civil Procedure, 1908.

The applicability of Foreign Judgements and Decrees in India is governed under Section 44A of the Code of Civil Procedure (CPC) read along with the provisions of Section 13 of the Code of Civil Procedure. According to Section 13 of the Code of Civil Procedure, 1908, a proceeding against a foreign judgement can be instituted in the following two ways:

1) A proceeding could be instituted under the provisions of Section 44A read alongside the necessary provisions which are provided in Section 13 of the CPC, this is when the matter that has to be challenged is decided by a competent court in the, “reciprocating territories.”

2) There are reciprocating territories and non-reciprocating territories. In case, a judgement which is passed in the territory of a non-reciprocating country needs to be challenged, then a fresh civil suit needs to be filed in the court in India in order to challenge the judgement passed by the foreign court. However, not only civil, but even criminal proceedings could be instituted challenging the judgement or the decree, passed by a court in a reciprocating or a non-reciprocating territory, however, they are also subject to certain exceptions which shall be dealt with ahead.

Before moving further and getting into the intricacies as to how international judgements can be enforced and applied in India, it is necessary to firstly rely upon the definition of what a Reciprocating Territory is. Section 44A of the Code of Civil Procedure explains what reciprocating territories are. It means, “any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory and the superior courts with reference to any such territory, are the courts as may be specified by the notification of the government3.” This means that a reciprocating territory is any country or any territory which is not in India, i.e. it is far away or out of the territorial boundaries of India and these countries or territories have been deemed to be declared as a reciprocating territory by the government by providing a notification in the Official Gazette. It also states that the Superior Courts in those territories are also deemed to be competent courthouses, who have passed the judgement which could be adjudicated in the courts in India. So far, there are twelve countries who can be identified as reciprocating territories of India and they are, the

United Kingdom, Aden, Fiji, Republic of Singapore, Federation of Malaysia, Trinidad and Tobago, New Zealand, the Cook Island (including Niue) and the trust territory of Western Samoa, Hong Kong, Papua and New Guinea, Bangladesh and recently even UAE (United Arab Emirates) has been regarded to be a reciprocating territory to India, by the notification dated 17.01.2020, in the Official Gazette.4

Judgements which are passed by a non-reciprocating territory can too be enforced in India in the same manner as if a judgement by a reciprocating country is challenged, which is provided under the provisions of Sections 13 and 14 of the Code of Civil Procedure, however if it falls within the ambit of the exceptions which are guaranteed under Section 13, the said judgement cannot be deemed to be conclusive. For a judgement to be conclusive, it should not fulfil any of the exceptions which are guaranteed under Section 13 of the Code.

2. Section 13 of the Code of Civil Procedure.

Section 13 of the Code of Civil Procedure, 1908, states as to when is a foreign judgement not conclusive. A judgement is not conclusive when it is given by the foreign court, on the basis of an ex-parte hearing and without listening to both the parties. However, there are many more pre-conditions which come along when it comes to declaring a judgement as non-conclusive, which are elucidated in clauses (a) to (f) of Section 13 of the Code. A judgement shall be deemed to be conclusive, if a dispute arises between two parties abroad in a foreign court and the court adjudicates the matter in the favour of one of the parties, however, after hearing both the parties and strictly adhering to all the procedures when it comes to deliberating a valid judgement and the judgement does not fall under the ambit of the exceptions provided under Section 13 then it can be regarded as a conclusive judgement. Again, if at all, a dispute arises between those two parties in India and one of the parties produces the certified copy of the judgement or the decree then the court will see to it whether the certified copy of the judgement or the decree is genuine or not, under the provisions of Section 86 of the Indian Evidence Act, 1872.5 After raising the presumption of the court, the burden to prove that the judgement or the decree passed by the foreign court is not conclusive falls upon the party who raised the

presumption with regards to the fact that the judgement is not conclusive and cannot be adjudicated upon. This simply means that they have to prove that the judgement suffers from the vice of the exceptions provided under Section 13 of the Code. The judgement then shall be rendered non-conclusive, however, the judgement shall still be relevant and admissible in the Court of Law.

Section 13 prescribes the following, “A foreign judgement 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 judgement was obtained are opposed to the principles of natural justice;

e) Where it had been obtained by fraud;

f) Where it sustains a claim founded on a breach of any law in force in India.6

The keywords to be noted here are, “same parties” and “under the same title.” Hence, from the above explanation of Section 13 of the Code of Civil Procedure, it can be concluded that if it is proved that a particular matter which has been brought up for adjudication before a court in India decided by a foreign court, falls within the ambit of any one of the exceptions which are provided under Section 13, then the said judgement would not be conclusive. Apart from these six exceptions, it also needs to comply with the laws of limitation. The period of limitation which is guaranteed to an individual to seek redress before a District court or a High Court with regards to a foreign judgement or decree is three years under the provisions of Section 101 of the Limitation Act, 1963, which clearly states that, “upon a judgement, including a foreign judgement, or a recognisance, the period of limitation is three years from the date of the judgement or recognisance.7” This simply means that the party who believes that the Superior court abroad has not dealt with the matter effectively and believes that justice has not been rendered to him/her, can approach a District or a High Court in India within a span of three years from the date when the judgement or the decree was passed by the competent foreign court to get the matter adjudicated as the decree or the judgement then falls under the scanner

of Section 13 of the Code. However, this is in case of a foreign court judgement or a decree passed in a non-reciprocating territory. The period of limitation as prescribed by the Limitation Act, 1963 to approach a court with respect to a foreign judgement or decree, in the case of a judgement or a decree passed by a reciprocating territory is twelve years from the date on which the judgement or the decree was passed.

Furthermore, the rules laid down in Section 13 of the Code of Civil Procedure are rules of substantive law and not merely of procedural law.8 If a violation of any order passed by a Civil Court is made, on the grounds of the issuing of a red corner notice, the Court shall then look into the matter as to whether the same has undergone the tests or doesn’t fall beyond the exceptions of Section 13 and 44A of the Code.9

3. A foreign judgement, when it is not conclusive, i.e. it cannot be applicable in India.

A foreign judgement, before it can be deemed to be conclusive, needs to show that there is a valid cause of action for which the suit is being instituted upon it in India and can be adjudicated upon. It must be evident that the court which pronounced the same, followed the six conditions which are prescribed under Section 13 of the Code. However, if a judgement does abide by any of the six exceptions which are provided under Section 13 of the Code, then it can simply be deemed that the judgement upon which a suit is instituted is simply not conclusive. In considering whether a judgement of a foreign court is conclusive, the courts in India will not check whether the conclusions which are recorded thereby are supported by the evidence or are otherwise correct, it will simply check whether the judgement was passed keeping in mind the six conditions which are laid down under Section 13 of the Code.10 The basis on which the applicability of a foreign judgement in India depends, is that the judgement should impose an obligation upon the defendant. There needs to be a clear nexus between the defendant and the applicability of the judgement which needs to be apparent on the face of it and should be sufficiently close to make it the duty of the defendant to fulfil or perform his obligation.11

In a nutshell, irrespective of whether a judgement is passed by a reciprocating territory or by a non-reciprocating territory, it should not fall under the exceptions which are provided under Section 13 of the Code, however, if it falls within the ambit of the exceptions provided under Section 13 then the said judgement will not be deemed to be regarded as a conclusive one as

any matter thereby adjudicated upon, will be open to collateral attacks on the grounds as provided under the provisions in Section 13.12

4. Conditions that can deem a foreign judgement to be regarded as conclusive:

A foreign judgement can be deemed to be conclusive based on the six conditions which are provided under the provisions of Section 13, clauses (a) to (f) of the Code and they are as follows:

a) The Court which decided upon the case, should be a court of competent jurisdiction: Clause (a) provides that a judgement delivered by a foreign court will not be deemed to be conclusive if the court which decided upon the case was not a competent court. To check whether a foreign court is of a competent jurisdiction within the provisions of this section, it needs to be pondered upon as to whether it is in accordance with the provisions of International Law. An award made in New York was confirmed by the Supreme Court of New York. Thereafter, a suit to enforce the award or the judgement was filed in the Bombay High Court. It was not maintainable as firstly, the suit was based on a judgement which was delivered in New York and the cause of action must be said to have arisen at that place beyond the jurisdiction of the Bombay High Court. Secondly, the award, according to the laws in New York was not final and enforceable and therefore, it could not furnish a cause of action in India13. In the field of private international law, the courts can out rightly refuse to adhere to a rule of foreign law or recognize a foreign judgement or a foreign arbitral award if it is found that the same is contrary to the public policy of the country in which it is deemed to be applied or executed14. A decree by a foreign court against a defendant in absentem is also valid and can be applied in the country of the court by which it was delivered, when it is authorized by special legislation15.

b) The judgement should be delivered on its merits. Now, clause (b) of Section 13 of the Code emphasises on the fact that when a judgement which is challenged by instituting a proceeding against it in India, it should be delivered on its merits, i.e. for a foreign judgement to be conclusive and applicable in the courts of India, it should be heard and decided after properly hearing both the parties to the case and only then shall it be deemed to be conclusive under the provisions of Section 13 of the Code.

In this case, solely shall it operate as res judicata. Section 11 of the Code, 190816 provides for the rule of res judicata or the rule of conclusiveness of a judgement, as to the points decided either of facts or of law, or of facts and law, in every subsequent matters that arise between the same parties. It states that once a matter is finally decided upon by a competent court, no party can be allowed to reopen the same matter in a subsequent suit. The doctrine of, “res judicata” has been explained by Justice Das Gupta in the case of, Satyadhyan Ghosal v. Deorjin Deb17 as, “The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter, whether on a question of fact or a question of law, has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.”

The principle of res judicata explains that a judgement which is deliberated and argued upon, cannot be adjudged or adjudicated again. However, the judgement can be deliberated or executed again, if an appeal is taken to a higher court or if they appeal was dismissed way before. Basically, the crux of the principle of res judicata is that a judgement cannot be enforced again once a decision has been made on it by a competent court, until and unless there arises a need wherein the ends of justice have not been met. In such a case, the aggrieved party can again file an appeal and secure his/her justice.

The true test for determining the question as to whether the judgement has been delivered on the basis of its merits, is to see whether it has been given as a penalty for any conduct of the defendant or whether it is based on a consideration of the truth or otherwise of the appellant’s case.18

c) The Judgement, if passed by not correctly interpreting the International Law or it clearly failing to recognise the laws followed by the Indian Courts cannot be regarded as a conclusive judgement. Clause (c) of Section 13 of the Code states that a judgement cannot be deemed to be conclusive if at all it has been delivered by not correctly

interpreting the provisions of International Law or it has failed to recognise and correctly interpret the laws which are followed by the Indian Courts. In the case of Y.Narasimha v. Venkatlaxmi19, the husband and wife got married under the provisions of the Hindu Marriage Act, 1955 in India. However, the husband later filed a suit for divorce in the American Court, thereby misleading the court that even the wife resided in America, when the truth was that the wife was not a domicile of America and a result, the summons was not delivered to her and an ex-parte divorce was granted to the husband. It was held that, if the marriage was registered according to the provisions of the Hindu Marriage Act, 1955, then the divorce proceedings too should have been according to the provisions laid down under the Hindu Marriage Act. Plus, the marriage was registered in India, under the law which the Indian Courts follow, therefore the annulment of the marriage too should’ve been done according to the laws followed by the Indian Courts. It is because of this reason, the judgement was not said to be conclusive and fell under the clutches of the exceptions guaranteed under Section 13.

d) According to Clause (d) of the Section 13 of the Code, it states that a judgement cannot be deemed to be conclusive if at all it has been passed by not adhering to the principles of Natural Justice. The veracity of whether the judgement has been passed by keeping in mind the principles of natural justice will be checked by the court after a certified copy of the judgement or decree is filed before the court where the proceedings are instituted against it. Thus, a judgement which is passed by the court, simply in the favour of the plaintiff without giving a notice regarding the same to the defendant or without giving the defendant a reasonable opportunity to present his case is contrary to the principles of natural justice. Also, if a judge has any vested interest in the subject matter of the case over which he or she is presiding, then it would clearly vitiate the proceedings on the grounds of principles of natural justice. The onus, however, would be on the party setting up the case of bias by proving the same by cogent evidence.20

e) The judgement when obtained by fraud, is clearly not conclusive, which is what Clause (e) of Section 13 provides. Fraud invalidating a foreign judgement may be either a fraud on the part of the party in whose favour the judgement was delivered or on the part of the court which pronounces the judgement. This simply means that the judgement was a result of a fraud that was committed by either of the parties to the suit. A fraud could be committed by simply twisting or misrepresenting the facts or misleading the court in any way. For example, a plaintiff files a suit in a foreign court and at the time of

filing the suit, he/she makes sure that the court believes that the defendant too, is a domicile of the country where the suit is filed, but the truth could be that the defendant, as a matter of fact, is not a domicile of that particular country. This could lead to a judgement being deliberated and pronounced in a fraudulent manner, as the summons wouldn’t be served to the defendant to appear before the court and present his case and the judgement would therefore be an ex parte judgement in the favour of the Plaintiff.

f) The judgement which is founded on a breach of any law in force in India is by all means not conclusive as provided under Clause (f) of Section 13 of the Code of Civil Procedure. Thus, a foreign judgement with regards to a gambling debt cannot certainly be applied in Indian Courts. However, a foreign judgement on a claim which is barred according to the Indian Law cannot be said to be based upon the violation of any Indian Laws in force.

5. How can a foreign judgement be applied?

Where a foreign judgement is deemed to be applicable or enforced in execution under the provisions of Sections 44 and 44A, it will be open to the judgement-debtor to raise all sorts of objections which would have been open to him under Section 13, if the proceedings were to be initiated on the judgement21. The ‘comity of courts’ principle ensures that foreign judgements and orders are unconditionally conclusive of the matter in controversy. Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty-bound to examine a matter independently taking the foreign judgements, if any, as an input for its final adjudication22.

6. Section 44A of the Code of Civil Procedure

Section 44A of the Code of Civil Procedure, 1908, provides for the execution of decrees passed by the Courts in reciprocating territories. Reciprocating territories, as explained above are those countries or territories which are not within the territorial boundaries of India. However, they have been deemed to be equal or at par with our country and therefore, their courts are also declared to superior competent court and judgements passed by such courts can be very well applied in the Indian courts, however, certain exceptions need to kept in mind, which as explained above, falls under the ambit and scope of Section 13. The competent court for the execution of judgements and decrees is the District Court with jurisdiction to entertain the

matter in dispute, or a High Court. A High Court can deal with such cases through its ordinary civil jurisdiction.

There is a clear lawful difference between the recognition and enforcement of a foreign judgement. This differentiation has been provided under Section 13 of the Code and the criterion provided for the same thereunder is the pre-condition to any enforcement proceedings. For executing a suit against a judgement in India, the foreign judgement needs to be complacent with the rules which emanate from Section 13 of the Code, those six rules need to be specially followed if a proceeding is to be instituted against a judgement in India, either in the District Court or in the High Court. There are a lot of judgements and decrees that may fall very well within the scope of the guidelines provided under Section 13 of the Code, however, not all types of judgements or decrees are deemed to be applicable. Courts in India have contended that interlocutory orders on monetary judgements, costs, jurisdiction, mandatory injunctions, divorce decrees, and anti-suit injunctions are all applicable to be challenged in the courts in India. However, the courts have also provided that ex-parte decisions cannot be enforceable per se. However, in the case where the judgement is based on its merits, has been decided by a competent court, the provisions of International Law are adhered to, as well as correctly keeping track of Indian laws and it has been passed while also giving the defendant an adequate opportunity to present his case, in such a scenario an ex-parte decision will be enforced.

Lastly, Section 44A provides a list of requirements which need to be met for the enforcement of foreign judgements and decrees from reciprocating as well as non-reciprocating territories and they are as follows:

1) “Where a certified copy of a 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.

2) 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.

3) 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 any such execution of any such decree, if it is shown to

the satisfaction of the court that the decree falls within any of the exceptions which are specified under clauses (a) to (f) of Section 13.23

As explained above, a certified copy of the decree or the judgement of any of the Superior Courts of any reciprocating territories needs to be attached and filed in the courts in India, in order to ensure that the courts in India adjudicate it. The first provision of Section 44A, explains that when a certified copy of a decree or a judgement, which is passed by the Superior Courts of any reciprocating territories is presented before any District or High Court in India, the same shall be deemed to be treated as if it was passed in India itself, however, apart from that a certificate shall also be provided to the District or the High Court which should be issued by a Superior court of the reciprocating territory which clearly states the extent to which the decree or the judgement has been satisfied. Lastly, what the provisions of Section 44A provide is that apart from all of these conditions, it is very important to adhere to the six exceptions which are provided under Section 13 of the Code of Civil Procedure, 1908. It could be said that, these six conditions are the major deciding factor as to whether the decree or the judgement of any of the Superior courts of any reciprocating territory can be adjudicated in India or not. The six exceptions ranging from clauses (a) to (f) of Section 13 are the most important exceptions. If a judgement falls under the ambit of any of these exceptions, then that judgement cannot be executed. For a judgement to be executed in the Indian Courts, it needs to be free from the vices provided under Section 13, clauses (a) to (f).

7) Solution

One can see that; the plaintiff has to resort to the Indian Courts to either get the foreign judgement executed under Section 44A or needs to file a fresh suit upon the judgement for its applicability in India. Therefore, by getting a decree or a judgement delivered by a foreign court, the plaintiff simply tends to avoid the hassles of leading evidence in the Indian Courts, however runs a very, very high risk on account of the exceptions guaranteed under Section 13 of the Code. Therefore, Foreign Judgements can certainly be applicable in India, provided it does not fall under the exceptions prescribed under the provisions of Section 13 and the provisions of Section 44A of the Code. However, what is advisable for an Indian plaintiff is that he/she should probably institute a proceeding against the defendant in the Indian Courts itself if the defendant too is an Indian. International Courts usually demand for more documentary evidence and that may not be very convenient.

8. Conclusion

A lot of times, disputes tend to arise between Indian Parties in an International Matters or over a range of other transactions. The parties to the dispute, however, have an option of bringing the suit in the concerned foreign country where the matter has taken place and then applying for a suit and instituting proceedings on the judgement which is passed with regards to that dispute. The parties, however, have to wait if they decide to enforce a proceeding against the judgement which is passed by a competent court, however, the Limitation period which is prescribed provides the parties ample amount of time, as a proceeding could be instituted against a judgement passed by a reciprocating territory court within twelve years from the date on which the judgement or decree was passed. In a nutshell, foreign judgements are certainly applicable in India, however, if both the parties to the case are Indians, then it is better if they resort to seek justice from Indian Courts instead of falling under the clutches of Section 13 of the Code of Civil Procedure.

Author: Dev Tejnani Legal Intern at Legal Desire (June 2020)

Student currently pursuing the Five year integrated law degree from the University of Mumbai. Firmly believes that luck is not an important factor, but hardwork is. Keep working hard to achieve what you want.