INTRODUCTION

Private International law is simply known as conflict between laws, thus important legal
issues arising under private international law, including the recognition and enforcement of
foreign judgments and foreign awards have been judicially considered by the Supreme Court
of India. Foreign Judgment is a judgment of a foreign Court. A foreign court, under section
2(5)1 of Code of Civil Procedure, means a court situated outside India and not established or
continued by the authority of the Central Government. The Supreme Court of India has
pronounced many significant judgments in the field of private international law including
recognition and enforcement of foreign judgments. The project also elucidates the judgments
given by the courts in foreign countries and the scope and object of section 13 of Code of
Civil Procedure.

MEANING OF FOREIGN JUDGMENTS

A foreign judgment is defined under section 2 (6) of the Code of civil Procedure as a
judgment of a foreign court. In other words, a foreign judgment means adjudication by a
foreign court upon a matter before it. Thus judgments delivered by courts in England, France,
Germany, USA, etc. are foreign judgments.

PRINCIPLE OF TERRITORIALITY

The principle of territoriality generally limits the power of a state of judicial enforcement of
actions to be taken within its territory. Consequently, when a judgment is to be enforced out
of property in another state, or requires some act to be done in that other state, the judgment
must be brought to the judicial tribunals of the latter state for implementation. This allows the
judicial tribunal of the enforcing state to examine the judgment to determine whether it
should be recognized and enforced. This approach appears to be consistent with a territorial
approach both to initial copyright ownership and transfers of ownership, this was discussed in
Itar-Tass Russian News Agency v. Russian Kurier, Inc2 i.e., interests of parties in property
are determined by the law of the state with “the most significant relationship” to the property
and the parties.

1
The Code of Civil Procedure, 1908(Act No. 5 of 1908)
2
Private International Law And Intellectual Property Rights, A Common Law Overview, Professor Graeme
Austin, Faculty Of Law University Of Auckland (New Zealand)
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS

The recognition of a foreign judgment occurs when the court of one country or jurisdiction
accepts a judicial decision made by the courts of another foreign country or jurisdiction, and
issues a judgment in substantially identical terms without rehearing the substance of the
original lawsuit. Recognition means treating the claim as having been determined in favour of
one of the litigating parties. This is an acknowledgment of foreign competence and of the
settling of a dispute, known as res judicata. Enforcement is the implementation of the
judgment.

GENERAL PRINCIPLES FOR RECOGNITION AND ENFORCEMENT

Conditions for recognizing and enforcing a judgment of a court of another country may be
established by treaty or follow general principles of International Law. Under those
principles, a court of one state will enforce a foreign judgment if,

i. The judgment is final between the parties;

ii. The court that granted the judgment was competent to do so and had jurisdiction over
the parties;
iii. Regular proceedings were followed that allowed the losing party a chance to be heard;
iv. No Fraud was worked upon the first court; and
v. Enforcement will not violate the public policy of the enforcing state.

EXCEPTIONS ON RECOGNITION AND ENFORCEMENT

A foreign judgment may operate as res judicata except in the six cases specified in the section
133 and subject to the other conditions mentioned in Sec. 11 of Code of Civil Procedure.

i. Where it has not been pronounced by a Court of competent jurisdiction;

ii. Where it has not been given on the merits of the case;
iii. Where it appears on the face of the proceedings to be founded on an incorrect view of
the international law or a refusal to recognise the law of India in cases in which such
law is applicable;

3
The Code of Civil Procedure, 1908(Act No. 5 of 1908)
 iv. Where the proceedings in which the judgment is obtained are opposed to natural
justice;
v. Where it has been obtained by fraud;
vi. Where it sustains a claim founded on breach of any law in force in India.”

A foreign judgment which is conclusive under Section 13 of the Code of Civil

Procedure, 1908, can be enforced in India:

 By instituting a suit on such judgment; or

 By instituting execution proceedings.

A suit on a foreign judgment must be filed within a period of three years from the date
of the judgment.

Also, Section 44A of the Code of Civil Procedure, 1908 sets out provisions
concerning the execution of decrees passed by Courts in a reciprocating territory.

Alcon Electronics Private Limited v. Celem SA and another4, in which the Supreme
Court of India has ruled that the Order of the English Court, which was being enforced in
India is a judgment on the merits of the case. In the words of the Supreme Court of India:
“The principles of comity of nation demand us to respect the order of English Court. It has
also ruled that the Order passed by the English Court is executable in India under Section
44A Code of Civil Procedure. In this decision, the Supreme Court of India has, relied on the
ratio decidendi of this Court in International Woollen Mills v. Standard Wool (UK) Ltd.5

In the case of Middle East Bank Ltd. V. Rajendra Singh Sethia6, an exparte decree
was given under summary procedure under rule 14 of the Supreme Court of England. No
defence was filed. The plaintiff’s evidence was not considered. Court held in the case that, it
is not conclusive foreign decree in the context of section 13. It was held not to be executable.

COMPETENCY OF COURT ON FOREIGN JUDGMENTS

4
2017 2 SCC 253
5
25 April, 2001, SCC 265
6
AIR 1991 Cal 335
 It is a fundamental principle of law that the judgment or order passed by the court,
which has no jurisdiction, is null and void. Thus, a judgment of a foreign court to be
conclusive between the parties must be a judgment pronounced by a court of competent
jurisdiction. Such judgment must be by a court competent both by the law of state, which has
constituted it and in an international sense and it must have directly adjudicated upon the
"matter" which is pleaded as res judicata.

In Gurdayal Sigh v. Rajah of Faridkot7, A suit was filed against B in the court of the
Native State of Faridkot, claiming Rs. 60,000 alleged to have been misappropriated by B,
while he was in A's service at Faridkot. B did not appear at the hearing, and an ex parte
decree was passed against him. B was a native of another Native State Jhind. In 1869, he left
Jhind and went to Faridkot to take up service under A. But in 1874, he left A's service and
returned to Jhind. The present suit was filed against him in 1879; when he neither resided at
Faridkot nor was he domiciled there. On these facts, on general principles of International
Law, the Faridkot court had no jurisdiction to entertain a suit against B based on a mere
personal claim against him. The decree passed by the Faridkot court in these circumstances
was an absolute nullity. When A sued B in a court in British India, against B on the judgment
of the Faridkot court, the suit was dismissed on the ground that Faridkot court has no
jurisdiction to entertain the suit. The mere fact that the embezzlement took place at Faridkot,
was not sufficient to give jurisdiction to the Faridkot court would have had complete
jurisdiction to entertain the suit and to pass a decree against him.

In the case of Mallappa Yellapppa v. Raghvendra Sham Rao8 listed six categories in which
the foreign court may be said to have the jurisdiction:

a) If the defendant is subject of a foreign country;

b) If the defendant is a resident of a foreign country when the action has begun against him.

c) If the defendant is served with the process while temporarily present within the foreign
country;

d) If the defendant in his character as plaintiff in the foreign action has selected the forum
where the judgment was given against him;

7
(1895) ILR 22 Cal 222
8
IR 1938 Bom. 173
e) If the defendant has voluntarily appeared before the foreign court; and

f) If the defendant has contacted to submit to the jurisdiction of the foreign court.

The Madras High Court in the Ramanthan Chettiar v. Kalimutu Pillai9, lays down
the circumstances when the foreign courts would have jurisdiction under this Section. The
circumstances mentioned are as follow:

a. Where the person is a subject of the foreign country in which the judgement has been
obtained against him on prior occasion.

b. Where he is a resident in foreign country when the action has commenced.

c. Where a person selects the foreign court as a forum as taking action in the capacity of a
plaintiff, in which forum he is sued later.

d. Where the party own summons voluntarily appears.

e. Where by an agreement a person has contracted to submit himself to the forum in which
the judgment is obtained.

FOREIGN JUDGMENT AGAINST INTERNATIONAL OR INDIAN LAW

A judgment based upon an incorrect view of international law or a refusal to

recognize the law of India where such law is applicable is not conclusive. But the mistake
must be apparent on the face of the proceedings. Thus, where in a suit instituted in England
on the basis of a contract made in India, the English court erroneously applied English law,
the judgment of the court is covered by this clause in as much as it is a general principle of
Private International Law that the rights and liabilities of the parties to a contract are
governed by the place where the contract is made.

In Satya v. Teja Singh10, where a husband obtained a decree of divorce against his
wife from an American Court averring that he was domiciled in America. Observing that the
husband was not a bonafide resident or domicile of America, and he had played fraud on a

9
18 Ind Cas 189
10
1975 AIR 105, 1975 SCR (2) 97
foreign court falsely representing to it incorrect jurisdictional fact, the Supreme Court held
that the decree was without jurisdiction and a nullity.

In Narsimha Rao v. Venkata Kakshm11i, A husband obtained a decree of divorce

against his wife B again from an American High Court on the ground that he was a resident
of America. Then he remarried C. B filed a criminal complaint against A and C for bigamy.
A and C filed an application for discharge. Dismissing the application, the Supreme Court
held that the decree of dissolution of Marriage was without jurisdiction in as much as neither
the marriage was solemnized nor the parties last resided together in America. It was,
therefore, unenforceable in India.

In Chengalvaraya Naidu v. Jagannath12, the Supreme Court stated: " 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 the 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."

PRESUMPTION UNDER SECTION 14 OF CODE OF CIVIL PROCEDURE

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 judgment, that such judgment
was pronounced by a court of competent jurisdiction, unless the contrary appears on the
record, or is proved.

In Narsimha Rao v. Venkata Lakshmi13, the Supreme Court held that mere
production of a Photostat copy of a decree of a foreign court is not sufficient. It is required to
be certified by a representative of the Central Government in America.

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:

11
1991 SCR (2) 821, 1991 SCC (3) 451
12
1994 AIR 853, 1994 SCC (1) 1
13
1991 SCR (2) 821, 1991 SCC (3) 451
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 mater 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.

In case of Algemene Bank, Nederland N.V. v. Satish Dayal Choksi,14 a Hong Kong
court gave a decision not on the points at controversy between the parties, but given exparte
on the basis of plaintiff’s pleading and documents tendered by the plaintiff without going into
the controversy between the parties, such judgment was held not a judgment on merits of the
case; therefore the court refused to grant leave under order XXI, rule 22 for the purpose of
executing decree in India.

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.

METHODS OF ENFORCEMENT

The Court may order execution of a decree:

i. By delivery of any property specifically decreed;

14
1991 72 Comp Cas 501 Bom
 ii. By attachment and sale or by sale without attachment of any property;
iii. By arrest and detention in prison;
iv. By appointing a receiver; or
v. In such other manner as the nature of the relief granted may require.
This may also include a Garnishee Order, subject to certain conditions
being met

Further, the executing Court may direct the Judgment debtor to deposit the
decretal amount in court and subsequently direct remittance to the Decree Holder.

ENFORCEMENT OF FOREIGN ARBITRATION AWARDS

India's Arbitration and Conciliation Act, 1996 provides a statutory framework for the
enforcement of foreign arbitral awards given in countries which are signatories to either the
1927 Convention on the Execution of Foreign Arbitral Awards (Geneva Convention) or the
1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New
York Convention).

Under Section 44 of the Indian Arbitration and Conciliation Act, 1996, a

foreign arbitration a foreign award by definition means an award passed in such territory as
the Central Government by notification may declare to be a territory to which the New York
Convention applies. Hence, even if a country is a signatory to the New York Convention, it
does not ipso facto mean that an award passed in such country would be enforceable in India.
There has to be further notification by the Central Government declaring that country to be a
territory to which the New York Convention applies.

In Bhatia International v. Bulk Trading15, the Supreme Court held that an arbitration
award not made in a convention country will not be considered a foreign award and, as such,
a separate action will have to be filed on the basis of the award.

ENFORCEABLE AWARDS

There are several requirements for a foreign arbitral award to be enforceable

under the Arbitration and Conciliation Act.

(i) Commercial transaction,

15
AIR 2002 SC 1432
 (ii) Written agreement,

(iii) Agreement must be valid, and

(iv) Award must be unambiguous.

ENFORCEMENT AND EXECUTION

The party seeking enforcement of a foreign award under the provisions of the Act
must make an application to the court of competent jurisdiction with the following
documents:

(i) The original/duly authenticated copy of the award;

(ii) The original/duly authenticated copy of the agreement, and
(iii) Such evidence as may be necessary to prove that the award is a foreign award.

FINALITY OF THE FOREIGN JUDGMENT

The foreign judgment to be enforced by the Indian courts needs to be final and
conclusive in it. It should operate as res judicata where it has been delivered.16
CONCLUSION
Hence we can conclude that a judgment of a foreign Court creates estoppel or res
judicata between the same parties, provided such judgment is not subject to attack under any
of the clauses (a) to (f) of Section 13 of the Code. If any claim is made by any party and
subsequently abandoned at the trial of a suit and if the decree in that suit necessarily implies
that claim has not met with acceptance at the hands of the court, then the court must be
deemed to have directly adjudicated against it. Almost the grounds applicable to refuse the
foreign judgements are same everywhere. It is the interpretation of those grounds which
create these problems for example the jurisdiction requirement of the Indian Courts. Thus,
harmonising or universalising the law relating to foreign judgement will to a great extent
reduce the anomalies of the issue resulting in recognition and enforcement of foreign
judgement more often.

16
Magan Bhai Chotu Bhai v. Mani Ben AIR 1985 Guj. 187
REFERENCES:
WEB SOURCES:
 https://shodhganga.inflibnet.ac.in/bitstream/10603/13638/15/15_chapter%208.pdf
 https://iclg.com/firms/csl-chambers
 http://www.maheshwariandco.com/pdf/Articles/enforceability_of_foreign_judgments
_and_foreign_awards.pdf
 http://www.chadha-co.com/assets/GTDT-Enforcement-of-Foreign%20Judgments-
2016-1dd30400359d606ef0db640f663fc01c.pdf
 https://en.wikipedia.org/wiki/Enforcement_of_foreign_judgments
 https://www.thefreedictionary.com/Enforcement+of+foreign+judgments

BOOKS

 International Enforcement of Foreign Judgments, By B International Business Law

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