Dr.

Ram Manohar Lohiya National Law University, Lucknow

Final Draft

Project Topic: “Enforcement of Foreign Judgments under C.P.C. in India”

Submitted To:
Mr. Vipul Vinod
Assistant Professor (Law)
Dr. R.M.L.N.L.U., Lucknow

Submitted By:
Deepak Kumar Rav
Enrollment no. 59
4th Semester

Acknowledgement

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During preparation for this project I was immensely helped by all the facilities of Dr. Ram
Manohar Lohiya National Law University.

I would also like to thank my teacher Mr. Vipul Vinod for giving me the opportunity to choose
this topic and for providing me the creative freedom to go upon this project as I like.

Finally, I’d like to thank my friends and batch mates for their valuable suggestions and
assistance.

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 Table of Contents
Introduction....................................................................................................................................4
Enforcement of Foreign Judgments In India?............................................................................5
Execution of Foreign Decrees under S44A..................................................................................6
Judgments of the Supreme Court Concerning Section 13.........................................................9
Foreign Judgment and Res Judicata..........................................................................................11
Doctrine of Merger......................................................................................................................11
Mode of Enforcement of Foreign Judgments............................................................................12
Execution Proceedings.................................................................................................................12
Enforcement of Foreign Awards.................................................................................................13
Conclusion....................................................................................................................................14
Bibliography.................................................................................................................................14

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Introduction
A foreign judgment can be enforced in India in one of two ways:

1. Judgments from Courts in "reciprocating territories" can be enforced directly by filing

before an Indian Court an Execution Decree. A "reciprocating territory" is defined in
explanation 1 to Section 44A of India's Civil Procedure Code as: "Any country or territory
outside India which the Central Government may, by notification in the Official Gazette,
declare as a reciprocating territory." The United Kingdom and Canada are among the list of
countries which has been declared as "reciprocating territories." Presently, the United States
of America is not declared as a "reciprocating territory" by the Government of India.

2. Judgments from "non-reciprocating territories," such as the United States, can be enforced
only by filing a law suit in an Indian Court for a Judgment based on the foreign judgment.
The foreign judgment is considered evidentiary. The time limit to file such a law suit in India
is within three years of the foreign judgment.

A foreign judgment is considered conclusive by an Indian Court if such judgment:

 has been pronounced by a court of competent jurisdiction;
 has been given on the merits of the case;
 is founded on correct view of international law;
 is contained in proceedings that followed principles of natural justice;
 has not been obtained by fraud; and
 does not sustain a claim on a breach of any law in force in India.

Indian courts are overburdened and therefore slow. Enforcing a foreign judgment in India could
take years in some instances, depending upon the complexity of the issues involved in the
dispute between the parties1.
With the advent of globalization and with India poised as a major international and global player
in the world economy, it is apposite to consider the law concerning enforcement of foreign

1
http://madaan.com/enforcingjudgment.html
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judgments in India. This is primarily enshrined in Section 132of the Code of Civil Procedure,
1908, which is a rather slender section; despite its brevity in terms of the statute, it has been
subjected to the judicial scrutiny of various High Courts and the Supreme Court of India, through
a tapestry of significant case law. ” The Code of Civil Procedure, as its name suggests, governs
all aspects of civil procedure. It is therefore somewhat surprising to find this law ensconced in an
otherwise elaborate statute concerning procedural law. The Supreme Court of India has held in
Sardar Maloji Nar Singh Rao v Sankar Saran, 3 that the rules laid down in Section 13 are rules of
substantive law and not merely of procedure.

Enforcement of Foreign Judgments in India?

The Indian Code of Civil Procedure, 1908 (CPC) governs the execution of decrees, whether
foreign or domestic, in India. There are two ways of getting a foreign judgment enforced.
Firstly, by filing an Execution Petition under Section 44A of the CPC (in case the conditions
specified therein are fulfilled) and secondly, by filing a suit upon the foreign judgment/decree.

Under Section 44A of the CPC, a decree of any of the Superior Courts of any reciprocating
territory is executable as a decree passed by the domestic Court. Therefore in case the decree
does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, as
notified by the Central Government in the Official Gazette, the decree is not directly executable
in India.
In case the decree pertains to a country which is not a reciprocating territory then a fresh suit will
have to be filed in India on the basis of such a decree or judgment, which may be construed as a
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“13. When foreign judgment not conclusive—A foreign judgment shall not 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 the
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 is obtained are opposed to natural justice; (e) where it has been obtained by
fraud; (f) Where it sustains a claim founded on breach of any law in force in India.”
3
Sardar Maloji Nar Singh Rao v Sankar Saran AIR 1962 SC 1737
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cause of action for the said suit. In the fresh suit, the said decree will be treated as another piece
of evidence against the defendant.

Under Section 13 of the Code of Civil Procedure, a foreign judgment becomes inconclusive and
consequently unenforceable in the following circumstances:
 where it has not been pronounced by a Court of competent jurisdiction;
 where it has not been given on the merits of the case;
 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;
 where the proceedings in which judgment was obtained are opposed to natural justice;
 where it has been obtained by fraud;
 Where it sustains a claim founded on a breach of any law in force in India4.

Execution of Foreign Decrees under S44A

A Person who has obtained a decree from a court in a foreign country can approach an Indian
court for enforcement of the said decree under the Civil Procedure Code, the Supreme Court has
ruled in November 2000 in M.V.A.L, Quamar v Tsavliris Salvage (International ) Ltd.5that
"Section 44A of the code enables a foreign decree holder to execute a foreign decree in this
country," relying on decision by a New Zealand Supreme Court and an Australian judgment,
Justice Banerjee, writing the judgment for the bench, said a foreign decree holder could invoke
the jurisdiction of an Indian court under Section 44A of the code.
Justice Banerjee said "One can conclude that whereas the domestic law, execution scheme is
available under Sections 37, 38, 39, 41 and 42, Section 44A depicts an altogether different
scheme for enforcement of foreign judgments through Indian Courts." The court said that when a
decree is obtained from an Indian court to enforce in the country two years after it was obtained,
"there exists a mandatory obligation to serve a notice to show cause against the execution."

4
http://madaan.com/enforcingjudgment.html
5
M.V.A.L, Quamar v Tsavliris Salvage (International ) Ltd. AIR 2000 SC 2826
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However, the court said in case of Section 44A, which enabled a foreign decree holder to
approach an Indian court for execution, requirement of show cause notice was not mentioned
even if the decree was over two-years old.

The prime law of India is that where there is an express agreement to, submit to the jurisdiction
of a foreign court, a judgment pronounced by such court binds the parties, and effect will be
given to such a judgment in Indian courts. The governing legislation for judgments pronounced
by foreign courts is the Code of Civil Procedure 1908.
 Section 2(6) of the Code defines a "foreign judgment" to mean any judgment of a foreign
court.
 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 (of India).

In other words, a foreign judgment means ‘adjudication’ by a foreign court on a matter before it.
A judgment given by a foreign court does not cease to be so when, as a consequence of political
change, the territory where the court was situated at the time of the judgment becomes part of
India. Such a judgment, for the purposes of enforcement and execution, will be conclusive, that
is, it will be recognised and will operate as res judicata (also fulfilling the conditions of it) saves
in certain exceptional cases. These are mentioned in section 13 of the Code, which reads as
follows -
 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 -where it has not been pronounced by a
Court of competent jurisdiction;
 where it has not been given on the merits of the case; 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;
 Where the proceedings in which the judgment was contained are opposed to natural
justice;
 where it has been obtained by fraud; and where it sustains a claim founded on a

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 breach of any law in force in India [an example of this would be a foreign judgment
for a gambling debt]
 The foreign court must be competent to try the suit, not only as regards pecuniary
limits of its jurisdiction and the subject-matter of the suit, but also with reference to
its territorial jurisdiction, and the competency of the foreign court is to be judged not
by the territorial law of the foreign state, but by the rules of private international law.

Undoubtedly, the foreign court has jurisdiction to deliver a judgment in rem, which may be
enforced or recognised in an Indian court, provided that the subject matter is within its
jurisdiction. It cannot, however, sit in judgment on, say, immovable property situated outside the
country of its jurisdiction. In other words, as laid down by the Supreme Court of India in one of
its judgments, the courts of a country generally impose a three-fold restriction on the exercise of
their jurisdiction -
 jurisdiction in rem (binding not only the parties but the world at large) by a court over
res outside the jurisdiction will not be exercised, because it will not be recognised by
other courts;
 the court will not deal directly or indirectly with title to immovable property outside
the jurisdiction of the state from which it derives its authority, and
 the court will not assist in the enforcement within its jurisdiction of foreign penal or
revenue laws

The operation of section 13 would be better appreciated by the following illustration: A sues B in
a foreign court. If the suit is dismissed, the decision will operate as a bar to a fresh suit by A in
India on the original cause of action, unless the decision is inoperative by reason of one or more
of the circumstances specified. If a decree is passed in favor of A in the foreign court and A sues
B on the judgment in India, B will be precluded from putting in issue the same matters that were
directly and substantially in issue in the suit in the foreign court, unless the decision is once again
inoperative for the said exceptions.

Though a foreign judgment may be enforced by a suit in India, it must not be assumed that

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Indian courts are bound in all cases to take cognizance of the suit and they may refuse to
entertain it on grounds of expediency.
It is also relevant to consider section 14 of the Code which states - The Court shall presume,
upon production of any document purporting to be a certified copy of foreign judgment, that
such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears
on the record; but such presumption may be displaced by proving want of jurisdiction.

Judgments of the Supreme Court Concerning Section 13

Despite the staccato nature of Section 13, some of the Supreme Court’s finest decisions on
Private International Law have been rendered in the context of this section. A judgment of a
foreign court to be conclusive between the parties, it must be a judgment pronounced by a court
of competent jurisdiction.6 Such a judgment must be by a court, competent both by the law of the
State which has constituted it and in an international sense, it must have directly adjudicated
upon the “matter” which is pleaded as res judicata.7In order to operate as res judicata, a foreign
judgment must have been given on the merits of the case. A judgment is said to have been given
on the merits when, after taking evidence and after applying his mind regarding the truth or
falsity of the plaintiff’s case, the judge decides the case one way or the other. For instance, in
Narsimha Rao v Venkata Lakshmi, 8the Supreme Court observed that if a foreign judgment has
not been given on the merits of the case, the courts in India will not recognise such a judgment.
In International Woollen Mills Limited v Standard Wool (UK) Limited, 9 the Supreme Court has
rendered a well-reasoned decision, 9 and has also given a comprehensive exhaustive analysis,
with reference to the ingredient of Section 13(b), dealing with the “merits of the case”. A
judgment based upon an incorrect view of International Law or a refusal to recognise the law of
India, where such law is applicable, is not conclusive. In other words, a foreign judgment may be
impeached on the ground that it is founded upon an inaccurate view of the law of India or of
International Law. In Narsimha Rao v Venkata Lakshmi, the Supreme Court of India noted that
“where the judgment is founded on a refusal to recognise the law of this country in cases in
which such law is applicable, the judgment will not be recognised by the courts in this country.”
6
Satya vs Teja Singh; (1975) 1 SCC 120
7
Viswanathan v Abdul Wajid AlR 1963 SC 1
8
Narsimha Rao v Venkata Lakshmi (1991) 3 SCC 451
9
International Woollen Mills Limited v Standard Wool (UK) Limited (2001) 5 SCC 265
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A foreign judgment is made conclusive as to any matter, thereby directly adjudicated upon
between the same parties. But it is the essence of a judgment of a court that it must be obtained
after due observance of the judicial process, i.e. the court rendering the judgment must observe
the minimum requirements of natural justice, it must be composed of impartial persons, acting
fairly, without bias, and in good faith, it must give reasonable notice to the parties concerned and
afford each party adequate opportunity of presenting his case. The concept of audi alteram
partem is deemed to be of universal, not merely of domestic application.10

In a few leading decisions, it is heartening to observe the Supreme Court having been vigilant to
detect an element of fraud in some of the judgments rendered by foreign courts. It is a well-
established principle of Private International Law that if a foreign judgment is obtained by fraud,
it will not operate as res judicata.11 In Chengalvaraya Naidu v Jagannath,12the Supreme Court
has categorically ruled as follows: “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 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.”

In Satya v Teja Singh,13 a husband obtained a decree of divorce against his wife from the Nevada
Court in the USA averring that he was domiciled in America. The Nevada Court derived
jurisdiction to entertain and hear the divorce petition on the basis of averment that the applicant
was a bona fide resident of and domiciled in Nevada. Since the statement was not true and as the
applicant never lived in Nevada, the Supreme Court of India ruled that the Nevada Court had no
jurisdiction to pass a decree of divorce and it was a nullity. In the incisive words of the court: “It
is therefore wrong to think that judgments in rem are inviolable. Fraud in any case bearing on
jurisdictional facts vitiates all juridical acts whether in rem or in personam.”
Where a foreign judgment is founded on a breach of any law in force in India, it cannot be

10
Sankaran v Lakshmi, (1975) 3 SCC 351
11
Id
12
Chengalvaraya Naidu v Jagannath (1994) 1 SCC 1
13
Satya v Teja Singh (1975) 1 SCC 120
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enforced in India. Similarly, a decree for divorce passed by a foreign court cannot be approved or
recognised by an Indian court, if under the Indian law the marriage is indissoluble. The pithy
observations of the Supreme Court in Satya v Teja Singh, 14with regard to public policy are
indicative of the caution that the court has rightly exercised while considering the recognition
and enforcement of foreign judgments.

Foreign Judgment and Res Judicata

The rule of conclusiveness of a foreign judgment as enacted in Section 13 of the Code of Civil
Procedure, 1908, is somewhat different in its application from the rule of res judicata. In the
leading case of Viswanathan v Abdul Wajid,15 Justice J.C. Shah explained the difference in the
following manner: “The rule of conclusiveness of a foreign judgment as enacted in Section 13 is
somewhat different in its operation from the rule of res judicata. Undoubtedly, both the rules are
founded upon the principle of sanctity of judgments competently rendered. But the rule of res
judicata applies to all matters in issue in a former suit which have been heard and finally decided
between the parties, and includes matters which might and ought to have been made[a] ground of
attack or defense in the former suit. The rule of conclusiveness of foreign judgments applies only
to matters directly adjudicated upon. Manifestly, therefore, every issue heard and finally decided
in a foreign court is not conclusive between the parties. What is conclusive is the judgment……”

Doctrine of Merger
There has been considerable debate concerning the relevance of the legal doctrine of merger in
the context of enforcement of foreign judgments. Justice J.R. Mudholkar in Badat and Company
v East India Trading Company16sets out the following definitive propositions in the majority
decision of the court:

“No doubt, the English doctrine of merger has been consistently held in England not to apply to
a foreign judgment with the result that despite the fact that a plaintiff has obtained a foreign

14
Id
15
Satya v Teja Singh (1975) 1 SCC 120
16
Viswanathan v Abdul Wajid, AIR 1963 SC 1
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judgment he may nevertheless sue in an English Court upon the original cause of action, instead
[of] upon the judgment. When he sues upon the original cause of action, no doubt, the court
within whose jurisdiction the cause of action arose would be entitled to entertain the suit. But, if
on the other hand, he chooses to sue upon the judgment, he cannot find jurisdiction for the
institution of the suit on the basis of the original cause of action because once he chooses to rest
himself on the judgment obtained by him in a foreign court, the original cause of action will have
no relevance whatsoever even though it may not have merged in that judgment.”
This proposition of law sets out one of the cardinal principles in Private International Law in the
Indian context with regard to the legal basis on which the enforcement of the foreign judgment is
perceived by the courts in India. The difference enunciated above by the Supreme Court is
subtle, yet definitive.

Mode of Enforcement of Foreign Judgments

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 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 by a country, unless such decision is embodied in a decree of a court of that country.
A suit on a foreign judgment 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 of Civil Procedure, 1908. The case of M.V.A.L. Quamar v
Tsavliris Salvage (International) Ltd. and others provides a fascinating insight concerning the
interpretation of Section 44A of the Code of Civil Procedure, 1908 and contains an excellent
overview of this very significant aspect of enforcement of foreign judgments.

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Enforcement of Foreign Awards
India’s global exposure in international arbitration is well-known. Ever since the enactment of
the Arbitration and Conciliation Act, 1996, there has been a surge in international commercial
arbitration. It is noteworthy that the Arbitration and Conciliation Act, 1996, is based on what is
popularly known as the UNCITRAL model. [The United Nations Commission on International
Trade Law (UNCITRAL) adopted the Model Law on International Commercial Arbitration in
1985]. With foreign direct investment flowing into India surely and steadily, international
commercial arbitration with an India-centric focus is gaining momentum. In this context, the
question of the enforcement of foreign awards has formed the subject of intense judicial debate.
It is interesting to observe that the Legislature in its wisdom has consciously chosen to statutorily
incorporate international covenants into domestic law. These are contained in Part II of the
Arbitration and Conciliation Act, 1996 and include Chapter I, being the New York Convention
Awards, and Chapter II, being the Geneva Convention Awards.

A leading case in point concerning foreign awards and their execution is Fuerst Day Lawson Ltd
v Jindal Exports Limited.17 The Supreme Court of India has carefully analysed the difference
between the Arbitration Act, 1940 and has compared it with the Arbitration and Conciliation
Act, 1996. A few important extracts from this judgment are quoted below:
“Prior to the enforcement of the Act, the Law of Arbitration in this country was substantially
contained in three enactments namely (1) The Arbitration Act, 1940, (2) The Arbitration
(Protocol and Convention) Act, 1937 and (3) The Foreign Award (Recognition and Enforcement)
Act, 1961. A party holding a foreign award was required to take recourse to these enactments.
Preamble of the Act makes it abundantly clear that it aims at to consolidate and amend Indian
laws relating to domestic arbitration, international commercial arbitration and enforcement of
foreign arbitral awards. The object of the Act is to minimize supervisory role of court and to give
speedy justice. In this view, the stage of approaching court for making award a rule of court as
required in Arbitration Act, 1940 is dispensed with in the present Act. If the argument of the
respondent is accepted, one of the objects of the Act will be frustrated and defeated. Under the
old Act, after making award and prior to execution, there was a procedure for filing and making
an award a rule of court i.e. a decree. Since the object of the Act is to provide speedy and

17
(2011) 8 SCC 333
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alternative solution of the dispute, the same procedure cannot be insisted under the new Act
when it is advisedly eliminated.”
“As per Section 49, if the Court is satisfied that a foreign award is enforceable under this
Chapter, the award shall be deemed to be a decree of that court and that court has to proceed
further to execute the foreign award as a decree of that court. If the argument advanced on behalf
of the respondent is accepted, the very purpose of the Act in regard to speedy and effective
execution of foreign award will be defeated.”

Conclusion

The Indian courts have developed a reasoned, cautious and a sophisticated approach concerning
the enforcement of foreign judgments and the enforcement of foreign awards. This necessarily
augurs well for the growth and development of legal jurisprudence in India in the field of
“conflict of laws”.
Looking into the evidence led and documents proved before it, as per its rules. It is only if this is
done that the decree can be said to be on merits.

Bibliography
Primary Sources:
 M.P. Jain, The Code of Civil Procedure, Lexis Nexis, 3rd Edition 2011.

 C.K. Takwani, Civil Procedure Code, Eastern Book Company, 2007.

Secondary Sources:
 Manupatra, http://www.manupatrafast.in/
 SCCOnline, https://www.scconline.co.in/

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