RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT

In this new Era of globalization, Indian legal system is often

appreciated for the importance it gives to enforcement of foreign
decrees and judgment. Foreign legal materials are now easily
available due to communication and technological development.
Foreign judgments may be recognized based on bilateral or
multilateral treaties or conventions or other International
Instruments. The “recognition” of a foreign judgment occurs when
the court of one country accepts a judicial decision made by the
courts of another “foreign” country, and issues a judgment in
substantially identical terms without rehearing the substance of the
original lawsuit. Recognition of judgment will be denied if the
judgment is substantively incompatible with basic fundamental legal
principles in the recognizing country.
NEED FOR RECOGNIZING FOREIGN JUDGMENT
The judgment of a foreign court is enforced on the principle that
where a foreign court of competent jurisdiction has adjudicated upon
a claim, a legal obligation arises to satisfy that claim in the country
where the judgment needed to be enforced. The rules of private
international law of each state differ in many respects, but by the
comity of nations certain rules are recognized as common to civilized
Jurisdictions. Through part of the judicial system of each state these
common rules have been adopted to adjudicate upon disputes
involving a foreign element and to enforce judgments of foreign
courts, or as a result of international conventions. Such a recognition
is accorded not as an act of courtesy but on consideration of basic
principle of justice, equity and good conscience. An awareness of
foreign law in the parallel jurisdiction would be a useful guideline in
determining our notions of justice and public policy. We are a
Sovereign Nation within our territory but it is not derogation of
sovereignty to take accounts of foreign law.
LIMITATION IN RECOGNIZING AND ENFORCEMENT
There are certain limitations in recognizing and enforcement of
Foreign Judgments under Section 13,14 and 44A of Civil
Procedure Code and Section 41 of Indian Evidence Act that are
as follows:

WHEN FOREIGN JUDGMENT NOT CONCLUSIVE

(SECTION 13)
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;
It is a basic fundamental principle of law that the judgment or order
passed by the court which has no jurisdiction is 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 law of the 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.
R.M.V. VELLACHI ACHI
V.
R.M.A. RAMANATHAN CHETTIAR
it was alleged by the respondent that since he was not a subject of
the foreign country, and that he had not submitted to the jurisdiction
of the Foreign Court (Singapore Court), the decree could not be
executed in India. The Appellant, in defense of this argument, stated
that the Respondent was a partner of a firm which was doing
business in Singapore and had instituted various suits in the
Singapore Courts. Therefore, the Respondent had accepted the
Singapore Courts jurisdiction. The Court held that it was the firm
which had accepted the jurisdiction of the foreign Court and the
Respondent, in an individual capacity, had not accepted the
jurisdiction. Thus, High Court held that the decree against the
Respondent was not executable.
b) Foreign Judgments not on Merits
In order a foreign judgment to operate as Res Judicata, it must have
been given on merits of the case. A judgment is said to have been
given on merits when after taking evidence and after applying his
mind regarding the truth or falsity of case.
The Actual test for deciding whether the judgment has been given on
merits or not is to see whether it was merely passed as a matter of
course, or by way of penalty of any conduct of the defendant, or is
based upon a consideration of the truth or falsity of the plaintiff”s
claim.
GURDAS MANN
V.
MOHINDER SINGH BRAR
the Punjab & Haryana High Court held that an ex-parte judgment
and decree which did not show that the plaintiff had led evidence to
prove his claim before the Court, was not executable under Section
13(b) of the CPC since it was not passed on the merits of the claim.
c) Foreign Judgments against International or Indian Law
A Judgment which is contrary to the basic fundamental rules of
international law or a refusal to recognize the law of India where such
law is applicable is not conclusive. Where a suit instituted in England
on the basis of contract made in India, the English court erroneously
applied English law, thus, the judgment of the court is covered by
this clause as the general principle of Private International Law is
that the rights and liabilities of parties to a contract are governed by
the place where the contract is made (lex loci contractus).
I & G INVESTMENT TRUST
V.
RAJA OF KHALIKOTE
a suit was filed under the English Jurisdiction to avoid the
consequences of the Orissa Money Lenders Act. The Court held that
the judgment was passed on an incorrect view of the international
law. The Court further observed that, although the judgment was
based on the averment in the plaint that the Indian law did not apply,
however, there was no “refusal” to recognize the local laws by the
Court.
d) Foreign Judgments opposed to the principle of Natural Justice
It is the essence of a judgment of court that it must be obtained after
due observance of the judicial procedure i.e., the court rendering the
judgment must observe the minimum requirements of natural
justice. It must be composed of impartial persons, who must act in a
fair and justified manner, without bias, and in good faith, it must
give reasonable notice to the parties to the dispute and each party
should be given equal opportunity of presenting their case. A
judgment which suffers from such infirmities on the part of a judge
will be regarded as a nullity and the trial is “coram non judice”(not
before a judge).
LALJI RAJA & SONS
V.
FIRM HANSRAJ NATHURAM
the Supreme Court held that just because the suit was decreed ex-
parte, although the defendants were served with the summons, does
not mean that the judgment was opposed to natural justice.
e) Foreign judgment obtained by fraud
It is a well settled principle of Private International Law that if foreign
judgments are obtained by fraud, it will not operate as res judicata.
It has been said “Fraud and Justice never Dwell together.
 SATYA
V.
TEJA SINGH
the Supreme Court held that since the plaintiff had misled the foreign
court as to it having jurisdiction over the matter, although it could
not have had the jurisdiction, the judgment and decree was obtained
by fraud and hence inconclusive.
S.P. CHENGALVARAYA NAIDU
V.
JAGANNATH
Supreme Court held that it is well 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.
f) Foreign Judgments founded on breach of Indian Law
When a law in force in India is wrongly construed so as to form the
reasoning behind a judgment delivered by a foreign court, in such
cases the enforceability of the foreign judgment in Indian courts will
be under question.
CHINA SHIPPING DEVELOPMENT CO. LIMITED
V.
LANYARD FOODS LIMITED
wherein the High Court held that a petition for winding up of an
Indian company would be maintainable on the basis of judgment of
foreign Court.
 PRESUMPTION AS TO FOREIGN JUDGMENTS
(SECTION 14)
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 to competent jurisdiction,
unless the contrary appears on the record; but such presumption
may be displaced by proving want of jurisdiction.
Section 14 states the presumption that 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 foreign Court
of competent jurisdiction pronounced the judgment unless the
contrary appears on the record, but by proving want of jurisdiction
may overrule such presumption.
ENFORCEMENT OF FOREIGN JUDGMENTS
A foreign Judgment which is conclusive and does not fall within
section 13 (a) to (f), may be enforced in India in either of the following
ways.
By instituting execution proceedings
A foreign Judgment may be enforced by proceedings in execution in
certain specified cases mentioned in Section 44-A of the CPC.
Execution of decrees passed by Courts in reciprocating
territory
(Section 44A)
(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 execution of any such decree, if it is shown to the satisfaction
of the Court that the decree falls within any of the exceptions
specified in clauses (a) to (f) of section 13.
Explanation I: “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.
Explanation II: “Decree” with reference to a superior Court means
any decree or judgment of such court under which a sum of money
is payable, not being a sum payable in respect of taxes or other
charges of a like nature or in respect of a fine or other penalties, but
shall in no case include an arbitration award, even if such an award
is enforceable as a decree or judgment.
The List of the Reciprocating Territories as per the Provisions of
Section 44 A of the Code of Civil Procedure, 1908
• 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
• Aden.
MOLOJI NAR SINGH RAO
V.
SHANKAR SARAN
The Supreme Court held that a foreign judgment which does not
arise from the order of a superior court of a reciprocating territory
cannot be executed in India. It ruled that a fresh suit will have to be
filed in India on the basis of the foreign judgment.”
Therefore, Under Section 44A of the CPC, a decree or judgment of
any of the Superior Courts of any reciprocating territory are
executable as a decree or judgment passed by the domestic Court.
The judgment, once declared, will be executed in accordance with
section 51 of the Code. Thereafter, the court may order measures
such as attachment and sale of property or attachment without sale,
and in some cases arrest (if needed) in enforcement of a decree. This
is done by the methods discussed below.
By instituting a suit on such foreign judgment
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 such foreign judgment. The general principle
of law is that any decision of a foreign court, tribunal or any other
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
between the same parties. Such a suit must be filed within a period
of 3 years from the date of judgment.
MARINE GEOTECHNICS LLC
V.
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.
However, in both the cases, the decree has to pass the test of Section
13 CPC which specifies certain exceptions under which the foreign
judgment becomes inconclusive and is therefore not executable or
enforceable in India.
 Relevancy of certain judgments in probate, etc. jurisdiction
(Section 41 of Indian Evidence Act)
A final judgment, order or decree of a competent Court, in the
exercise of probate, matrimonial, admiralty or insolvency
jurisdiction, which confers upon or takes away from any person any
legal character, or which declares any person to be entitled to any
such character, or to be entitled to an specific thing, not as against
any specified person but absolutely, is relevant when the existence of
any such legal character, or the title of any such person to any such
thing, is relevant.
Such judgment, order pr decree is conclusive proof-
That any legal character which it confers accrued at the time when
such judgment, order or decree came into operation;
That any legal character, to which it declares any such person to be
entitled, accrued, to that person to be entitled, accrued, to that
person at the time when such judgment, order or decree declares it
to have accrued to that person; that any legal character which it
takes away from any person ceased at the time from which judgment,
order or decree declared that it had ceased or should cease;
And that anything to which it declares any person to be so entitled
was the property of that person at the time from which such
judgment, [order or decree] declares that it had been or should be his
property.
Bindingness of judgment-in-rem
The judgment-in-rem is conclusive proof of matters showing that:
(a) it has conferred legal character, or
(b) it has declared that person has such legal character or
(c) it has declared that such legal character has ceased to exist.
The legal character means a legal status. To say that a person is not
a partner of a firm is not to declare his status or legal character; it is
merely to declare his position with respect to the particular firm.
Under section 41, a judgment-in-rem dealing with legal character of
a person can be pronounced by the courts exercising probate,
matrimonial, admiralty and insolvency jurisdiction.
1. Probate jurisdiction:
Probate jurisdiction means jurisdiction of a court under the Indian
Succession Act, 1925 in respect of testamentary and intestate
matters. By exercising probate jurisdiction, the court can pronounce
the genuineness of will of a deceased person and grant letter of
probate in favour of a person who may act for the deceased in
execution of his will. A judgment by a probate is a judgment-in-rem
by which legal character of a person is granted. The court must also
satisfy its conscience before it passes an order. A judgment of a court
of probate is conclusive proof and is binding on the entire world. The
grant of probate is the decree of a court which no other court can set
aside except for fraud or want of jurisdiction.
2. Matrimonial jurisdiction:
A court having matrimonial jurisdiction can decide matrimonial
causes under various Act. By virtue of this jurisdiction the court can
decide the legal status of a person whether he is married or she is
widow or divorcee. The judgment of a Matrimonial court is judgment-
in-rem and is admissible under Section 41. A decree of nullity and
divorce under Marriage Law has the same effect.
3. Admiralty jurisdiction:
Admiralty jurisdiction is exercised by the High Court under the
Letters Patent. The finding of a court of admiralty is judgment-in-
rem. The admiralty court decides cases arising out of war claims.
4. Insolvency jurisdiction:
A court having insolvency jurisdiction exercises its power under the
Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency
Act, 1920. By exercising insolvency jurisdiction, the court can
determine legal status of a person whether he is insolvent or he is
discharged from insolvency or annulment of his insolvency. The
judgment of the court is judgment-in-rem and binding on all.
Limitation period for Enforcement of Foreign Judgments
As per the provisions of the Code, foreign judgments from
reciprocating territories are enforceable in India in the same manner
as the decrees passed by Indian courts. The Limitation Act, 1963
prescribes the time limit for execution of a foreign decree and for filing
of a suit in the case of judgment passed by foreign court.
• Three years, commencing from the date of the decree or where a
date is fixed for performance; in case of a decree granting a
mandatory injunction; and
• Twelve years for execution of any other decree commencing from
the date when the decree becomes enforceable or where the decree
directs any payment of money or the delivery of any property to be
 made at a certain date, when default in making the payment or
delivery in respect of which execution is sought, takes place.
A judgment obtained from a non-reciprocating territory can be
enforced by filing a new suit in an Indian court for which a limitation
period of 3 years has been specified under the Limitation Act, 1963
commencing from the date of the said judgment passed by foreign
court.