INTRODUCTION AND BARE ACT

1. What effect can be given to foreign judgments? For eg. P has a money decree
from court in country X against D. P finds out that D has a lot of assets in India.
Can P use X’s money decree to ask Indian courts to make D give him money?
2. Today most Commonwealth countries allow recognition and enforcement of
foreign judgments. On the other hand, the position is different in Continental
countries. They place emphasis on reciprocity, and different Continental countries
have different rules on reciprocity.

The Indian Code of Civil Procedure, 1908 (CPC) lays down the procedure for
enforcement of foreign judgments and decrees in India. The basic principle which is
followed while enforcing a foreign judgment or decree in India is to ensure that the
judgment or decree is a conclusive one, passed on the merits of the case and by a
superior court having competent jurisdiction.
What is a foreign judgment or a foreign decree?
à A foreign judgment is defined under section 2 (6) of the CPC as a judgment of a
foreign court. A foreign court, under section 2(5) of CPC, means a court situated
outside India and not established or continued by the authority of the Central
Government.
à A foreign decree is also defined in Explanation II to section 44A of the CPC as,
"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 penalty, but shall
in no case include an arbitral award, even if such an award is enforceable as a decree
or judgment.

Section 13 - When foreign judgment not conclusive

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;

(b) where it has not been given on the me rits 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 of1[India] in cases in
which such law is applicable;
 (d) where the proceedings in which the judgment was obtained are opposed to
natural justice;

(e) where it has been obtained by fraud ;

(f) where it sustains a claim founded on a breach of any law in force in 1[India].

___________________

1. Substituted by Act 2 of 1951, section 3, for "the States" (w.e.f. 1-4-1951).

Section 13 - When foreign judgment not conclusive

Comments

Not founded on breach of law in force in India.—A foreign judgment which sustains a claim
founded on a breach of any law in force in India cannot be a conclusive judgment and is not
enforceable. Where before institution of a suit, sanction or permission of the Central
Government of India or any other public authority is necessary, the foreign judgment can be
executable only after such permission has been sought and obtained before execution
proceeding starts on such judgment.

Section 14 - Presumption as to foreign judgments

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; but such presumption may be displaced by proving
want of jurisdiction.

Section 44A - Execution of decrees passed by Courts in reciprocating

territory

1
[44A. Execution of decrees passed by Courts in reciprocating territory

(1) Where a certified copy of a decree of any of the superior Courts

of 2 [***] any reciprocating territory has been filed in a District Court, the
decree may be executed in 3 [ 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.

4
[Explanation 1.--"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 2.--"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 penalty, but shall in no case include
an arbitration award, even if such an award is enforceable as a decree or
judgment]].

___________________

1. Inserted by Act 8 of 1937, section 2.

2. The words "the united Kingdom or" omitted by Act 71 of 1952, section 2.

3. Substituted by Act 2 of 1951, section 3, for "the States" (w.e.f. 1-4-1951).

4. Substituted by Act 71 of 1952, section 2, for Explanations 1 to 3.

1. Amendments.

Section 44-A was enacted by Section 2, Code of Civil Procedure

Amendment Act (Act VIII of 1933). It was provided that where a certified
copy of the superior Courts of any reciprocating territory has been filed in
a District Court, the decree may be executed in the State as if it had been
passed by the District Court (Epoh, Indian Overseas Bank v. S.M.
Mohamed Musthaba Sahib; Lakhpat Rai Sharma v. Atama Singh).6 Initially
this section was meant to reciprocate the policy contained in the Foreign
Judgments (Reciprocal Enforcement) Act, 1933 and was a part of
arrangement under which decrees of Indian civil Courts should be
executable in the United Kingdom and decrees of Courts of United
Kingdom and its other dominions should be executable in India. However
fundamental constitutional changes had taken place in India and upon the
enactment of the Constitution of India she was proclaimed a sovereign
democratic republic on and from 26th January, 1950. It was, therefore,
necessary to amend
Page 283

Section 44-A, and by the Code of Civil Procedure (Amendment) Act, 1952
the definition of "reciprocating territory" in Section 44-A was enlarged to
cover any country or territory outside India which the Central
Government, may by notification in the official gazette, declare to be a
reciprocating country, so that now the Code puts all countries or territories
outside India on an equal footing (Jugul Kishore and Anr v. Gobardhan
Lal).7

2. Scope.

Section 44A is to be considered as one of the basic elements of domestic

law visa-vis foreign Judgments that this section gives a new cause of
action irrespective of its original character and that it is not a common law
right (Harshadrai O. Mody v. Bank of India).8 This section embodies and is
also exhaustive of the law in regard to the direct enforcement of
Judgments of superior Courts in foreign countries situate in reciprocating
territories. Under the rules of International Law, the law of limitation of
this country alone would apply. It is a fundamental rule of Interpretation
that due meaning must be given to the language employed in a statute for
purpose of ascertaining its scope (Uthamram v. K.M. Abdul Kasim
Co.).9 The words of the section are comprehensive enough to treat the
decree itself as a decree of a Court in the State, and they need not be
confined so as merely to confer on the Court the powers which it would
exercise in executing its own decree. A foreign decree could not be filed in
any 'and every Court but that it could only be filed in the Court where
execution was actually contemplated, which is only in a district Court in its
exercise of its original jurisdiction. A limited legal fiction is created under
this provision which is to treat the Judgment and decree of the superior
Court as equivalent to those of District Courts for the purposes of
execution in India (Harshadrai O. Mody v. Bank of India).10 The

Page 284

true meaning of the words "as if" as used in Sub-section (1) of Section 44-
A is that the decree in favour of the Plaintiffs must be treated as having
been passed by this Court and consequently it must he held to have been
passed by a Court of competent jurisdiction (Morlays (B'Ham) v. Roshanlal
Ramsahai).11

The decree executable under this section has to be a decree 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 penalty or a
sum payable under an award made in an arbitral proceeding. In a sense
such a decree should be a pure and simple money decree by a Civil Court
(Radhamani India Ltd. v. Imperial Garments Ltd).12 It is therefore clear
that any and every decree passed by a superior Court of a reciprocating
territory cannot be executed through a competent District Court in India.

The decree holder along with the execution petition has to file a certified
copy of a decree of any of the superior Courts of any reciprocating
territory and a certificate from such superior Court stating the extent, if
any to which the decree had been satisfied or adjusted were produced in a
District Court in India, then the decree might be executed in India as if it
had been passed by the District Court (Epoh, Indian Overseas Bank. v.
S.M. Mohamed Musthaba Sahib).13 Debts Recovery Tribunal does not
qualify to be a district Court therefore cannot exercise the power under
this Section.

The purpose of the certificate has been specifically mentioned in Section

44A of the Code of Civil Procedure. It will be a conclusive proof of the
extent of satisfaction or adjustment of the decree. It is therefore clear that
the certificate in any form, issued by the Court who passed the decree, will
be a certificate for the purpose of Section 44A of the Code of Civil
Procedure. When the decree-holder obtains an information slip from the
Court which passed the decree to show that the decree was not put into
execution, there is no reason to say that such information slip will not be a
sufficient certificate for the purpose of Section 44A of the Code of Civil
Procedure; for a decree of the nature mentioned in Section 44A of the
Code of Civil Procedure can be put into execution either in the superior
Court (of the reciprocating territory) which passed the decree, or in a
competent District Court in India (Radhamani India Limited v. Imperial
Garments Limited).14

An application made under Section 44A of the Code of Civil Procedure

should be dealt with by the Court, and not by one of its officers; and it
should be dealt with upon notice to the Judgment-debtor, (Radhamani
India Ltd. v. Imperial Garments Ltd.)15 and the matter is decided by the
Court after hearing his objections. It is open to a Judgment-debtor in an
application made under Section 44A of the Code, to put forward his
objections at any stage of the proceedings. And when such objections are
brought to the notice of the Court, the Court is bound to adjudicate upon it
(Indian and General Investment Trust Ltd. v. Sri Ramchandra Mardaraja
Deo, Raja of Khalikote).16 The objections under section 13 Code of Civil
Procedure are also available as defence. Thus, in that sense, Section 44A
permits going behind a decree (Harshadrai O. Mody v. Bank of India).17

It may be noted that when foreign decrees are put in execution the
procedure does not contemplate two separate proceedings, one for
deciding the enforceability of the foreign decree and the other for its
execution (Euro-Asia Chartering Corpn. (P.) Ltd. v. Fortune International
Ltd.).18

It is not necessary that before filing a decree in a competent District Court

in India, the decree-holder is required to put it into execution in the Court
which passed it (Radhamani India Ltd. v. Imperial Garments Ltd.).19 The
relevant date for determining whether the decree was that of a foreign
 Court was not the date of filing the execution application but the date on
which the Court was called upon to pass an order for execution (Jugul
Kishore .v. Gobardhan Lal).20

This section is applicable for the execution of a decree in personam

obtained from an Admiralty Court in Britain but since Section 44-A is not a
self-contained Code for execution of a decree, the same is not exhaustive
and the same, as a matter of fact does not displace the common law and
it has to be read along with the well settled principles of common law in
matters relating to execution of decree for a sum of money (M.V. Al
Quamar v. Tsavliris Salvage (International) Ltd.).21

Where an application is moved for execution under Section 44A of the

Code, and the execution of decree hits the provisions of the Foreign
Exchange Regulation Act, the leave of Reserve Bank of India as also that
of the Central Government is necessary (Algemene Bank Netherland v.
Satish D. Choksi).22 The jurisdiction of District Court in this country to
execute a foreign Judgment arises from the date of filing of a certified
copy of foreign Judgment or decree. It is only thereafter and not before,
that the procedural law as 'lex fori' will be attracted to execution. As such
the Indian Limitation Act and other procedural law can apply to such
execution only after filing a certified copy of the foreign Judgment or
decree (Sheikh Ali v. Sheikh Mohd.).23

à All the grounds under Section 13 are applicable to a Section 44A analysis
PARAS DIWAN COMMENTARY

Foreign judgments are recognized in India under Section 13 of the CPC. Courts in
India justify foreign judgments’ recognition either on the basis of the doctrine of
comity or on the argument that the foreign court has already decided what the
defendant’s obligations are, it is the local court’s duty to enforce that determination.
However, PD says there is no reason to delve into theoretical justifications for foreign
recognition because the CPC plainly identifies when it can be recognized. Confine
yourself to the statute.

GENERAL CASES

1. Satya v. Teja

Facts
Satya married Teja in July, 1955 in Punjab as per Hindu rites and ceremonies. In
1959, Teja left for the US for higher studies in forestry at New York University and
Utah University for his Doctorate. In 1965, Satya filed a maintenance application
under Section 488 of the Code of Criminal Procedure. Teja appeared with a decree of
divorce granted by the State of Nevada, US in 1964 that Satya ceased to be his wife
and therefore, he contended that no maintenance was required to be paid. From the
Judicial Magistrate First Class, it went to the High Court of Punjab & Haryana and
lastly, an appeal was preferred before the Supreme Court.
Held

a) The Nevada Divorce Decree was not recognised and enforced in India. The
ground was competent jurisdiction of courts and fraud as per Sections 13(a) and
Section 13(e) of the 1908 Code.
b) There was fraud with respect to the jurisdictional fact. The jurisdictional facts
given by Teja were incorrect. The Nevada court assumed and exercised
jurisdiction to pass the divorce decree on the basis that the Respondent was a bona
fide resident of and domiciled in Nevada. Domicile being a jurisdictional fact was
open to attack on the ground that Respondent was not bona fide resident of
Nevada, much less was he domiciled in Nevada.
c) SC observed that prior to institution of the divorce proceedings the Respondent
might have stayed, but never lived in Nevada. Teja made a false representation to
the Nevada Court that he was a bona fide resident of Nevada. Having secured the
divorce decree, he left Nevada almost immediately thereafter rendering it false
that he had the ‘intent to make the State of Nevada his home for an indefinite
period of time.’
d) Importantly, from 1960-64, Teja stayed in Utah and since 1965, he lived in
Canada. Teja only went to Nevada as a bird of passage, resorted to the court there
solely to found jurisdiction and procured a decree of divorce on a
misrepresentation that he was domiciled in Nevada.
e) SC further observed that Teja only went to Nevada for forum hunting, found a
convenient jurisdiction which would easily purvey a divorce to him and left it
even before the ink on his domicilary assertion was dry. Therefore, the decree of
Nevada lacked jurisdiction.

In sum, the court said residence does not mean a temporary residence fro the purpose
of obtaining a divorce but habitual residence or residence which is intended to be
permanent for future as well.

2. Y. Narasimha Rao v. Y Venkata Lakshmi

Facts
Lakshmi and Rao married at Tirupati in 1975 as per Hindu rites and traditions. They
separated in July 1978 and Rao filed a divorce petition in St. Louis County, Missouri,
USA. In 1980, the Circuit court granted a decree of dissolution of marriage since the
marriage was irretrievably broken. Thereafter, Rao married another woman and
Lakshmi filed a complaint for the offence of bigamy. Rao and the second wife filed
an application for the discharge of charges based on the divorce decree. The
Magistrate discharged him of all charges. Lakshmi preferred an appeal and HC set
aside the Magistrate’s decision and thereafter, Rao preferred an appeal to the Supreme
Court. The HC held that the Photostat copy of the divorce was not admissible as
evidence.
PART A: RULING ON FACTS
Held

a) PrIL in India is scattered. There are different personal laws and no uniform rule
can be laid down for all citizens. The Indian courts have followed English PrIL in
personal matters – which time and again has been “regretted”.
b) The law in personal affairs, as opposed to commercial and civil wrongs, tends to
be influenced heavily by social, moral, and religious considerations as well as by
public policy. That is why in all jurisdictions the procedural and substantive rules
applied to disputes in this area vary.
c) Under the provisions of the Hindu Marriage Act, 1955, only the District Court
within the local limits of whose civil jurisdiction the marriage was solemnized
would have the jurisdiction to entertain the divorce petition.
d) Second, irretrievable breakdown of marriage was not one of the grounds
recognised by the 1955 Act. The SCobserved that since with regard to the
jurisdiction of the forum as well as on the ground on which it is passed under the
foreign decree was not in accordance with the Act under which the parties were
married, and that the Respondent had not consented to the jurisdiction of the court
or consented to its passing, it cannot be recognised by the courts in India.
e) Third, the Photostat copy of the divorce decree would have to be certified by the
representative of the Central Government in the US as required under Section 86
of the Indian Evidence Act, 1872. Therefore, the document was not admissible in
evidence for want of certificate under Section 86 of the Act.

PART B: OBSERVATIONS
PART C: GENERAL PRINCIPLES WITH RESPECT TO SECTION 13 OF THE CPC

a) Section 13(a) should be interpreted to mean that only that court will be a court of
competent jurisdiction which the Act or the law under which the parties are
married recognises as a court of competent jurisdiction to entertain the
matrimonial dispute. Any other court should be held to be a court without
jurisdiction unless both parties voluntarily and unconditionally submit themselves
to the jurisdiction of the Court.
b) Section 13(b) should be interpreted to mean that first, a decision of the foreign
court should be on the ground available under the law which the parties are
married and second, that the decision should be a result of the contest between
parties. The latter requirement is only fulfilled when the respondent is duly served
and voluntarily and unconditionally submits to the jurisdiction of the court and
contests the claim, or agrees to the passing of the decree with or without
appearance. A mere filing of reply to the claim under protest and without
submitting to the jurisdiction of the Court, or an appearance in the Court either in
person or through a representative for objecting to the jurisdiction of the court,
should not be considered as a decision on the merits of the case. In this respect,
the general rules of acquiescence to the jurisdiction of the Court which may be
valid in other matters and areas should be ignored and deemed inappropriate.
c) Section 13(c) states that where the judgment is founded on a refusal to recognise
the law of the country in cases in which such law is applicable, the judgment will
not be recognised by Courts in this country. The marriages which take place in
India can only be either under the customary law or the statutory law in force in
this country. Hence, the only law that can be applicable to the matrimonial
disputes is the one under which the parties are married, and no other law. When,
therefore, a foreign judgment is founded on a jurisdiction or on a ground not
recognised by such law, it is a judgment which is in defiance of the law. Hence, it
 is not conclusive of the matters adjudicated therein and, therefore unenforceable
in this country. For the same reason, such a judgment will also be unenforceable
under Section 13(f), since such a judgment would obviously be in breach of the
matrimonial law in force in this country.
d) Section 13(d) pertains to a foreign judgment unenforceable on the ground that the
proceedings in which it is obtained are opposed to natural justice, states no more
than an elementary principle on which any civilised system of justice rests.
However, in matters concerning the family law such as matrimonial disputes, this
principle has to be extended to mean something more than mere compliance with
the technical rules of procedure. If the rule of audi alteram partem has any
meaning with reference to the proceedings in a foreign court, for the purposes of
the rule, it should not be deemed sufficient that the respondent has been duly
served with the process of the Court. It is necessary to ascertain whether the
Respondent was in a position to present or represent himself and contest
effectively the said proceedings. The requirement should equally apply to the
appellate proceedings if and when they are filed by either party. If the foreign
court has not ascertained and ensured such effective contest by requiring the
petitioner to make all the necessary provisions for the Respondent to defend
including the costs of travel, residence, and litigation where necessary, it should
be held that the proceedings are in breach of the principles of natural justice.
e) Section 13(e) which requires that Indian Courts will not recognise a foreign
judgment if it has been obtained by fraud is self-evident. In view of Satya v. Teja,
it must be understood that the fraud need not only be in relation to merits of the
matter but can also relate to jurisdictional facts.

PART D: GENERAL RULE AND EXCEPTIONS TO RECOGNITION

The jurisdiction assumed by the foreign court as well as the grounds on which the
relief is granted must be in accordance with the matrimonial law under which the
parties are married. The exceptions to this rule are as follows:

a) Where the matrimonial action is filed in the forum where the Respondent is
domiciled or habitually and permanently resides and the relief is granted on a
ground available in the matrimonial law under which the parties are married.
b) Where the Respondent voluntarily and effectively submits to the jurisdiction of
the forum as discussed above and contests the claim which is based on a ground
available under the matrimonial law under which the parties are married.
c) Where the Respondent consents to the grant of the relief although the jurisdiction
of the forum is not in accordance with the provisions of the matrimonial law of the
parties.
PART E: ANALYSIS
Satya’s case was a civil case pertaining to maintenance and Rao’s case was a criminal
case pertaining to bigamy. Both cases discussed Section 13 extensively. The 65th
Law Commission of India Report was based on Satya v. Teja and proposed a separate
bill with respect to foreign divorce decrees but because of the then Government, the
bill was never introduced. One need not think too much on which government was in
power back then. The labours of the 65th LCI Report have not fructified since April,
1976 and SC observed that despite 43 years of Independence, no action had been
taken by the Parliament. SC’s obiter in Rao’s case was also that the domicile of the
wife does not attach to the domicile of the husband.

3. Dinesh Singh Thakur v. Sonal Thakur

Facts
Dinesh and Sonal married on 20 February 1995 as per Hindu rites and begot 2
children. Dinesh was working in the USA and took the wife to there on a dependant
visa. Eventually, both parties obtained citizenship in the USA in May 2003. They
obtained Person of Indian Origin (“PIO”) Status in June 2003 and Overseas
Citizenship of India (“OCI”) in July 2006.
Dinesh filed a petition for divorce under Section 13 of HMA before the Gurgaon
family court. In response the wife filed a petition in Florida, USA for divorce on the
ground of irretrievable breakdown of marriage. Dinesh then filed a civil suit before
the Gurugaon court for a permanent injunction and declaration to restrain his wife
from pursuing the petition for divorce before the Court in the USA.
The district judge granted the ex parte ad interim injunction to the husband. Wife then
filed an application for vacating and/or modifying the order. The judge vacated the
injunction. Dinesh filed an appeal before the HC, which dismissed it. The husband
then filed an SLP.
Issue
Is the husband entitled to an anti-suit injunction?
Argument of husband

• Wife is arguing irretrievable breakdown of marriage in US courts. That is not

even a ground under the HMA. Hence those proceedings need to be stayed.
• Wife is a resident of India since 2003 along with their minor children. She is only
bringing her US action in response to the husband’s Indian divorce application.
This is an abuse of the process of law and amounts to multiplicity of proceedings.
• The Gurgaon court is the convenient forum for deciding this dispute.
Argument of wife

• Petition filed in the US court is not only for dissolution for marriage but is also for
claiming various other reliefs such as equitable distribution of marital assets, child
support, alimony, partition, and other reliefs that are just not available under
Indian law.
• Further, there will be irreparable loss or injury to the wife and children if the
petition in the US court is stayed.

Held SC
a) Though the wife was amenable to the jurisdiction of the Family Court, Gurugram,
there was nothing on record to hold that the other party would suffer grave
injustice if the injunction was not granted. Even if the injunction was declined, it
cannot be said that the ends of justice will be defeated and injustice would be
perpetuated. There was no dispute to the fact that both the parties are permanent
citizens of the US.
b) Undisputedly, the Florida Court has concurrent jurisdiction in the given case. The
mere fact that the Respondent wife has filed the case on the ground which is not
available to her under the Act, does not mean that there is likelihood of her
succeeding in getting a decree for divorce.
c) Specifically, in view of the fact that the Appellant has raised this contention
before the Circuit Court, Florida and both parties will produce evidence with
regard to the other question whether their marriage is governed by the Act or any
other law.
d) The foreign Court cannot be presumed to be exercising its jurisdiction wrongly
even after the Appellant being able to prove that the parties in the present case
continue to be governed by the law governing Hindus in India in the matter of
 dispute between them. The proceedings in the foreign court could not be said to be
oppressive or vexatious.
The appeal was accordingly dismissed.

4. Alcon Electronics v. Celem SA of France

Facts
Celem (France) filed a suit against Alcon before the English Court for Infringement of
the Patent of Celem and other reliefs. Alcon filed an application for challenging the
jurisdiction of the English Court. Alcon sought relief which included payment of costs
occasioned by filing the application to be summarily assessed. The UK Court, vide its
order dated 19 October 2006, dismissed the claim of Alcon and directed it to pay
costs of application set at £12,229. Alcon agreed to pay the costs and sought some
time. Celem filed an execution petition in India. Alcon opposed it on the ground that
it was non-executable. It was decided at almost all stages before it being assailed to
the Supreme Court. UK is a reciprocating territory within the meaning of Section 44
of the CPC.
Alcon’s arguments
First, Alcon argued that the Interim Order was not conclusive as per Section 13(b) of
the 1908 Code and was not on the merits of the case. Second, the Order was not a
decree under explanation 2 of Section 44A. Third, it was contended that the order
relating to the payment of interest on cost should not be executed in view deletion of
Section 35(3) of the CPC and was not recognised by Indian Law.
Celem’s arguments
Celem contended that order was on the merits of the since evidence was led and oral,
documentary evidence and witnesses were produced. Second, it was argued that
explanation 2 of Section 44A was not attracted as costs were a money decree and not
fine or penalty.
Issues

• Whether the order passed by the foreign court falls within the Exceptions to
Section 13 of the CPC?
• Whether the Order passed by the foreign court amounts to a decree and the same
is executable?
• If answer to B. Is in the affirmative, whether the decree for costs would fall within
the ambit of Explanation 2 of Section 44-A(3) of the CPC and make it
unexecutable?
• Whether the interests on costs could be executed in India in view of deletion of
Section 35(3) of the CPC?
• Whether interests on costs would fall within the ambit of Explanation 2 of Section
44-A of the CPC?

Held
a) First, it was held that the decision was conclusive and was given on the merits of
the case. Since evidence was led, it was on the merits of the case. Clearly, oral and
documentary evidence was led before the UK Court and witnesses were also
produced. Therefore, it was a decision on the merits of the case and Section 13(b)
could not be attracted.
b) Second, Section 44A refers to enforcement of decrees and not orders. Explanation
2 defines a decree which means any decree or judgment under which a sun of
money is payable and Alcon contended that an order was not included within the
term decree.
à However, Sikri, J. held if the order is executable as a decree, it would be
enforceable under Section 44A. The nomenclature made no difference and if the order
was capable of being executed as a decree, it would be enforceable.
c) Third, Section 44A clearly prescribes of foreign revenue law and the term it uses
is fine or penalty. In Huntington v. Attrill, the characterisation was done based on
penal and remedial law. The characterisation is done based on who gets the
money and it is of a remedial nature if the private party gets the money and
therefore, the Court held that it was as good as a money decree and not penal in
nature. It was a decree as per Section 44A.
d) Fourth, it would not within the term penalty and would be executable.
e) Fifth, in view of the deletion of Section 35(3) on costs and interests, was it
substantive (lex causa) or procedural (lex fori) was the question and the Court
held that interests on costs was of a substantive nature and right and therefore, the
lex cause approach would be followed and interest could be granted.
f) The Execution could be done and further, the court also distinguished the costs
from Section 35. Section 13 applied to matrimonial disputes is different from
Section 13 applied to commercial disputes. Section 13 defines foreign court as
well as foreign judgment. A Foreign Judgment may also operate as res judicata
under Section 11 of the CPC.

As we have understood so far, Section 13 provides guidance on when a foreign

judgment is enforceable. The CPC’s exceptions to Section 13 shall be considered
next.
 COURT OF COMPETENT JURISDICTION
First, the judgment must be handed down by a court of competent jurisdiction. This is
determined on the basis of rules of PrIL and not law of the forum or the law of the
country where the foreign court is situated.
Gurudayal v. Raja of Daridkot
Facts
Gurudayal took service with the Raja of Faridkot. In 1874, he left the service of the
Raja. In 1879, Raja brought a suit against Gurudayal for misappropriation claiming
Rs. 60,000. The Raja obtained two ex parte decrees for sums totalling more than 70k.
In both cases, Gurudayal had not submitted to the jurisdiction of the Faridkote court,
as he was a native of Jind. The decree of Faridkot came up for enforcement in Lahore
(at the time in India). (At the time Faridkote was an Indian state and vis-à-vis British
India, judgments pronounced by Faridkote courts were treated as judgment by a
foreign court.)
Held

a) In a personal action a decree passed in absentem by a foreign court, to the

jurisdiciotn of which the defendant has not submitted himself, is by international
law an absolute nullity.
b) Territorial jurisdiction attaches upon a person when they are within the terriroty. It
does not follow them after they have withdrawn from it and are living in another
independent country.

This invites the question what is the relevance of actions in personam to the
enforcement of foreign decrees?

JURISDICTION IN PERSONAM

1. Jurisdiction in personal actions depends upon the presence of the defendant within
the jurisdiction. If the defendant is not present within the jurisdiction the court has
no jurisdiction, unless the defendant submits to the jurisdiction.
2. Therefore, residence at the time when the action began gives jurisdiction in a suit
to the foreign court. This I ubject to the following exceptions:
a) Nationality of Defendant: The defendant was a subject of that foreign state.
b) Invocation of the Forum of the Plaintiff: Where the defendant in character of the
plaintiff had elected the forum in which he is afterward sued.
c) Voluntary Appearance & Submission: Where he and the defendant voluntarily
appeared in that Court and had submitted to its jurisdiction.
d) Jurisdictional Clause in Contract: Where he had contracted to submit himself to
that foreign forum.
3. Mallappa Yellappa v. Raghavendra Sham Rao

In this case the court listed the following rubric for determining when the foreign
court may be said to have jurisdiction:

a) Defendant is subject of the foreign country

b) Defendant is a resident in the foreign country when the action began against him
c) Defendant is served with the process while temporary present within the foreign
country
d) Defendant in his charcter as plaintiff in the foreign action has selected the forum
where the judgment was given against him
e) Defendant has voluntarily appeared before the foreign court
f) Defendant has contracted to submit to the jurisdiction of the foreign court.

4. R. Viswanathan v. Syed Abdul Wajid

There is no rule of Private International Law that a court can in no event exercise
jurisdiction in relation to persons, property or matters outside its jurisdiction. The
Courts of a country generally impose a 3 fold restriction upon the exercise of their
jurisdiction:

a) Jurisdiction in rem by a Court over res outside the jurisdiction will not be
exercised because it will not be recognised by other courts.
b) The court will not deal directly with title of immovable property outside the
jurisdiction of the state from which derives its authority.
c) The Court will not sit in the enforcement within its jurisdiction of foreign penal
and revenue laws.

5. International Woollen Mills v. Standard Wool

Facts
In 1996, International Woollen Mills placed an order with Standard Wool for the
purchase of greasy fleece wool. The goods were shipped to Mumbai on CIF Terms in
September 1996. IWM claimed the goods from Mumbai and took them to Ludhiana.
However, IWM did not pay the price of the goods on the ground that after taking
delivery, it was found that the goods were of an inferior quality. On 20 April 1998, an
ex-parte decree came to be passed by the Central London County Court. Thereafter,
there was a petition for execution under Section 44A. The question was whether it
was on the merits of the case for the purposes of Section 13(b).
Held
In a given case, it may be possible that even though the defendant has not entered
evidence, the plaintiff may prove its case through oral and documentary evidence. If
after consideration of oral and documentary evidence, an ex-parte decree is passed, it
would be a decree or merits. Further, the burden of proving that the decree is not on
merits is on the party alleging it. Such a party must demonstrate that the decree does
not show that it is on merits. It is also a well settled principle of law that even an ex-
parte decree can operate as res judicata because an ex-parte decree is a decree on
merits.

6. Baldevdas Patel v. Mohanlal Bahia

a) In a summary suit where the condition on which leave defend is not complied
with, that may result in the coercive process of law. An ex-parte decree is,
however, decree on merits passed by the Court after it has heard and decided the
matter.
b) A defendant who does not appear before a foreign court despite being served
runs the risk of an ex-parte judgment in favour of the plaintiff and it is a settled
principle of law that such a judgment may well be a judgment given on merits if
evidence is adduced on behalf of the plaintiff and the judgment is based on a
consideration of the evidence.
c) Reasonable Notice is an essential element of the principle of natural justice and,
under Section 13(d) of the Code of Civil Procedure, the Indian courts will
consider the service of process to see whether reasonable notice was given to the
judgment debtor. However, there is no criteria to determine reasonableness and
is a fact specific question.

LIMITATION PERIOD
The limitation relating to Section 44A is as follows:
a. For the execution of a decree granting a mandatory injunction, 3 years from the
date of the decree or the date fixed for performance; and
b. For the execution of any other decree, 12 years from the day on which 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 or in a recurring period, when
default in making the payment or delivery in respect of which execution is sought to
take place (provided that an application for the enforcement or execution of a decree
granting perpetual injunction will not be subject to any period of limitation).

The limitation period for Section 13 is 3 years from the date of the foreign judgment
or decree.