Case List: ENFORCEABILITY OF FOREIGN JUDGMENTS IN INDIA

A foreign judgment which is conclusive under Section 13 of the Code of Civil Procedure, 1908, can be enforced in India by:

1. By filing an Execution Petition under Section 44A of the Civil Procedure Code (“CPC”)[1] (in case the conditions specified therein are fulfilled).
2. By filing a suit upon the foreign judgment /decree.[2]

In both the cases, the decree has to pass the test of S. 13 of CPC.[3]

Section 44A:  Execution of Decrees passed by Courts in Reciprocating Territory

 (1) Where a certified copy of 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.

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 to 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.

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 —

• 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 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 India.

CASE LAWS:

Case Laws on Section 13:

1. Narsimha Rao v. Venkata Lakshmi[4]: In this case the Supreme Court observed that if a foreign judgment has not been given on the merits of the case, the courts in India will not recognize such a judgment.
2. International Woollen Mills Limited v. Standard Wool (UK) Limited[5]: 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.
3. Viswanathan v. Abdul Wajid[6]: 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.
4. Chengalvaraya Naidu v. Jagannath[7]: In this case the Supreme Court observed:

• “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.”

5. Satya v. Teja Singh[8]: 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.

Compilation: Vivek Verma

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[1] Under S. 44A of the CPC, a decree of any of the Superior Courts of any reciprocating territory are 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.

[2] 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 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.

[3] Section 13 specifies certain exceptions under which the foreign judgment becomes inconclusive and is therefore not executable or enforceable in India.

[4]  (1991) 3 Supreme Court Cases 451

[5] International Woollen Mills Limited vs. Standard Wool (UK) Limited  (2001)  5 Supreme Court Cases 5 SCC 265

[6] Viswanathan vs. Abdul Wajid, All India Reports 1963 Supreme Court 1 (at pages 21-23)

[7]  (1994) 1 Supreme Court Cases  1

[8] (1975) 1 Supreme Court Cases 120