In the era of Globalization, India is becoming one of the notable countries in the market making it paramount and befitting to appraise law relating to foreign judgment in India. India frequently relies on foreign judgments to interpret the law. The law relating to foreign judgments in India is unambiguous and lays down an uncomplicated procedure for enforcement of the same. It is not unknown that Indian Courts look into International as well as comparative law sources in determining creative strategies for developing norms and providing justice to each and every person.
What are foreign court and foreign judgment?
Foreign Court is defined under Section 2(5) of the Code of Civil Procedure Act, 1908
In simple language, it means the courts that are neither situated in India nor established or continued by the central government of India are foreign courts.
Foreign Judgment is defined under Section 2(6) of the Code of Civil Procedure, 1908
In a layman's language, it can be said that All the judgments that are given or pronounced by the foreign court are known as Foreign Judgment.
Enforcement of foreign judgments in India
The enforcement of foreign judgments in India is made clear by the provisions laid down under section 13, 14, and 44A of the Code of Civil Procedure, 1908 which brings out an efficient mechanism to enforce these judgments.
These judgments or decrees are executed in India in such a manner as if they are being passed by an Indian district only.
Under Section 44A of the Code of Civil Procedure (CPC), 1908, the foreign judgments are classified into two by the Indian legal system.
a) Foreign Judgments from reciprocating territories
Reciprocating territories- these territories for the purpose of this section means, any territory or country outside India which the central government, may by notification in the official gazette, declare as a reciprocating territory. It is an agreement between another country and India that accordingly says that the judgments or decrees of the superior courts situated in the reciprocating territory can be implemented in the other country by filing a copy of such decree.
Superior Courts- The courts in the reciprocating territories whose judgment can be implemented in India are termed as Superior Courts.
Following are the countries which are considered as Reciprocating territories in India-:
- United Kingdom
- Republic of Singapore
- Federation of Malaya
- Trinidad and Tobago
- New Zealand, the Cook Islands (including Nieu), and the Trust Territories of Western Samoa
- Hong Kong
- Papua and New Guinea
- United Arab Emirates
In case of all these mentioned reciprocating territories, the foreign judgment or decree will be enforced under section 44-A of the CPC, 1908, on the condition that they are not declared inconclusive or do not satisfy any condition laid down under section 13 of the Code of Civil Procedure, 1908.
b) Foreign Judgments from non-reciprocating territories
Non-Reciprocating territories- These are those territories with which India doesn't have an agreement.
Procedure for such enforcement
A foreign judgment or decree which is declared to be conclusive in nature according to section 13 of the CPC, 190, then such judgment or decree can be executed in two ways.
1. By filing a petition for execution under section 44-A of the CPC
This basically means that the judgment or decree from the courts of a reciprocating territory can be directly enforced by filing an execution petition before the Indian court.
2. By Filing a suit upon the foreign judgment or decree
This simply means that if you want a judgment or decree from a foreign court that is a non-reciprocating authority to be enforced in India then such decree/judgment can only be enforced by filing a lawsuit in an Indian Court for a decree or judgment based on the foreign judgment/decree.
In such cases, the foreign judgment or decree is only considered evidentiary.
There is also a time limit to file such a lawsuit in India that is within three years of the passing of such a foreign judgment or decree.
Basic Requirements for enforcement of such judgments
According to Section 44-A of the CPC, 1908, the essential requirements for enforcing a foreign judgment or decree of reciprocating territories in India are-:
a. The judgment or decree provided must be of a superior court of the reciprocating territories.
b. The certified copy of such decree or jurisdiction to be filed in a district court of India exercising original civil jurisdiction.
c. Provisions given under section 47 of the CPC shall apply subject to the exceptions provided under section 13 of the CPC, 1908.
d. A decree here means a decree under which a sum of money is payable (as provided under explanation-II of the section 44-A of the Code of Civil Procedure, 1908)
e. A certificate specifying as to what extent the decree has already been satisfied (if any) has to be provided by the foreign court.
In the case of the non-reciprocating territories, a civil suit on the foreign decree or judgment must be filed by the judgment holder with a certified copy of such foreign decree or judgment.
When are these foreign judgments or decrees executed in India?
Such foreign judgments or decrees can only be executed in India if they are declared conclusive under section 13 of the Code of Civil Procedure and do not satisfy the conditions mentioned under the same section.
Section 13 says that "A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties under whom they or any of them claim litigating under the same title except-"
This basically means that the foreign judgments are considered conclusive in Indian courts only if they do not satisfy the exceptions given under the same section.
Exceptions lay down under section 13 of CPC, 1908 are-:
i. Where it has not been pronounced by the court of competent jurisdiction (13(a))
The foreign judgments are considered conclusive only if it has been pronounced by a court which has the jurisdiction for passing such a judgment. If it is passed by an incompetent court or a court that did not have the required jurisdiction over the matter then such judgment will not be considered conclusive in Indian Courts.
It is given under section 14 of the Code of Civil Procedure, 1908 that the Indian Court shall presume that the provided foreign judgment purporting to be a certified copy of such judgment, that such judgment was pronounced by a court which has the jurisdiction to pass such a judgment, Though such presumption is not absolute in nature and can be challenged by proving that the said court did not have the jurisdiction to pass such a judgment.
The celebrated case of, Ramanathan Chettyar and another V. Kalimathu Pillay and another of the Madras High Court provided the following circumstances under which the foreign court is said to have competent jurisdiction
- The defendant is the subject of the country where the judgment was passed.
- The defendant is a resident of the country in which the action was commenced.
- The defendant has, in a previous case filed a suit in the same forum.
- Where the defendant has voluntarily appeared.
- Where the defendant has contracted to submit itself to the jurisdiction of the court.
ii. When the judgment has not been given on the basis of the merits of the case (13(b))
If the foreign judgment provided in front of the court of law is not decided on the basis of merit then such judgment means that the parties in the provided judgment were not provided with fair, equal, and reasonable opportunity to represent themselves or the plea was dismissed by the courts on technical grounds than such judgments are not conclusive in nature.
iii. 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 (13(c))
If there is an incorrect view present in such foreign judgment and the Indian laws are not recognized if they are applicable then such judgment is not considered conclusive.
iv. Where the proceeding in which the judgment was obtained are opposed to natural justice (13(d))
If the proceedings of the provided foreign judgment are opposite to the natural justice then such judgment won’t be considered conclusive in nature and it won’t be recognized in the Indian Court.
v. Where it has been obtained by fraud (13(e))
If the foreign judgment, that has been presented is obtained through fraud by a party in that case then such judgment is not considered to be conclusive in Indian Courts.
In the case of, Satya V. Teja Singh AIR 1975 SC105 at pg.117 para.50, the honorable supreme court held that since the plaintiff had misled the foreign court as to its having jurisdiction over the matter, although it could not have had the jurisdiction, the judgment and decree was obtained by fraud and hence inconclusive.
vi. Where it sustains a claim founded in a breach of any law in force in [India] (13(f))
If the claim awarded in such foreign judgment breaches any of the laws in force in India then such judgment is not considered conclusive here.
- The case of Raj Rajendra Sardar Maloji MarSingh Rao Shitole V. Sri Shankar Saran and Ors, 1962 AIR 1737, is one of the very early cases of India. The initial case was filed by the appellant against the respondent who was the resident of U.P for the recovery of money in a court of Gwalior state in May 1947. The respondent did not appear before the court and in November 1948, the Gwalior court passed an ex parte decree. On September,14,1951 transferred the decree for execution to Allahabad. In October 1951, the appellant filed an application in Allahabad High Court for the execution of the decree before Allahabad High Court. The respondents contended that the decree being a decree of a Foreign Court to whose jurisdiction they had not submitted was a nullity and the execution application in respect thereof was not maintainable. One thing that should be kept in mind while going studying this case is that at that time Gwalior was not part of the Indian Territory, it was a separate princely state. The Gwalior court was sought to be a foreign court and the decree was a foreign decree. The respondents did not fulfill any of the conditions that are required for the competent jurisdiction of the foreign court. Sec.44 was equally inapplicable to the decree here in the present case according to the judges. The section after adaption in 1950 applied only to revenue courts, before the adaption it could only apply if there was a notification by the U.P government but no such notification was issued. The Allahabad High Court on various grounds held that the decree was not executable at Allahabad High Court and dismissed the appeal.
- The case of, Shaligram V. Daulat Ram 1967 AIR 739 1963 SCR (2) 574, is also one of the very interesting cases regarding foreign judgments. In this case, The High Court of Bombay passed a pronouncement against three defendants who were an inhabitant of the previous province of Hyderabad. Before it was passed the appellant had applied for leave to defend which was conditionally allowed and on his failure an ex parte order was passed. The appellant did not file any written statement. On the transfer of the case, the respondent took out the execution in the Court of District judge, Bhir, to which the applicant objected on the ground inter-alia, that the decree was a foreign decree and could not be executed in the Court at Bhir, which was being overruled. An appeal was taken to the High Court and the High Court also dismissed the appeal on the ground that the appellant had submitted to the jurisdiction of the Bomba HC. It was held by the honorable court, that an individual who showed up in submission to the process of the foreign court and applied for leave to defend the suit without challenging the jurisdiction of the court must be held to have intentionally submitted to the jurisdiction of such court and therefore this decree did not suffer from any defect which a foreign decree would suffer without such submission. While referring to the case of, Shaik Atham Sahib v. Daviud Sahib, (1909) I. I. R. 32 Mad.469, it was further held that as the Code of Civil Procedure was made applicable to Hyderabad State when the order of transfer was made, the pronouncement could be executed there.
The laws regarding foreign judgments in India are unambiguous and lay down a simple procedure for their enforcement. Though there are various debates going on categorizing reciprocating and non-reciprocating territories, it is because of the paucity of data from other parties of bilateral treaties. India enforces various judgments to serve justice every single being. There are few general conditions that are required to be satisfied for a foreign judgment to be enforced in India, these conditions help in enforcing only those judgments which guarantee fairness to both the parties of the case. Hence, it can be said that India has an efficient legal framework to enforce foreign judgments in India.