In simple words, foreign judgment means a judgment of a foreign court. In this new period of globalization and digitalization, the Indian legal system is often acknowledged for the importance it gives to the application of foreign decrees and judgment. Foreign legal materials are now easily available because of the advancement in communication and technological development in the world. 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
A foreign judgment can be defined as adjudication by a foreign court upon a matter before it. We can say that judgments delivered by the courts in England, USA, France, etc are called foreign judgment.
One important thing to do know is that the judgment delivered by a foreign court of competent jurisdiction can be enforced by an Indian court and this will operate as res-judicata between the parties thereto except in the cases mentioned in section
Definitions under CPC
The Indian Code of Civil procedure, 1908. (CPC) lays down the procedure for enforcement of foreign judgments and degrees in India. CPC, 1908 has defined the following as-
What is Foreign Under CPC?
Foreign “Means a “situated outside India and not established or continued by the authority of the central government.
What is foreign judgment under CPC?
Foreign judgment means the judgment of a foreign court.
What is Section 13 of the Civil Procedure Code
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 to litigate under the same title except under the provisions of subsection (a) to subsection (f) of section 13.
Jurisdiction to Foreign Courts:
The following circumstances would give jurisdiction to foreign courts:
- Where the person is a subject of a foreign country in which the judgment has been obtained
- Where he was a resident in the foreign country when the action was commenced and the summons was served on him
- Where the person in the character of plaintive selects the foreign court As the forum for taking action in which forum he issued later
- Where the party on someone’s voluntarily appeared
- Whereby an agreement, a person has contracted to submit him to the forum in which the judgment is obtained.
Nature and scope of section 13 CPC
Section 13 of CPC includes the principle of res judicata in foreign judgments. It incorporates the principle of Private international law that a judgment delivered by a foreign court of competent jurisdiction can be executed and enforced in India.
The object of Recognizing Foreign Judgment
The judgment of the foreign court is enforced on the principle that where a court of competent jurisdiction has adjudicated upon the claim, the legal obligation arises to satisfy the claim. The rules of private international law of each state differ in many respects, but in the comity of nations, certain rules are recognized as common to civilized jurisdiction. And awareness of foreign law in the parallel Jurisdiction would be a useful guideline in determining our notions of justice and public policy. We are also a virgin nation within our territory but it is no derogation of sovereignty to take accounts of foreign law.
Such recognition is accorded not as an act of courtesy but on considerations of justice, equity, and good conscience.
When it is binding
The code of civil procedure provides that 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 to litigate under the same title except subsection (a) subsection (f) of section 13
This means that there are six points that are considered, where foreign judgments are not binding on Indian courts.
When it is not binding
Under section 13 of the civil procedure code.1908 a foreign judgment is conclusive and will operate as res judicata between the parties thereto except in the cases mentioned in subsection a to f of section 13.
This means that foreign judgment is not binding in cases mentioned under section 13(a) to 13(f) of the CPC 1908.
Dicey rightly stated “a foreign judgment is conclusive as to any matter thereby adjudicated upon and cannot be impeached for any error either of fact or law”
In the following six cases, a foreign judgment shall not be conclusive:
Sec 13(a): Foreign judgment not by a competent court
It is a fundamental principle of law that the judgment or order passed by the court which has no jurisdiction is null and void. The judgment of the foreign court to be conclusive between the parties must be a judgment pronounced by a competent jurisdiction.
Sec 13(b): Foreign judgment not on merits
A judgment is said to have been given on merits when, after taking evidence and after applying its mind regarding the truth or falsity of the plaintiff’s case, touch the sides one way or the other. Thus, when the suit is dismissed for default for the appearance of plaintive, or for non-production of the document even before the written statement was filed by the defendant or feared the decree was passed in consequence of the default of the defendant for furnishing security or after refusing leave to defend, such all judgments are not on merits.
Sec 13(c): Foreign judgment against international/Indian law
Or judgment based upon an incorrect view of international law or a refusal to recognize the law of India is not a conclusive one.
Sec 13(d): Foreign judgment opposed to natural justice
It is the essence of attachment of a “that is must be obtained after due observance of the day process that is the “rendering the judgment must observe the minimum requirement of natural justice, which means it must be composed of impartial persons, act fairly, without bias and in good faith, it must give reasonable notice to the parties to the dispute and afford each other party adequate opportunity of presenting the case.
Sec 13(e): Foreign judgment obtained by fraud
Lord Denning observed that no judgment of the court, no order of the minister can be allowed to stand if it has been obtained by fraud.
The husband obtains a decree of divorce against his wife from an American court on the ground that he was a resident of America. Then he remarried. His first wife filed a case against both for bigamy. Then the husband and the new wife filed an application for discharge. The Supreme Court held that the decree of dissolution of marriage was without tourist diction in as much as neither the marriage was Solemnized nor the parties last resided together in America. It was therefore unenforceable in India.
Sec 13(f): Foreign judgment founded on a breach of Indian law.
When a foreign judgment is founded on a breach of law in force in India, it would not be enforced in India.
The rules of private international law cannot be adopted mechanically and blindly. Every case which comes before an Indian court must be decided in accordance with Indian law.
Presumption as to foreign judgments:
Section 14 of the Code of Civil Procedure, 1908
Section 14 of the CPC declares that 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, or is proved. However, if for admissibility of such copy any further condition is required to be fulfilled, it can be admitted in evidence only if that condition is satisfied. Thus, in Narsimha Rao v. Venkata Lakshmi35, the Supreme Court held that mere production of a Photostat copy of a decree of a foreign court is not sufficient. It is required to be certified by a representative of the Central Government in America.
Enforcement of Foreign Judgments
A foreign judgment, which is conclusive under Section 13 of the Code, can be enforced in India in the following ways:
1. By instituting a suit on such foreign judgment
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 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 upon between the same parties. Such a suit must be filed within a period of three years from the date of the judgment.
2. Execution Proceedings
A foreign judgment may also be enforced by proceedings in execution in certain specified cases mentioned in Section 44-A of the CPC. The said section provides that where a certified copy of a decree if 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. When a foreign judgment is sought to be executed under Section 44-A, it will be open to the judgment-debtor to rake all objections, which would have been open to him under Section 13 if a suit had been filed on such judgment. The fact that out of six exceptions there has been due compliance with some of the exceptions is of no avail. The decree can be executed under Section 44-A only if all the conditions of Section 13 (a) to (f) are satisfied.
What are Foreign Awards?
Principles laid down in the section do not apply- It is not open to the party, who is a party to the award, to contend that the award was not given on merits of the case. Say that if the award was given against the rules of natural justice or it was fraudulently obtained, the party may not be prevented from putting forward those contentions. But it is difficult to accept the view that because on a foreign judgment it is open to a party to contend that it was not given on the merits of the case, it is equally open to a party who is resisting the suit on the award to contend that the award was not given on the merits of the case. Only if the award given in a foreign country is reinforced by a decree of the Court of that country the courts will be bound to take notice of it but without such a decree reinforcing such award, the award must be deemed to be non-existent. An award passed by the foreign arbitrator is enforceable in a country where it was made and can also be enforced in India. Courts may refer to CPC or any other statute while considering the procedure to be followed for enforcement of foreign awards under Foreign Awards (Recognition and Enforcement) Act (45 of 1961)
Therefore, the above discussion of the legal issues involved in the enforcement of foreign decrees in India emphasizes the need for the Indian business sectors not to treat the summons received from foreign courts casually. Rather, to contend at a later stage that the foreign decision/decree is not based on “merit” or contrary to the provisions of the Indian Civil Procedure Code, may turn out to be unsafe and may jeopardize the protective umbrella which the Indian companies are so accustomed to while dealing with litigations in Indian courts.
1. AIR 1977 SC 105
2. 1991 3 SCC 451
Student, Amity University NOIDA
Vani Parashar is a 3rd-year law student at Amity University, Noida. As a law student, She has taken part in different fields like youth parliaments, debates, MUNs and event organisation. She is a well-rounded individual who lives with passion, dedication and grace and this is what sets her apart from anybody else.