JAMIA MILLIA ISLAMIA

Faculty of law

Assignment

FOREIGN JUDGMENTS: CONCEPT AND ENFORCEMENT

Civil Procedure Code - I

Submitted to: Dr. Ekramuddin Malik

Submitted by: Sunidhi Sachdeva

ROLL NUMBER: 58

BA.LLB (Regular) 7th Semester

Batch: 2017 – 2022

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 CERTIFICATE

The project entitled FOREIGN JUDGMENTS: CONCEPT AND ENFORCEMENT

submitted to the Faculty of Law, Jamia Millia Islamia for CODE OF CIVIL PROCEDURE-1
as part of my internal assessment is based on my original work carried out under the guidance of
Dr. Ekramuddin Malik.

The research work has not been submitted elsewhere for award of any degree. I understand that I
myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate:

Date:

TABLE OF CONTENTS
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1. ABSTRACT.
2. INTRODUCTION.
3. NATURE AND SCOPE OF FOREIGN JUDGMENTS.
4. OBJECT OF RECOGNIZING FOREIGN JUDGMENTS.
5. JURISDICTION OF FOREIGN COURTS.
6. WHEN A FOREIGN JUDGMENT IS CONCLUSIVE?
7. PRESUMPTION AS TO FOREIGN JUDGMENT.
8. ENFORCEMENT OF FOREIGN JUDGMENTS.
9. LIMITATION PERIOD FOR ENFORCEMENT OF FOREIGN
JUDGMENTS.
10. ENFORCEMENT OF FOREIGN ARBITRAL AWARDS.
11. DOMESTIC JUDGMENT v. FOREIGN JUDGMENT.
12. CONCLUSION.
13. BIBLIOGRAPHY.

ABSTRACT
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With the development of a new era of globalization and increased communications between
different Nations, it is indispensable that the jurisdictional issues as to the disputes between the
parties occur during such cross border transactions. Every party have their own concern as to
their rights and in that process try to ignore the procedure agreed when they dispute or try to
override such agreements by seeking the local courts to quash the foreign judgment. The courts
in such a situation are not able to do a justification to the parties because there are certain
restrictions as to the enforcement and execution of foreign judgments. Also, it becomes pertinent
for the legal system of every country to appreciate, recognize and give importance to foreign
decrees and accessible due to communication and technological development. The Indian legal
system is primarily based on Common law legal system. Besides, the Constitution of India has borrowed
various concepts from the constitution of other countries. Likewise, it becomes necessary for the Indian
Judiciary to recognize and enforce such foreign decrees and judgments in India which is in consonance
with the basic fundamental rules and laws in force in India.

This research paper is aimed towards studying in detail the concept of foreign decrees and
judgments passed by the foreign courts, their enforceability and the nature and scope of Section
13, Section 14, Section 44-A of the Civil Procedure Code, 1908 (hereinafter referred to as
“CPC”).

INTRODUCTION
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The provisions related to the concept and the mode of enforceability of foreign decree and
judgments is extensively laid down in the Civil Procedure Code, 1908. For understanding these
concepts, it becomes necessary to analyse Section 2 and Explanation II to Section 44 of the
CPC, i.e. the definition clause.

Section 2(5), CPC defines “foreign Court”: means a Court situate outside India and not
established or continued by the authority of the Central Government.

The crucial date to determine whether the Judgment is of a Foreign Court or not is the date of the
judgment and not the date when it is sought to be enforced or executed. Thus, a court which was
a foreign court at the time of the pronouncement, would not cease to be a foreign judgment by
reason of the fact that subsequently the foreign territory has become a part of India.

Section 2(6), CPC defines “foreign judgment”: means the judgment of a foreign Court.

Explanation II to section 44A, CPC defines “foreign decree” 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.

NATURE AND SCOPE OF FOREIGN JUDGMENTS

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Section 13 embodies the principle of res judicata in foreign judgments with some exceptions laid
down in Section 13 and subject to other conditions mentioned in Section 11, CPC. It embodies
the principle of Private International law that a judgment delivered by a foreign court of
competent jurisdiction can be executed and enforced in India.

In R. Viswanathan vs. Rukn-ul-Mulk Syed Abdul 1, it was held the foreign judgment is
conclusive as to any matter adjudicated upon by a competent foreign court. Section 13 of the
code in essence enacts a rule of res judicata in relation to foreign judgments. Hence, if a foreign
judgment is delivered by a court having jurisdiction in the matter, it would operate as res
judicata.

OBJECT OF RECOGNIZING FOREIGN

JUDGMENTS
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 needs to be enforced. The rules of private international law of
each state differ in many respect, but by the comity of nations require certain rules to be
recognized as common to civilized Jurisdictions. Further, if a particular legal system is aware of
the foreign law in a parallel jurisdiction, it will prove to be beneficial since it will help in
determining the updated notions of justice and public policy.

As has been rightly observed by a great jurist 2: "We are not so provincial as to say that every
solution of a problem is wrong because we deal with it otherwise at home"; and we shall not
brush aside foreign judicial process unless doing so "would violate some fundamental principle
of justice, some prevalent conception of good morals, some deep-rooted tradition of the common
weal."

To conclude, it can be said that the recognition of a foreign judgment is accorded not as an act of
courtesy but on considerations of justice, equity and good conscience.

1
 1963 SCR (3) 22
2
Cardozo, J. in Loucks v. Standard oil Co. of New York, (1918) 224 NY 99 at p.111.

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 JURISDICTION OF FOREIGN COURTS
In Sankaran Govindan v. Lakshmi Bharathi 3, the Supreme Court held that unless a foreign
court has jurisdiction in the international sense, a judgment delivered by that court would not be
recognized in India.

Generally, the following circumstances can give jurisdiction to foreign courts:

1. Where the person is a subject of the foreign country in which the judgment has been obtained;
2. Where he was a resident in the foreign country when the action was commenced and the
summons was served on him;
3. Where the person in the character of plaintiff selects the foreign court as the forum for taking
action in which forum he issued later;
4. Where the party on summons voluntarily appeared; and
5. Where by an agreement, a person has contracted to submit himself to the forum in which the
judgment is obtained.

WHEN A FOREIGN JUDGMENT IS

CONCLUSIVE?

3
(1975) 3 SCC 351 at p.368: AIR 1974 SC 1764 at p. 1766.

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Section 13 lays down the fundamental rules which should not be violated by any foreign court
while passing a decree or judgment. The decree or judgment of foreign court will be conclusive
except where it comes under any of the clauses (a) to (f) of Section 13, CPC. The essence of
Section 13 is that it provides that a foreign judgment may operate as res judicata except in the
following six cases:

(a)Foreign judgment not pronounced by a competent court:

The fundamental principle of law provides that the judgment or order passed by the court outside
its jurisdiction is void. Hence, a judgment of a foreign court will be conclusive between the
parties only when it is pronounced by a court of competent jurisdiction. It implies that 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. But, it should be remembered that what is conclusive is the judgment, i.e. the
final adjudication and not the reasons for the judgment given by the foreign court.

In Gurdyal Singh v. Raja of Faridkote4, A filed a suit against B in the court of the Native State
of Faridkot, claiming Rs. 60,000 alleged to have been misappropriated by B, while he was in A's
service at Faridkot. B did not appear at the hearing, and an ex parte decree was passed against
him. B was a native of another Native State Jhind. In 1869, he left Jhind and went to Faridkot to
take up service under A. But in 1874, he left A's service and returned to Jhind. The present suit
was filed against him in 1879; when he neither resided at Faridkot nor was he domiciled there.
On these facts, on general principles of International Law, the Faridkot court had no jurisdiction
to entertain a suit against B based on a mere personal claim against him. The decree passed by
the Faridkot court in these circumstances was an absolute nullity. When A sued B in a court in
British India, against B on the judgment of the Faridkot court, the suit was dismissed on the
ground that Faridkot court has no jurisdiction to entertain the suit. The mere fact that the
embezzlement took place at Faridkot, was not sufficient to give jurisdiction to the Faridkot court
would have had complete jurisdiction to entertain the suit and to pass a decree against him.

(b)Foreign judgment not given on merits of the case:

4
ILR (1895) 22 Cal 222

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A judgment is said to have been given on merits if the case when the judge, after taking evidence
and after applying his mind regarding the veracity or falsity of case, delivers it. A judgment
given in a case in which the defendant puts no appearance, no evidence is called or considered
and in which judgment is given by default by way of summary procedure, can be called as a
judgment not given on merits of the 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 veracity
or falsity of the claim of the plaintiff.

In the case of Gurdas Mann v. Mohinder Singh Brar5, 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 judgment delivered either in incorrect view of International law or

it fails to recognise the Law of India:

A Judgment which runs contrary to the fundamental rules of International law or a refuses to
recognize the law of India where such law is applicable is not conclusive and will be called as a
judgment per in curiem. Where a suit is instituted in England on the basis of the contract made in
India and the English court erroneously applied English law. In such a case, 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.6 Later on, this came to be called the doctrine of lex loci contractus).

In Narasimha Rao v. Venkata Lakshmi7, the Supreme Court held that when a foreign
judgment is founded on a jurisdiction or on a ground not recognised by the Indian law or
International 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.

5
AIR 1993 P H 92, (1993) 103 PLR 518
6
Star Printing Company v. Air Jamaica, 45 F. Supp. 2d. 625 (1999 U.S. Dist.)
7
(1991) 3 SCC451.

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(d)Foreign judgment opposed to Natural justice:

The fundamental principles of law and justice requires that the court rendering the judgment
must observe the minimum requirements of natural justice. It implies that the judgment must be
delivered by impartial persons, who acts in a fair and justified manner, without bias, and in good
faith. Also, it must give reasonable notice to the parties to the dispute and each party should be
given equal opportunity to present their case.

In Sankaran Govindan v. Lakshmi Bharathi8, the Supreme Court held that the expression
“Natural Justice” relates to the irregularities in the procedure rather than to the merits of the case.
A judgment of a foreign court, therefore, is conclusive even if it proceeds on an erroneous view
of the evidence or the law, if the minimum requirements of the judicial processes are assured.

(e)Foreign judgment affected by fraud:

It is a well-established principle of Private International Law that if a foreign judgment is

obtained by fraud, it will not operate as res judicata. Lord Denning 9 observed: “No judgment of a
court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud.”
Cheshire10 rightly states: “It is firmly established that a foreign judgment is impeachable for fraud
in the sense that upon proof of fraud it cannot be enforced by action in England.” All judgments
whether pronounced by domestic or foreign courts are void if obtained by fraud, for fraud
vitiates the most solemn proceeding of a court of justice. The Private International Law provides
that if the foreign judgments are obtained by fraud, it will not operate as res judicata since Fraud
and Justice can never dwell together.

In A.V. Papayya Sastry v. Government of Andhra Pradesh 11, the Apex Court observed that
fraud may be defined as an act of deliberate deception with the design of securing some unfair
benefit by taking undue advantage of another. A judgment, decree or order obtained by playing
fraud is a nullity and non est in the eyes of law. It can be challenged in any court at any time by
way of appeal, revision, writ or even in collateral proceedings.

8
AIR 1974 SC 1764
9
Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341 (345).
10
Private International Law, 8th Edn., p. 368.
11
1996 (3) ALT 10

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In Satya v. Teja Singh12, A husband obtained a decree of divorce against his wife from an
American court averring that he was domiciled in America. On observing that the husband was
not bona fide resident of America and that he had played on foreign court falsely representing to
it incorrect jurisdictional fact, the Apex Court held that 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.

(f)Foreign Judgment in breach of any law in force in India:

Where a foreign judgment is founded on a breach of any law in force in India, it would not be
enforced in India. It means that 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. It should be noted that the foreign law must not offend the public
policy of India.

It is for this reason only that a foreign judgment for a gaming debt or on a claim which is barred
by the Law of Limitation in India is not conclusive.

PRESUMPTION AS TO FOREIGN JUDGMENTS

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

12
1975 AIR 105, 1975 SCR (2) 97

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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.

In Narsimha Rao v. Venkata Lakshmi13, 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, may be enforced in India
in either of the ways:

1. By instituting a suit on such foreign judgment, or

2. By instituting execution proceedings.

SUIT ON 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.14In such a suit, the court shall not 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.15

EXECUTION PROCEEDINGS:

A foreign Judgment may also be enforced by proceedings in execution in certain specified cases
mentioned in Section 44-A of the Code. The said section provides that 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 itself.

13
1991 SCC (3) 451
14
Roshanlal v. Mohan Singh, (1975) 4 SCC 628.
15
A. 101, Limitation Act, 1963.

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In R.M.A. Vellavhi Achi v. R.M.A. Ramanathan Chettiar 16, it was held that when a foreign
judgment is sought to be executed under Section 44-A, it will be open to the judgment debtor to
take all objections which would have been open to him under Section 13 if a suit had been filed
on such judgment.

The List of the Reciprocating Territories as per the Provisions of Section 44 A of the Code of
Civil Procedure, 1908 are as follows:

1. United Kingdom

2. Singapore

3. Bangladesh

4. UAE

5. Malaysia

6. Trinidad & Tobago

7. New Zealand

8. The Cook Islands (including Niue) and The Trust Territories of Western Samoa

9. Hong Kong

10. Papua and New Guinea

11. Fiji

12. Aden.

In Marine Geotechnics LLC v. Coastal Marine Ltd. 17, it was held that if the foreign judgment
is from a non-reciprocating territory, the deceree-holder, i.e. the person in whose favour the
decree has been pronounced should file a suit in any India district court which is competent to
adjudge the matter.

16
AIR 1973 Mad 141.
17
014 (2) BOM CR 769.

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In Moloji Nar Singh Rao v. Shankar Saran18, 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 further opined that a fresh suit will have to be filed in India on the basis of
the foreign judgment.

So, basically, 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.

Whatever the case may be, 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.

LIMITATION PERIOD FOR ENFOCEMENT OF

FOREIGN JUDGMENTS
Since the provision of the CPC lay down that the foreign judgments from reciprocating territories
are enforceable in India in the same manner as the decrees passed by Indian courts, it becomes

18
AIR 1955 All 490

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necessary to look into the Limitation Act, 1963 to understand the period of limitation for the
enforcement of the foreign judgments. 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.

ENFORCEMENT OF FOREIGN ARBITRAL

AWARDS
An award passed by 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

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and Enforcement) Act (45 of 1961). The Foreign Awards (Recognition & Enforcement) Act was
followed by the Arbitration and Conciliation Act 1996, Section 48 of which provides for the
enforcement of foreign arbitral awards. However, due to some defects in the provisions of these
legislations, there was not much clarity about the issue of limitation period applicable to the
enforcement of a foreign award in India where there was various conflicting and diametrically
opposite decisions rendered by different High Courts in India. The issue has finally been settled
recently by the Supreme Court of India on 16 September 2020 in the case of Government of
India v. Vedanta Ltd.19 In this landmark judgment, the Supreme Court opined on various issues
related to the enforcement of foreign awards in India and delivered the following judgment: 

1. The enforcement of a foreign award under Part II of the Arbitration Act would be
covered by Article 137 of the Limitation Act which provides a period of three years,
starting from when the right to apply accrues.

2. Article 136 of the Limitation Act would not be applicable for enforcement of a foreign
award under Part II of the Arbitration Act since it is not a decree of a civil court in India.

3. Section 5 of the Limitation Act permits condonation of delay if the court in its discretion
is satisfied that there was a sufficient cause for not making the application within the
relevant limitation period. Holder of a foreign award under Part II of the Arbitration Act
may file an application under Section 5 of the Limitation for condonation of delay if
required.

4. The holder of a foreign award is entitled to apply for recognition and enforcement of the
foreign award by way of a composite petition under Part II of the Arbitration Act. If the
enforcing court is satisfied that the foreign award is enforceable, then under Section 49 of
the Arbitration Act, the award shall be deemed to be a decree of that court and the court
would then execute the award by taking recourse to Indian Law applicable to the
execution of decrees.

19
2020 SCC Online SC 749

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DOMESTIC JUDGMENT v. FOREIGN JUDGMENT
The principle of res judicata embodied in the CPC20 prohibits a court of competent jurisdiction
from trying a suit on a matter that has been substantially decided in a prior suit between the same
parties. Therefore, a decree or judgment passed by a superior court of a foreign country cannot
be enforced in India if it contradicts an earlier conclusive judgment passed by a competent court
in a suit between the same parties. A foreign judgment passed by a court of a non-reciprocating
country can only be enforced by filing a new suit in India where the foreign decree is merely a
piece of evidence with persuasive value. Therefore, the judgment debtor can raise the claim of
res judicata and stay the suit at the preliminary stage.

CONCLUSION
The above discussion serves as a warning to the Indian business sectors not to treat the summons
received from the foreign courts, in a casual manner. Rather, to contest at a later stage that the
foreign decision/decree is not based on “merits of a case” or it is 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.

20
Section 11, Code of Civil Procedure, 1908.

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Hence, it can be concluded that a judgment of foreign court creates estoppel or res judicata
between same parties, provided such judgment is not subject to exceptions under any of the
clauses (a) to (f) of Section 13 of the Civil Procedure Code. If any claim is made by any party
and subsequently abandoned at the trial of a suit and if the decree or judgment in that suit implies
that claim has not met with acceptance at the hands of the court, then the court must be deemed
to have directly adjudicated against it.

BIBLIOGRAPHY

PRIMARY SOURCES:
1. Civil Procedure Code, 1908.
2. Arbitration and Conciliation Act, 1996.
3. Limitation Act, 1963.
18
 4. Avtar Singh: Code of Civil Procedure, Central Law Publications, Allahabad.
5. C.K. Thakker & M. C. Thakker: Civil Procedure with Limitation Act, 1963, Eastern
Book Company, Lucknow.

SECONDARY SOURCES:
1. www.indiankanoon.org
2. http://www.legalservicesindia.com/articles/fore.htm
3. https://blog.ipleaders.in/decrees-judgments-enforcement/
4. https://www.scconline.com

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