Definitions (Sec.

2)

Decree, Judgement, Order

Decree
The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908.
A decree always follows judgement and is based upon a judgement. It is
divided into five types unlike judgement which is final in itself. A decree may
be final or preliminary. It is a formal declaration or adjudication and is
conclusive in nature. A decree is of three kinds namely, preliminary decree,
final decree and partly preliminary & partly final. A decree may be delivered
with an order. The decree contains the outcome of the suit and conclusively
determines the rights of the parties with regard to the issues in dispute in
the suit. After passing the decree, the suit stands disposed of since the rights
of the parties are finally determined by the court.

Deemed Decree
A decree shall be deemed to include the rejection of a plaint and any
question within Section 144 of Code of Civil Procedure,1908 but shall not
include:

Any such sentence(adjudication) from which it appears that an appeal lies as

an appeal from an order, or any such order of discharge(dismissal) of
default.

Kinds of Decrees
According to Section 2(2) of the Code of Civil Procedure,1908 decrees are
divided into three categories:

Preliminary Decree
In general sense, the word preliminary means preparation for the main
matter, initial, introductory, preparatory. In a legal sense, a preliminary
decree is a decree where further proceedings have to take place before the
suit can be completely disposed of. It decides the rights of the parties in
respect to all or any of the matters of discussion but it does not completely
dispose of the suit. In such a decree the rights and liabilities of the parties
are stated leaving the actual result or decision to be worked out in future
proceedings. A preliminary decree is passed in those cases where the
proceedings are to be carried out in two different stages. The first stage is
when the rights of the parties are adjudicated and the second stage is when
those rights are implemented or executed.

Final Decree
In general sense, the word ‘final’ means last, ultimate, conclusive or decisive.
In legal sense, a final decree is a decree which completely disposes of the
suit and settles all the questions in discussion between the parties and
nothing is left further for deciding thereafter. It is only said to be final when
such adjudication completely disposes of the suit.

Partly preliminary and partly final Decree

A decree is said to be partly preliminary and partly final when the court
decides two questions by the same decree. For instance, if the court passes a
decree in favour of one party along with a direction of inquiry for the other
party, the former part of the decree is final while the latter part is a
preliminary decree for which further proceedings have to take place. For
example, in a suit of possession of a property with company ‘C’, if the court
passes a decree of possession of the property in favour of the plaintiff and
directs an enquiry into the company ‘C’, then the former part of the decree is
final decree while the latter part is the preliminary decree.

The necessity of a Decree

The Code of Civil Procedure requires the passing of a decree in all the suits.
A decree is based upon judgement and it also follows a judgement which is
the reason why it is an indispensable and essential requisite. The decree is
indispensable or an absolute requisite. It is an essential part of the ultimate
outcome of the suit. An appeal can be made against a decree and not against
a judgement. If the decree is absent an appeal cannot be ‘put in motion’.

Contents of a Decree
A decree always follows the judgement, coincide with it and contains:

1. The suit’s number – Every suit has a particular number and it should
be mentioned in the decree.
2.  The names, description and registered addresses of the parties –
Every decree shall have the names of all the parties of that
particular suit, the proper description of the parties of the suit, and
the registered addresses of all the parties of the suit.
3. The particulars of the parties claims or defence – Every decree shall
contain the details of the claims and the defences the parties are
claiming as an outcome of the said suit.
4. The relief or the remedy granted to the aggrieved party – The
decree should in particular mention the relief granted to the
particular party as a remedy and not a reward.
5. The total amount of cost incurred in the suit-
1.   by whom; or
2.   out of what property; and
3.   in what portions are they paid or are to be paid.
6. The judgement’s date of pronouncement or delivery date of the
judgement – The decree should mention the date on which the
judgement was delivered followed by the decree.
7. The judge’s signature on the decree – The judge’s signature is an
essential and indispensable element of any decree. The signature of
the judge delivering the judgement is an essential requisite.
Drawing up of a Decree
Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree shall
be drawn within 15 days of the judgement. An appeal can be favoured or
preferred without filing a copy of a decree if it is not drawn within 15 days of
the judgement.

Decrees in Special cases

 In a lawsuit for the recovery or process of regaining or repossession
of an immovable property(real estate), the decree shall include a
description of such property so that it is sufficient to recognise or
identify it.
 In a decree for movable property(personality), it must mention the
exact amount of money to be paid as an alternative in case the
delivery is not made due to any reason either it be reasonable or
appropriate.
 In a decree for payment of money, the Court may order that the
payment of decretal amount i.e., the  amount mentioned in the
decree shall be:

1. postponed which is delayed to a future date; or

2. made by installments with or without interests.

 In a suit for the recovery or process of regaining or repossession of

immovable property, the Court may pass a decree- for possession
or gaining of property.
for past rents or mense profits. (mesne profits are the profits of an estate
received by a tenant in wrongful possession and recoverable by the landlord)
that is a final decree in respect of rent or mesne profits in accordance with
results of such enquiry as mentioned.

Rule 12A of the Code of Civil Procedure,1908 states that a decree for specific
performance of a contract for sale or lease of an immovable property which
can also be termed as real estate shall specify the exact period within which
the amount of money or other sum is to be paid by the purchaser or lessee.

Rule 13 of the Code of Civil Procedure,1908  states that the final decree shall
be passed or delivered in accordance with the result of preliminary enquiry
i.e., in a lawsuit for an account of any property either movable or immovable
and for its due administration under the decree of Court, before passing a
final decree, the court should pass a preliminary decree ordering accounts to
be taken and enquiries to be made.

Rule 14 of the Code of Civil Procedure,1908 states a decree in a pre-emption

suit, it is a suit where the displacement of a lower jurisdiction’s laws when
they conflict with those of a higher jurisdiction, where the purchase money
has not been paid into Court, shall specify a particular day on or before which
the purchase money has to be paid and direct that on payment to Court, the
defendant shall deliver property to the plaintiff, but if the payment is not
made on a specific day, the lawsuit shall be dismissed with costs. In cases
the Court has settled upon rival claims to pre-emption, the decree shall
direct:
The claim or defence of each pre-emptor shall take effect proportionately if
the claims decreed are equal in degree.

The claim or defence of the inferior pre-emptor will not take place till the
superior pre-emptor fails to make the payment if the claims decreed are
different in degree.

In a lawsuit for dissolving of partnership or taking of partnership accounts,

the Court can pass a preliminary decree before passing a final decree
declaring the exact shares of all the parties, fixing of a particular day on
which the partnership shall become dissolved and directing the accounts to
be taken and other necessary actions to be done. In a lawsuit for accounts
between a principal person and agent, the Court can pass a preliminary
decree before passing a final decree directing the accounts that have to be
taken and it can also provide special directions in regards to the mode of
taking accounts as well. In a decree passed in a lawsuit for partition of
property either movable or immovable or for separate possession of share in
the property, The decree shall declare the rights of several parties interested
in that property but shall direct partition or separation to be made by
collector and in other cases of immovable property in case the estate is
assessed to the payment of revenue to the government.

The Court shall pass a preliminary decree declaring all the rights of the
parties in estate and giving necessary directions and then the final decree is
passed, if separation or partition cannot conveniently be made without
further inquiry.

A decree where the defendant has been allowed leave or start with a 
counterclaim against the initial claim of the plaintiff shall state with what
amount is due to the plaintiff and what amount is due to the defendant
thereafter.

Judgement
The term Judgement is defined in Section 2(9) of the Code of Civil Procedure,
1908. A judgement contains facts of the case, the issues involved, the
evidence brought by the parties, finding on issues (based on evidence and
arguments). Every judgement shall include a summary of the pleadings,
issues, finding on each issue, ratio decidendi and the relief granted by the
court. On a daily basis, numerous judgements are pronounced and various
cases are disposed of. Judgements play a very important role in the working
of our judicial system because they act as precedents for cases to come in
the near future. A judge in the judgement pronounced, always states the
reasons for such a decision.

Pronouncement of a judgement
The word pronouncement means to make an official public announcement.
Pronouncement of a judgement means that after the hearing is completed
i.e. after the Court has heard the pleadings of the parties, the judgement
shall be announced by the Judges in an open Court, either at once or at
some future day, after providing due notice to the parties or their learned
counsels.

If a judgement is not pronounced immediately then it must be pronounced

within 30 days from the date of the conclusion of hearing. However,
sometimes it so happens that due to exceptional and some extraordinary
reasons like a bank holiday, strike or some other situation it may be
delivered within 60 days from the conclusion of the hearing. It is not
mandatory for a judge to read out the whole judgement and it would be
enough if only the final order is pronounced. The judge shall put the date on
which the judgement was pronounced along with his signature. Rule 2 Order
XX of Code of Civil Procedure, 1908 provides a judge with the right to
pronounce the judgement which is already written but is not pronounced by
his predecessor.

After the Amendment Act of 1976, the time limit was provided between the
hearing of the arguments and the pronouncement of the judgement. Prior to
this amendment no time limit was provided as such. Such a time limit was
provided because there was indefinitely continuous imposition from all over
India.

Copy of the judgement

Once the judgement is pronounced the copies of that particular judgement
should be immediately made available to the parties on payment of costs as
specified, by the party applying for such copy, of such charges as may be
specified in the rules and orders made by the High Court (H.C.) Such a rule is
specified in Order XX Rule 6-B of the Code of Civil Procedure, 1908.

Contents of the judgement

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

Judgements of a Court of Small Causes are satisfactory if they contain the

points for determination and the decision thereon.

Judgments of other Courts shall contain:

 Summary of the pleadings which is a concise statement of the case;

 Issues which are the points for determination;
  Findings on each issue and the decision thereon;
 Ratio decidendi (reasons for such a decision); and
 The remedy, which is the relief granted.

Alteration of a judgement
Once a judgement is dated and signed by the judge it can only be altered or
amended if:

There are arithmetical or clerical errors. (clerical errors refer to the errors
made by clerks and arithmetical errors refer to errors made in numbers such
as addition, subtraction, multiplication and division). There are errors due to
accidental slips or omissions (these errors take place when some essential
element is left unnoticed) (Section 152) on review (Section 114).

Foreign Court, Foreign Judgement (Sec. 13)

The Indian Code of Civil Procedure, 1908 (CPC) lays down the procedure for
enforcement of foreign judgments and decrees in India. CPC, 1908 had
defined the following as-

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

Section 2(6) “foreign judgment” means the judgment of a foreign Court.

Nature and Scope of Foreign Judgments

Section 13 embodies the principle of res judicata in foreign judgments. 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.

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
needed to be enforced. The rules of private international law of each state
differ in many respects, but by the comity of nations certain rules are
recognized as common to civilized Jurisdictions. Through part of the judicial
system of each state these common rules have been adopted to adjudicate
upon disputes involving a foreign element and to enforce judgments of
foreign courts, or as a result of International conventions. Such a recognition
is accorded not as an act of courtesy but on consideration of basic principles
of justice, equity and good conscience. An awareness of foreign law in the
parallel jurisdiction would be a useful guideline in determining our notions of
justice and public policy. We are a Sovereign Nation within our territory but “
it is not derogation of sovereignty to take accounts of foreign law”.
“We are not provincial as to say that every solution of the problem is wrong
because we deal with it otherwise at home”.Therefore, we shall not brush
aside foreign judicial processes unless doing so, “would violate some
fundamental principle of justice & deep-rooted traditions of common weal”.

Jurisdiction of Foreign Courts

In Private International Law, unless a foreign court has jurisdiction in the
international sense, a judgment delivered by that court would not be
recognized in India. But it considers only the territorial competence of the
court over the subject-matter and defendant. Its competence or jurisdiction
in any other sense is not regarded as material by the court in this country.

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 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.

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 to
competent jurisdiction, unless the contrary appears on the record; but such
presumption may be displaced by proving want of jurisdiction[6].

Conclusiveness of Foreign Judgments

Section 13 lays down the fundamental rules which should not be violated by
any foreign court in 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.

When foreign judgment is 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 merits 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 recognize the law of 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) Were it sustains a claim founded on a breach of any law in force in India.
Foreign Judgments when cannot be Enforced in India

Before enforcing a foreign judgment or decree, the party enforcing it must

ensure that the foreign judgment or decree must not fall under these 6
cases. If the foreign judgment or decree falls under any of these tests, it will
not be regarded as conclusive and hence not enforceable in India. Under
Section 13, there are six cases when a foreign judgment shall not be
conclusive. Six tests are discussed below.

Foreign Judgment not by a competent court

It is a basic fundamental principle of law that the judgment or order passed
by the court which has no jurisdiction is void. Thus, a judgment of a foreign
court to be conclusive between the parties must be a judgment pronounced
by a court of competent jurisdiction. 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.

In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar, it was

alleged by the respondent that since he was not a subject of the foreign
country, and that he had not submitted to the jurisdiction of the Foreign
Court (Singapore Court), the decree could not be executed in India. The
Appellant, in defense of this argument, stated that the Respondent was a
partner of a firm which was doing business in Singapore and had instituted
various suits in the Singapore Courts. Therefore, the Respondent had
accepted the Singapore Courts jurisdiction. The Court held that it was the
firm which had accepted the jurisdiction of the foreign Court and the
Respondent, in an individual capacity, had not accepted the jurisdiction.
Thus, the High Court held that the decree against the Respondent was not
executable.

PROPOSITION

Under Section 13(a) of CPC, the following proposition may be laid

 In case of actions-in-personam, a foreign court may pass an order

or judgment against an Indian defendant, who is served with the
summons but he remains ex parte. But it may be enforceable
against such Indian defendants, by fulfilling any of the following
conditions.
 If the person is a subject of the foreign country in which the
judgment or decree has been obtained against him on prior
occasions.
 If the person is a resident in foreign country when the action is
commenced.
 If a person selects the foreign Court for taking action in the capacity
of a plaintiff, in which he is sued later
 If the party on being summoned voluntarily appears before the
foreign court
 If by an agreement a person has contracted to submit himself to the
Court in which the judgment is obtained.
Foreign Judgments not on Merits
In order for a foreign judgment to operate as Res Judicata, it must have
been given on merits of the case. A judgment is said to have been given on
merits when after taking evidence and after applying his mind regarding the
truth or falsity 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 truth or falsity of the plaintiff”s claim.

In the case of Gurdas Mann v. Mohinder Singh Brar,he 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.

PROPOSITION

Under Section 13(b) of CPC the following proposition may be laid

A judgment or decree passed by a Foreign Court against an Indian

defendant, who has remained ex-parte, may not be enforceable against him,
unless it can be shown that the said judgment was passed after investigation
into the plaintiff’s claim.

Foreign Judgments against International or Indian Law

A Judgment which is contrary to the basic fundamental rules of International
law or a refusal to recognize the law of India where such law is applicable is
not conclusive. Where a suit instituted in England on the basis of contract
made in India, the English court erroneously applied English law, thus, 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 (lex loci
contractus).[12]

In the case of I & G Investment Trust v. Raja of Khalikote, a suit was filed
under the English Jurisdiction to avoid the consequences of the Orissa Money
Lenders Act. The Court held that the judgment was passed on an incorrect
view of the international law. The Court further observed that, although the
judgment was based on the averment in the plaint that the Indian law did
not apply, however, there was no “refusal” to recognise the local laws by the
Court.

PROPOSITION

Under Section 13(c) of CPC, the following proposition may be laid

A judgment passed by a foreign Court upon a claim for immovable property,

situated in the Indian territory may not be enforceable since it violates
International Law. A judgment passed by the foreign Court, where before a
contrary Indian law had been shown, but the Court had refused to recognize
such law, then that Judgment or decree may not be enforceable, except
where the proper law of contract is the foreign law.

Foreign Judgments opposed to the principle of Natural

Justice
It is the essence of a judgment of court that it must be obtained after due
observance of the judicial procedure i.e., the court rendering the judgment
must observe the minimum requirements of natural justice. It must be
composed of impartial persons, who must act in a fair and justified manner,
without bias, and in good faith, it must give reasonable notice to the parties
to the dispute and each party should be given equal opportunity to present
their case. A judgment which suffers from such infirmities on the part of a
judge will be regarded as a nullity and the trial “coram non judice”

In the case of Lalji Raja & Sons v. Firm Hansraj Nathuram, the Supreme
Court held that just because the suit was decreed ex-parte, although the
defendants were served with the summons, does not mean that the
judgment was opposed to natural justice.

PROPOSITION

Under Section 13(d) of CPC, the following proposition may be laid The
foreign court must follow the principle of natural justice while delivering the
judgment. Judgement must be impartial, given fairly, moreover, the parties
to the dispute should be given appropriate notice of the initiation of legal
proceedings. Equal opportunity of presenting their case, in order to avoid any
allegation of not fulfilling the principles of natural justice in case the
judgment or decree comes to the Indian court for enforcement. Unless this is
done the judgment or decree passed by a foreign Court may violate the
Principles of Natural Justice.

Foreign judgment obtained by fraud

It is a well settled principle of Private International Law that if foreign
judgments are obtained by fraud, it will not operate as res judicata.

It has been said “Fraud and Justice never Dwell together” (fraus et jus
nunquam cohabitant); or “ Fraud and deceit ought to benefit none” (fraus et
dolus nemini patrocinari debent).

In the case of Satya v. Teja SingH, the 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.

In S.P. Chengalvaraya Naidu v. Jagannath, Supreme Court held that it is a

well 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.

PROPOSITION
Under Section 13(e) of CPC, the following proposition may be laid -Where the
plaintiff misleads the Foreign court and the judgment or decree is obtained
on that basis, the said Judgment may not be enforceable, however, if there is
some error in the judgment then the Indian courts will not sit as a Court of
appeal to rectify the mistake or error.

Foreign Judgments founded on breach of Indian Law

When a law in force in India is wrongly construed so as to form the reasoning
behind a judgment delivered by a foreign court, in such cases the
enforceability of the foreign judgment in Indian courts will be under question.

China Shipping Development Co. Limited v. Lanyard Foods Limited, wherein

the High Court held that a petition for winding up of an Indian company
would be maintainable on the basis of judgment of foreign Court. In this
case, the foreign company delivered cargo to the Indian company in
compliance with requests made by the Indian company and in the process
the foreign company had incurred certain liabilities towards third parties and
it had to pay certain amount in legal proceedings and therefore, in terms of
the letter of indemnity issued by the respondent Indian company, the foreign
company claimed the amount from the respondent Indian company, which
denied its liability and therefore the foreign petitioner company initiated legal
proceedings against the Indian company in the English Courts as provided in
the Letter of Indemnity.

The respondent Indian company did not file defence and therefore the
English Court passed an ex-parte order awarding a certain amount in favor of
the petitioner foreign company on consideration of evidence and on the
merits of the claim filed by the foreign company. By a notice issued under
sections 433 and 434 of the Companies Act, 1956, the petitioner foreign
company called upon the respondent Indian company to pay the amount due
under the order of the English Court.

After the respondent Indian company failed to honour the amount, the
petitioner Foreign Company filed a petition for winding up of the Indian
company. In the above circumstances since the records of the case
manifestly revealed that the respondent Indian company was unable to pay
its debts, the petition for winding up was admitted vide order dated 4.4.2007
under sections 433 and 434 of the Companies Act, 1956.

PROPOSITION

Under Section 13(f) of CPC, the following proposition may be laid -A

judgment passed by a foreign court, which breaches any law in force in India
may not be enforceable, except where it is based on a contract having a
different “proper law of the contract”.

Enforcement of Foreign Judgments

A foreign Judgment which is conclusive and does not fall within section 13 (a)
to (f), may be enforced in India in either of the following ways.

By instituting execution proceedings

A foreign Judgment may be enforced by proceedings in execution in certain
specified cases mentioned in Section 44-A of the CPC.

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

territory[20].-(1) 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.

(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 I: “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 II: “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 penalties, but shall in no case include an
arbitration award, even if such an award is enforceable as a decree or
judgment.

Moloji Nar Singh Rao vs Shankar Saran, 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 ruled that a fresh suit
will have to be filed in India on the basis of the foreign judgment.”

Therefore 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. This is done by the methods discussed below.

By instituting a suit on such foreign judgment

Where a judgment or decree is not of a superior court of a reciprocating

territory, a suit has to be filed in a court of competent jurisdiction in India on
such foreign judgment. The general principle of law is that any decision of a
foreign court, tribunal or any other 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
between the same parties. Such a suit must be filed within a period of 3
years from the date of judgment[23].

In Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering

Ltd, the Bombay High Court observed that in case of a decree from a non-
reciprocating foreign territory, the decree-holder should file, in a domestic
Indian court of competent jurisdiction, a suit on that foreign decree or on the
original, underlying cause of action, or both.

However, in both the cases, 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.

Foreign Award
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 and Enforcement) Act
(45 of 1961)

Effect of Foreign Judgment

A foreign judgment is conclusive for any matter adjudicated between the
parties. Such judgment is conclusive and would create Res judicata between
the same parties or between parties under whom they or any of the claims.

Limitation period for Enforcement of Foreign Judgments

As per the provisions of the Code, foreign judgments from reciprocating
territories are enforceable in India in the same manner as the decrees
passed by Indian courts. 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.

Other definitions: Affidavit, Suit, Plaint, Written

Statement
Affidavits – Order 19
Affidavits are dealt under Order 19 of the Code. It is a sworn statement
made by the person who is aware of the facts and circumstances which have
taken place. The person who makes and signs is known as ‘Deponent’. The
deponent makes sure that the contents are correct and true as per his
knowledge and he thereby concealed no material therefrom. After signing the
document, the affidavit must be duly attested by the Oath Commissioner or
Notary appointed by the court of law.

The person who gives attestation to the affidavit shall make sure that the
sign of the deponent is not forged. The affidavit shall be drafted as per the
provisions of the code. It must be paragraphed and numbered properly.

Even though the “affidavit” has not been defined in the code, it basically
means “a sworn statement in writing made specifically under oath or
affirmation before an authorized officer or Magistrate.”

Essentials

There are some basic essentials which are required to be fulfilled while
submitting the affidavit in the court:

 It must be a declaration by a person.

 It shall not have any inferences, it shall contain facts only.
 It must be in the first person.
 It must be in writing.
It must be statements which are taken under oath or affirmed
before any other authorized officer or a Magistrate.
Contents of affidavit

As per Rule 3, an affidavit shall contain only those facts to which the
deponent is aware of as true to his personal knowledge. However,
interlocutory applications can be filed wherein he can admit his belief.

Evidence on affidavit
As per section 3 of the Evidence Act, affidavits are not considered as
evidence. When there is a need to prove the facts, oral evidence is normally
taken into consideration by the court. However, Rule 1 Order 19 is invoked
by the Court when it finds that it is necessary to make an order for any
particular fact which may be proved by affidavit. If a person provides
evidence under the affidavit then the opposing counsel has the right to cross-
examine or reply-in-affidavit.

Further, the person who is making an affidavit shall put on those facts only
to which he has true personal knowledge. If he gives a statement, not to his
personal knowledge then in such case he shall mention the true source. The
counsel shall advise the deponent to make sure that he puts facts which he
knows rather than what he believes.
The court can reject the affidavit if it is not properly verified and not in
conformity with the rules of the code. At the same time the court can also
give an opportunity to the party to file the affidavit properly.

In the interlocutory applications like interim injunctions, the appointment of

receiver, attachment of property wherein the rights of the parties are not
determined conclusively, can be decided on the basis of the affidavit.

False affidavit
Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an
offence. Giving a lenient view will undermine the value of the document and
it will harm the proceedings and will provide no justice to the parties.
Criminal contempt of court proceedings can be initiated by the court against
the person who files false affidavits in the court of law. Strict actions are
taken against public officials who files false affidavits.

As per section 193 of the IPC:

 a person who intentionally gives false evidence or fabricates false

evidence during a judicial proceeding, he shall be punished with
seven years of imprisonment and fine;
 and whoever intentionally gives or fabricates false evidence in any
other case, shall be punished with imprisonment of either
description for a term which may extend to three years, and shall
also be liable to fine.

Meaning of suit
The word suit has not been defined anywhere in the Code, but it is a
proceeding which is commenced by presentation of a plaint. In Hansraj
Gupta and Ors. vs. Official Liquidators of the DehraDun-Mussoorie Electric
Tramway Co.Ltd.,  the Privy Council has defined the expression “suit” as a
civil proceeding instituted by presentation of a suit.

In Pandurang Ramchandra vs. Shantibai Ramchandra,  the Supreme Court

has stated suit is to be understood to apply on any proceeding in a court of
justice by which an individual pursues that remedy which the law affords.

Plaint
A Plaint is a legal document that contains the content of any civil suit which
shows the Plaintiff’s claim after filing suit. The plaintiff is the first step of the
Plaintiff in the form of a legal document for the commencement of suit and it
shows what a Plaintiff wants from that suit. The concept of a plaintiff is
mentioned in the Civil Procedure Code. Through the help of the plaintiff, the
plaintiff narrates or describes the cause of action and related information
which is considered as essential from the viewpoint of the suit.

In the case of the plaintiff, the cause of action consists of two divisions, first
is the legal theory (the factual situation based on which the plaintiff claims to
have suffered) and second is the legal remedy that the plaintiff seeks from
the court. A plaint is considered an important concept because it is the
foremost and initial stage to initiate any lawsuit and helps to find a civil court
of appropriate jurisdiction.

Order VII of the Code of Civil Procedure deals, particularly with plaint. In
Order VII of CPC, there are many different rules which deal with different
constituents of plaint. Rules 1 to 8 deal with the particulars of the plaint. Rule
9 of CPC deals with how the plaint will be admitted and after that Rule 10 to
10-B talks about the return of the plaint and the appearance of parties. And
the main Rules i.e 11 to 13 deal with the rejection of the plaint and in which
circumstances the plaint can be rejected.

Section 26 of the Code of Civil Procedure states “Every suit shall be instituted
by the presentation of a plaint or in such other manner as may be
prescribed.” This section clearly shows that plaint is very much necessary for
the establishment of a suit before the civil or commercial court.

Necessary Contents of A Plaint

A plaint is a legal document that contains a lot of necessary contents in the
absence of which, it cannot be considered as a plaint. The contents necessary
for a plaint are mentioned in Rules 1 to 8 of Order VII of CPC. These are
mentioned below:

 Plaint should contain the name of the commercial or civil court

where a suit will be initiated.
 Plaint should contain details of the plaintiff such as the name,
address, and description.
 Plaint should contain the name, residence, and description of the
defendant.
 When a plaintiff has some defects or problems in health or any type
of disability, the Plaint should contain a statement of these effects.
 Plaint should contain the facts due to which cause of action arises
and where the cause of action arises it should also be mentioned.
 Plaint should not only mention facts due to which cause of action
arises but also those facts which help in recognizing the jurisdiction.
 Plaint should also contain about that relief which the plaintiff seeks
from the court.
 When the plaintiff is ready to set off a portion of his claim, the Plaint
should contain that amount which has been so allowed.
 Plaint should contain a statement of the value of the subject-matter
of suit not only for the purpose of jurisdiction but also for the
purpose of court-fees.At last, the content that should be on plaint is
the plaintiff verification on oath.
This shows that the plaint is a necessary component for the successful
initiation of suits in commercial or civil courts and plays a very important role
throughout the suit. Some additional particulars which were not mentioned
above include the following: Plaintiff shall state the exact amount of money
to be obtained from the defendant as given under Rule 2 of order VII
whereas Rule 3 of order VII of CPC states that when the plaint contains
subject matter of immovable property, then the property must be duly
described.
Important Concepts

Res Sub-Judice and Res Judicata (Sec. 10,11)

Nature, Scope and Objective

The principle of res sub-judice prevents the court from proceeding with the
trial of any suit in which the matter in issue is directly or substantially the
same with the previously instituted suit between the same parties and the
court where the issue is previously instituted is pending has the power to
grant the relief sought.

This rule is applicable to the trial of the suit and not the institution. It does
not restrict the court from passing interim orders like injunction or stay.
However, it applies to revisions and appeals.

The purpose behind this rule is to prevent multiplicity of cases in courts. It is

also sought to prevent the plaintiff from getting two separate decisions from
different courts in his favour or two contradictory judgements. It also
ensures to protect the litigant from unnecessary harassment. The policy of
law is to restrict the plaintiff to one legislation, thus obviating the possibility
of two conflicting verdicts by one and the same court in respect of the same
relief.

Conditions
Section 10 of the Civil Procedural Code, 1908 deals with the conditions
required to apply the principle of res sub judice. The conditions in the
process of application of res sub-judice are:

Where the matter in issue is same

Section 10 clearly states that the matter in issue in both the suits must be
directly or substantially be the same.In other words there must be two suits
one that is previously instituted and another that is subsequently substituted.
The issues of both the suits should be the same to get the benefit of this
principle, it is not sufficient if only one or two issues are common. In the
circumstances where the entire issues are not the same, the court may
exercise its power under Section 151 and stay the trial in a subsequent suit
or the trial of the suit may be consolidated. The power of courts to stay the
trial under Section 151 is discretionary in nature and can be exercised only
when there is an abuse of process of court and if it defeats the ends of
justice.

According to Indian Evidence Act, 1872 “matter in issue” are of two kinds:

Matter directly and substantially in issue– Here “directly” means immediately

i.e. without any intervention. The word “substantially” implies essentially or
materially.
Matter collaterally and incidentally in issue– It is just contrary to the matter
directly or substantially in issue.

Where the parties in suits are same

The two suits should have the same parties or their representatives.

 Where the title of the suit is same

The title of both the suits for which the parties are litigating should also be
same.

 Where the suit must be pending

The former suit must be pending in the court while the latter suit is
instituted. The word pending is for the previously instituted suit, where the
final decision has not been arrived at.

 In a competent court
Section 10 also specifies that the former suit must be pending before a court
which is competent to carry out the trial. If the former suit is pending before
an incompetent court, no legal effects can flow from it.

Illustrations:

‘X’ and ‘Y’ decide to enter into a contract for the sale of machines. ‘X’ is the
seller and ‘Y’ is the purchaser. Y defaulted in paying the amount of the sale
to X. X first filed a suit for recovery of the entire amount in Bangalore.
Subsequent to this, X filed another suit at Bombay High Court demanding Rs.
20,000 as outstanding balance. In X’s suit Y took the defence that X’s suit
should be stayed since both the suits are on similar issue. However, the
Bombay court held that since X’s first suit and the second suit have similar
issues similar to the first suit, the subsequent suit is liable to be stayed.

‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the
agent then filed a suit for balance of accounts in Patna. ‘M’ sues the agent ‘P’
for accounts and his negligence in Odisha; while the case was pending in
Patna. In this case, Patna court is precluded from conducting trial and can
petition Odisha Court to direct a stay of proceedings in Patna Court.

The moment the above conditions are satisfied, a court cannot proceed with
the subsequently instituted suit since the provisions contained in Section 10
are mandatory and the court cannot exercise its discretion. The order of stay
can be made at any stage of the proceedings.

However, Section 10 takes away the power of the court to examine the
merits of the case thoroughly. If the court is satisfied with the fact that the
subsequent suit can be decided purely on legal point, it is open for the court
to decide in such a suit.

Test
The test of applicability for Section 10 is whether the decision in a former
given suit would operate as res judicata(decided case) in the subsequent
suit. It this happens, then the latter suit must be stayed. This can also be
inferred from S.P.A Annamalay Chetty vs. B.A Thornbill.
Suit pending in foreign court
The explanation clause of Section 10 clearly provides that there is no
limitation on the power of an Indian court to try a subsequent instituted suit
if the previously instituted suit is pending in a foreign suit. This also means
that the cases can be carried on simultaneously in two courts.

Inherent power to stay

The word inherent has very wide meaning which includes an inseparable part
of something or an attribute or quality which is permanent and essential. It is
something which is intrinsic and attached to a person or object. Therefore,
inherent powers are the powers of the courts which are inalienable i.e.,
something which can be separated or taken away from the courts and they
exercise it in order to provide complete justice to the parties.

Even where the provisions of Section 10 do not strictly apply, a civil court
has inherent power under Section 151 to stay a suit to achieve justice.
Additionally courts can also consolidate different suits between the same
parties in which the matter of issue is substantially the same. In  Bokaro and
Ramgarh Ltd. vs. State of Bihar and Another(1962)  the matter in issue was
regarding the ownership of a property. The court in this case used its power
and consolidated different issues having the same matter.

Consolidation of suits
The objective behind Section 10 is to avoid two contradictory decisions in the
same matter by different courts. To overcome this the courts can pass an
order of consolidation of both the suits. In the case of Anurag and Co. and
Anr. vs. Additional District Judge and Others, it was explained that
consolidation of suits is ordered under Section 151 for meeting the ends of
justice as it saves the party from a multiplicity of cases, delays and
expenses. The parties are also relieved from producing the same evidence at
two different places.

Effect of contravention
Any decree passed in contravention of Section 10 is not null and therefore
cannot be disregarded completely. It is to be clearly understood here that it
is only the trial and not the institution of the subsequent suit which is barred
under this section. But this right which is given in favour of parties can be
waived by them. Hence, if the parties in a suit decides to waive their rights
and ask the court to proceed with the subsequent suit, they cannot
afterwards challenge the validity of the subsequent proceedings.

Interim orders
Interim orders are the temporary orders which are passed for a limited
duration just before the final order. An order of stay under Section 10 does
not take away the power of the court to pass interim orders. Therefore, the
courts can pass such interim orders as it thinks fit like attachment of
property, injunction etc.
Res Judicata meaning
Res means “subject matter” and judicata means “adjudged” or decided and
together it means “a matter adjudged”.

In simpler words, the thing has been judged by the court, the issue before a
court has already been decided by another court and between the same
parties. Hence, the court will dismiss the case as it has been decided by
another court. Res judicata applies to both civil and criminal legal systems.
No suit which has been directly or indirectly tried in a former suit can be tried
again.

Res Judicata example

‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the
ground as the area of the land was less than the mentioned on the lease. The
Court found that the area was greater than shown in the lease. The area was
excess and the principles of res judicata will not be applied.

In a case, ‘A’ new lawsuit was filed in which the defendants requested that
the Court dismiss the lawsuit with a plea of res judicata. She was barred
from bringing a claim of res judicata because her previous claim was
dismissed for fraud. The Court said that the defence of res judicata must be
proved by evidence.