DHARMASHASTRA NATIONAL LAW

UNIVERSITY, JABALPUR
(Session 2020-2021)

RECOGNITION AND ENFORCEMENT OF

FOREIGN JUDGEMENT IN INDIA

Submitted To: Submitted By:

Dr. Praveen Tripathi Sanskrati Jain

[Associate Professor BAL/116/20

of Law] Semester VI (Sec. B)

 ACKNOWLEDGEMENT

The completion of this project required counselling and assistance from many people and I
am thankful towards them for their counselling in my project.

I would like to express my deep gratitude towards my teacher Associate professor Dr.
Praveen Tripathi, who took acute interest in my project and guided me all along. I am feeling
extremely privileged to have him as my instructor in the project. I owe my deep gratitude to
the vice-chancellor Prof. (Dr.) V. Nagraj for his valuable support throughout the project. This
project helped me in gathering a lot of knowledge and becoming more aware of things related
to my topic.

I would like to extend my gratefulness to my parents and friends for their valuable support
and advice.

I am making this project not only to get marks but also to enhance my knowledge. At the end

I would like thank everyone who helped me and invested their valuable time for this project .

Sanskrati Jain
 TABLE OF CONTENTS
1. INTRODUCTION...............................................................................................................................4

2. FOREIGN JUDGMENTS AND FOREIGN COURTS............................................................................5

3. RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS AND DECREES.....................7

 Recognition of Foreign Judgements................................................................................................7

o Judgement must be delivered by a Court of Competent Jurisdiction................................................8

o Judgement must be based on merits.................................................................................................8

o Judgement must be founded as per the correct view of international law.........................................9

o Judgement should not be opposed to natural justice........................................................................9

o Judgment should not be obtained by fraud.......................................................................................9

o Judgment should not be founded on a breach of any law in force in India.....................................10

 Enforcement of Foreign Judgements.............................................................................................10

o By Instituting suit on Foreign Judgment.........................................................................................10

o By Instituting Execution Proceeding...............................................................................................11

o Analysis..........................................................................................................................................11

4. CHALLENGES FACED IN ENFORCEMENT OF FOREIGN DECREES.............................................12

 Reciprocity................................................................................................................................12

 Jurisdictional Issues....................................................................................................................13

 Compliance with Indian Law.......................................................................................................13

 Procedural Delays......................................................................................................................14

 Language Barriers......................................................................................................................15

 Lack of Awareness......................................................................................................................15

5. SOLUTIONS TO THE CHALLENGES FACED IN ENFORCEMENT OF FOREIGN DECREES..........16

 Increasing Bilateral Engagements.................................................................................................16

 Simplification of Procedure.........................................................................................................17

 Awareness through Advocates Training Programmes......................................................................18

 Appointment of Translators and Interpreters..................................................................................18

 Alternative Dispute Resolution Mechanisms.................................................................................19

6. CONCLUSION.................................................................................................................................19
 INTRODUCTION
A decree as defined under section 2(2) of Code of Civil Procedure, 1908 1, is a formal
expression which determines the interest of both parties in a conclusive manner, with regards
to any disputed matter in a civil suit. Significantly, a decree is a formal expression of
adjudication by which the court determines the rights of parties regarding the matter in
dispute. A decree shall be deemed to include rejection of a plaint and determination of any
question under section 1442 of the Code.

Decrees determine the rights of the parties. 'Right' means substantive rights and not merely
procedural rights. It must have determined the rights of the parties about all or any of the
matters in controversy in the suit. The judgement of a foreign court is enforced on the
principle that where a Court of competent jurisdiction has adjudicated upon a claim, a legal
obligation arises to satisfy that claim.

The rules of private international law of each State must in the very nature of things differ,
but by the comity of nations certain rules are recognized as common to civilized jurisdictions.
Such a recognition is accorded not as an act of courtesy but on considerations of justice,
equity, and good conscience. An awareness of foreign law in a parallel jurisdiction would be
a useful guideline in determining our notions of justice and public policy. We are sovereign
within our territory but "it is no derogation of sovereignty to take account of foreign law.3

In general, the recognition and enforcement of foreign judgments are governed by the laws of
the country where enforcement is sought. The rules for enforcement vary by country, but in
most cases, the enforcing court will require that the judgement debtor has been properly
served with the original court documents and given an opportunity to defend the case in the
foreign court. The issue of domicile can arise in the enforcement of foreign judgments,
particularly in cases where the defendant is not present in the foreign jurisdiction where the
judgement was issued.

One of the key issues that can arise in this context is determining whether the judgement
debtor has a domicile or assets in the country where enforcement is sought. If the debtor is

1
Code of Civil Procedure,1908, § 2(2), No. 05, Imperial Legislative Council, 1908 (India).
2
Code of Civil Procedure,1908, § 144, No. 05, Imperial Legislative Council, 1908 (India).
3
Gupta, V. K., Mulla, the Key to Indian Practice: A Summary of the Code of Civil Procedure, India: Lexis Nexis
Butterworths, (2011)
not domiciled in that country and does not have assets there, it may be difficult or impossible
to enforce the foreign judgement. In some cases, the enforcing court may require the
judgement creditor to establish that the judgement debtor has assets in the country where
enforcement is sought.

This can involve investigating the debtor's financial affairs or seeking assistance from the
courts in the foreign jurisdiction where the judgement was issued. Overall, the issue of
domicile can be a complex one in the enforcement of foreign judgments, and it is important
to seek the advice of experienced legal professionals who are familiar with the relevant laws
and procedures in the relevant jurisdictions.

The notion behind the enforcement of a decree or judgement awarded by a foreign court can
be found in the principles of private international law that a judgement delivered by a foreign
court of competent jurisdiction be enforced by an Indian court and will operate as res judicata
between the parties thereto unless that is vitiated. So, it is very common to encounter
problems like reciprocity, jurisdictional issues, compliance with enforcing a country's law,
language barriers etc.

The paper looks forward to delving into the problems like what is the significance of
reciprocity in the recognition and enforcement of foreign decrees? What are the challenges
and barriers to enforcing foreign decrees? How can these challenges be addressed to improve
the effectiveness of foreign decree enforcement? What are the rules governing jurisdictional
issues in the recognition and enforcement of foreign decrees? How do courts determine
whether they have jurisdiction to enforce a foreign decree, especially when the judgement
debtor is not present in the jurisdiction?

FOREIGN JUDGMENTS AND FOREIGN COURTS

A Foreign Court means a court situate outside India and not established or continued by the
authority of the Central Government.4 For example, courts established in other countries such
as Australia, England, France, Germany etc. are considered as Foreign Courts. The Supreme
Court in Lalji Raja and Sons v Hansraj Nathuram 5 highlighted the two essential conditions
mentioned in the section for a court to be considered as a Foreign Court. The Court held that
two essential conditions are:

4
Code of Civil Procedure,1908, § 2(5), No. 05, Imperial Legislative Council, 1908 (India).
5
Lalji Raja and Sons v Hansraj Nathuram, 1971 AIR 974
 (i) it must situate outside India, and
(ii) it must not have been established or constituted by the Central Government.

The Judgments passed by these Foreign Courts are called Foreign Judgments. They have
been defined under section 2(6) of the Act. In other words, a foreign judgment is an
adjudication by a foreign court upon a matter before it.6

The judgments of those foreign courts will be binding which were equivalent or superior in
terms of jurisdiction with respect to Indian Courts and have met the conditions under Section
13 of the Code7. Section 13 of the Code of Civil Procedure embodies the principle of res
judicata in foreign judgments. The Code provides that foreign judgments may operate as res
judicata except in the six cases specified in the section 13 of the Code of Civil Procedure. The
Foreign Court must be competent to try the suit, not only as regards pecuniary jurisdiction
and subject matter of the suit, but also with reference to its territorial jurisdiction and the
competency of the jurisdiction of foreign courts which is to be judged not by the territorial
law of the foreign state but by the rules of Private International Law.8

A foreign judgment must be by a court competent both by the 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 and to be conclusive the judgment of the foreign Court
must have directly adjudicated upon a matter, the adjudication must be between the same
parties, and the foreign Court must be a court of competent jurisdiction9

The judgment of a foreign court is enforced on the principle that where a court of competent
jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim, a
legal obligation arises to satisfy that claim. The foreign judgment or decree and on foreign
law on which it is based which must be applied in India must not offend against our public
policy.

The validity of a foreign judgment will be determined on the terms of Section 13 of the Code
of Civil Procedure. If the judgment falls under any of the clauses (a) to (e) of section 13, it

6
Brijlal Ramjidas v Govindram Gobordhandas, AIR 1947 PC 192
7
Code of Civil Procedure,1908, § 13, No. 05, Imperial Legislative Council, 1908 (India).
8
Gupta, V. K., Mulla, the Key to Indian Practice: A Summary of the Code of Civil Procedure, India, Pg. no. 406,
Lexis Nexis Butterworths, (2011).
9
R. Viswanathan vs Rukn-Ul-Mulk Syed Abdul Wajid, 1 1963 SCR (3) 22
will cease to be conclusive as to any matter thereby adjudicated upon. The judgment will then
be open to a collateral attack on the grounds mentioned in the five clauses of section 13.

In R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Majid10 the Supreme Court held that "a
judgment of a foreign court to be conclusive between the parties must be a judgment
pronounced by a court of competent jurisdiction and competence contemplated by section 13
of the Code of Civil Procedure is in an international sense and not merely by the law of
foreign State in which the Court delivering judgment functions".

Thus, conclusively based on Section 13 has been dealt in detail in the later part of the project.

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS

AND DECREES
Foreign Judgements have been defined under section 2(6) of the Code of Civil Procedure,
1908 as “Judgement of a foreign court”. However, the term judgement follows the English
meaning i.e., it relates to decree or order of a foreign court as per the section 2(5) of the Code
of Civil Procedure, 1908.11

Recognition of Foreign Judgements

According to section 13 of the Code of Civil Procedure, 1908, foreign judgements shall
operate as res judicata pertaining to the parties involved except when at least one or more
conditions mentioned under the clauses (a)-(f) are fulfilled. Therefore, in order to recognise a
judgement as foreign judgement, it must be conclusive on the six conditions mentioned
below:

1. Judgement must be delivered by a Court of Competent Jurisdiction

2. Judgement must be based on merits

3. Judgement must be founded as per correct the view of international law

4. Judgement should not be opposed to natural justice

5. Judgement should not be obtained by fraud

10
Id.
11
Vol. No. 1 Dr. Megha Kothkar, 5th Edition M.P. Jain, CPC (Civil Procedure Code), Lexis Nexis Butterworths,
(2019).
 6. Judgement should not be founded on a breach of any law in force in India

Judgement must be delivered by a Court of Competent Jurisdiction

For a judgement by a foreign court to be conclusive in nature, it must have been pronounced
by a court of competent jurisdiction. It is well recognised rule of Private International law
that a Court has no right to entertain an action for the determination of the title or to the right
to the possession of any immovable property, situated outside its jurisdiction. 12 Thus, the
court must have jurisdiction over the parties and the subject matter.

Gurdayal Singh v. Rajah of Faridkot (1895)13

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. When the suit was filed against him, he was neither a resident nor
a domicile of Faridkot. It was held that Faridkot Court had no jurisdiction to entertain a suit
against B based on a mere personal claim against him. The mere fact that the embezzlement
took place at Faridkot, was not sufficient to give jurisdiction to the Faridkot Court. But if B
was residing at Faridkot at the date of the suit, it would have had complete jurisdiction to
entertain the suit and to pass a decree against him.

Judgement must be based on merits

For a judgement to be issued on merits, it must allow for both the plaintiff and defendant to
represent their respective sides. The true test for determining the question as to whether the
judgment has been given on merits is to see whether it has been given as penalty for any
conduct of the defendant or whether it is based on a consideration of the truth or otherwise of
the plaintiff’s case.14 Therefore, for instance, in a case wherein the evidence adduced by
either of the party has not been considered, the judgement would not be on merits 15. The
burden of proof lies o’ the party contending the fact that a foreign judgment is not on merit.16

12
Satya v Teja Singh, AIR 1975 SC 105 (117): (1975) 1 SCC 120: 1975 CrLJ 52; Parvathi Amma v Rama
Kurup, AIR 1964 Ker 4.
13
Gurdayal Singh v. Rajah of Faridkot, (1895) ILR 22 Cal 222
14
I&G Investment Trust v Raja of Khalikote, AIR 1952 Cal 508
15
Lalji v. Hansraj, AIR 1971 SC 974
16
International Woollen Mills v Standard Wool (UK) Ltd, AIR 2001 SC 2134 (2138): (2001) 5 SCC 265.
Judgement must be founded as per the correct view of international law
Any judgement that is based over an incorrect view of international law or in a refusal to
recognise law of India, wherever applicable would not be conclusive. But the same error must
be apparent on the face of the proceedings. Thus, where in a suit filed in England based on a
contract entered in India, the English Court erroneously proceeds on the view that the case is
governed by English and not Indian law, the judgment must be held to be based on an
incorrect view of international law17, as the rights and liabilities of the parties to a contract are
governed by the place where the contract was entered upon.18

Judgement should not be opposed to natural justice

The judgement must follow the basic principles of natural justice, i.e., it must be obtained
after giving notice to the defendant along with a reasonable opportunity of presenting his
case19; there must not be any biases on the part of the judge delivering the judgement. The
burden to prove the same lies upon the party setting up the case of bias.20

Judgment should not be obtained by fraud

If there is an involvement of any fraudulent activity in a judgement relating to the
jurisdictional facts, it will invalidate all judicial actions taken in that case 21. The fraud does
not essentially mean a mistake by court (i.e., an erroneous decision), but a where the court
was misled.

Satya v Teja Singh22, AIR 1975 SC 105 (117)

A husband obtained a decree of divorce against his wife from American Court averring that
he was domiciled in America. Observing that the husband was not bona fide resident or
domicile
of America, and he had played fraud on foreign court falsely representing to it incorrect
jurisdictional fact, the Supreme Court held that the decree was without jurisdiction and
nullity.

17
Id.
18
Gurdyal Singh v. Rajah of Faridkot, (1895) 22 Cal 222 (PC)
19
I&G Investment Trust, supra note 14.
20
Vishwanathan v Abdul Majid, AIR 1963 SC 1
21
Satya v Teja Singh, AIR 1975 SC 105 (117)
22
Id.
Judgment should not be founded on a breach of any law in force in India
If the judgement by the foreign court is founded on an infringement of any Indian law in
force, it would not be enforced in India. Therefore, a judgement for instance that involves
gambling debt, would not be enforced in India.23

Enforcement of Foreign Judgements

Foreign judgements that are recognised and conclusive in nature, as per Section 13 of the
Code of Civil Procedure, can be enforced in India, in broadly two ways, i.e.,

1. By Instituting a suit on such foreign judgement

2. By Instituting execution proceedings

Reciprocating Territory is any country or territory outside the Republic of India which the
Union Government can via notification in the Gazette of India declare as being a
reciprocating territory. In the case of Kevin George Vaz v. Cotton Textiles Exports 24 the
phrase “reciprocating territory” was defined by the court as any nation or territory outside
India that the union government has recognized as a reciprocating territory. The term “a
territory outside India” was construed by the Court to include territory that may be part of a
nation as well as territory that may have ceased to be part of a nation.

A certified copy of a judgement passed by a superior court in any reciprocating territory

when filed in a District Court in India shall be executable in India and its execution will have
the same effect as if it was passed by a District Court in India.

Manner of Enforcement of Foreign Judgements/Decrees

Basically, the enforcement of a foreign judgment which is conclusive under Section 13 of the
Code can be enforced in India in the following two ways-

By Instituting suit on Foreign Judgment

A foreign judgment may be enforced by instituting a suit on foreign judgment. The general
principle of law is that may decision by a foreign court, tribunal or quasi-judicial authority is
not enforceable in a country unless such decision is embodied tin a degree of Court of that

23
Mulla, Dinshaw Fardunji, 15th Edn. Code of Civil Procedure (1972) Students Edition, Page No. 61 Universal
Law Publishing Co. (2018).
24
Kevin George Vaz v. Cotton Textiles Exports, 2006 (5) BomCR 555
country. In such 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.

By Instituting Execution Proceeding

A foreign judgment may also be enforced by proceedings in execution in certain specified
cases mentioned in Section 44A25 of the Code. The said section provides that where a certified
copy of a decree of any superior courts of any reciprocating territory has been filed in the
District Court, the decree may be executed in India as if it has been passed by the District
Court. When a foreign judgment is sought to be executed under Section 44A, it will be open
to 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 fact that six exception there has been on
violation of some exceptions is of no avail. The decree can only be executed under Section
44A only if all the conditions under Section 13 have been satisfied

Analysis
The pathway to be taken for enforcement of a foreign judgement depends on whether the
court is present in a reciprocating territory or not. Section 44A of the Civil Procedure Code
states that a judgement passed by a superior court of a reciprocating territory can be executed
in India as if it were passed by an Indian District Court.

Section 44A (1) of the CPC states that when a certified copy of a decree passed by a superior
court of a reciprocating territory is filed in a district court in India, it shall be executable in
India and its execution will have the same effect as if it was passed by a District Court in
India (as laid down in Order 21 of the CPC).

When an execution application is being filed, the original certified copy of the relevant
decree and a certificate obtained from the superior court has to be attached to the application.

When the relevant judgement/decree has been passed by the court of a territory not
designated as a reciprocating territory by the Union Government, the applicant must file a
suit on the foreign judgement or the original cause of action or both in a court in India
possessing competent jurisdiction

In M.V.A.L. Quamar vs Tsavliris Salvage26 , the enforcement and jurisdiction of the execution
of foreign decrees was discussed, and it has been stated that “Assuming Section 44-A of the
25
Code of Civil Procedure,1908, § 44A, No. 05, Imperial Legislative Council, 1908 (India).
26
M.V.A.L. Quamar vs Tsavliris Salvage, 2000 (8) SCC 278
Code is applicable for the execution of a decree in persona obtained from an Admiralty Court
in Britain but since Section 44-A is not a self- contained Code for execution of a decree, the
same is not exhaustive and the same, as a matter of fact, does not displace the common law
and it has to be read along with the well-settled principles of common law in matters relating
to execution of decree for a sum of money.” Hence, the Code of Civil Procedure was
applicable even in an Admiralty jurisdiction of the reciprocating territory in this case. Section
13 of CPC is replete with various conditions, and as such independently of any other common
law rights, an enabling provision for a foreign decree-holder to execute a foreign decree in
India has been engrafted under section 44A of the Code. It was also held that on the
jurisdiction aspect, as a decree of a superior foreign Court having reciprocity with India, it
would by itself be sufficient to bring it within the ambit of Section 44A.

In the case of Marine Geotechnics LLC v. Coastal Marine Construction & Engineering
Ltd.27, the Bombay High Court held that when a foreign court from a territory which is not a
reciprocating territory passes a decree, the person who has obtained such a decree must file a
suit on the foreign judgement or the original cause of action or both in a court in India
possessing competent jurisdiction. This is because the foreign decree cannot be directly
executed. Only a domestic decree which has been passed by an Indian Court of competent
jurisdiction which is based on a suit based on the foreign decree is enforceable. This decree is
obtained only when the decree holder can show to the Indian court that the foreign decree
satisfies the test as laid down in Section 13 of the CPC.

There is also a limitation posed which is that a suit on a foreign decree must be filed within 3
years from the date when the foreign decree was passed.

CHALLENGES FACED IN ENFORCEMENT OF FOREIGN DECREES

There are several challenges and issues that are faced in the enforcement of foreign decrees in
India, some of which are:

 Reciprocity: Enforcement of a foreign judgement requires a foreign court to recognize

and enforce a judgement from another country. The issue of reciprocity arises when a
foreign court recognises and enforces a judgement only when that country also recognises
and enforces a judgement from the foreign court. This implies that if a foreign nation
lacks a reciprocal agreement with the country where the judgement was acquired, the

27
Marine Geotechnics LLC v. Coastal Marine Construction & Engineering Ltd, 2014 (2) Bom CR 769
 judgement may be unenforceable in that foreign country and thus reciprocity proves to be
a major challenge in enforcement of a foreign judgement. Reciprocity is a challenge in
enforcement of foreign judgements as it is dependent on political and diplomatic relations
between the countries.
Due to political difficulties, wars, or other considerations, governments may be hesitant to
enter into reciprocal agreements with countries and thus hinder the process of such
enforcement. It can also be difficult owing to variations in legal cultures and customs
between countries. Some nations, for example, may have a stronger heritage of judicial
independence, whilst others may be impacted more by political or economic concerns.
These disparities might make establishing trust and collaboration across various legal
systems more difficult, which can impede the acceptance and execution of foreign
judgements.
 Jurisdictional Issues: - Another challenge in enforcing foreign decrees is the question of
jurisdiction. The Indian courts may not have jurisdiction over the matter or parties
involved in the foreign decree. Identifying whether the Indian courts have jurisdiction
over the subject matter or parties to the foreign order is one of the main issues. In India,
jurisdiction might depend on several things, such as the parties' places of residence or the
nature of the issue. Enforcing the foreign decree in India may become difficult if the
Indian courts lack jurisdiction over the subject matter or persons concerned.
Imagine, for instance, that two parties are involved in a dispute and a foreign decree has
been issued in the United States. The Indian courts might not have jurisdiction over the
subject or the parties involved in the foreign decree if one of the parties lives in India and
wishes to enforce the foreign decision there. This can be the case because the issue falls
beyond the purview of Indian courts, the defendant is absent, or the defendant has no
assets in India. In this case, the party wishing to execute the foreign judgement in India
may need to start a new legal action there in order to establish jurisdiction and carry out
the enforcement of the foreign judgement. This might need more effort, money, or time.
 Compliance with Indian Law: - To enforce a foreign decree in India, it must comply
with the Indian laws and public policy. If the foreign decree is against the Indian law or
public policy, it cannot be enforced in India, because it cannot be said to be conclusive
under section 13(f)28. But the problem arises when any law or practice is recognized by
other states and Indian law is silent on it, which are neither against nor complying with
the Indian Laws. In such a situation impugned law cannot be held to be inconclusive
28
Code of Civil Procedure,1908, § 13(f), No. 05, Imperial Legislative Council, 1908 (India).
 under section 13(d) & (f), but is also not recognised by Indian Laws, hence it will be
difficult to enforce and a serious question will be posed as to the validity of its
recognition. Moreover, where the Indian law to the point in question is itself hazy and still
under debate, may create a hindrance in effective recognition and enforcement of a
foreign decree to that effect.
For instance, there is no provision in the Indian Contract Act either for or against the
doctrine of privity of contract. There has been a great divergence of opinion in Indian
courts as to how far a stranger to a contract can enforce it. So, if a third party gets a
foreign decree in Germany, which allows a third party to enforce a contract, to get a
contract enforced in India, the court will face hard times while deciding upon its
recognition and enforcement.
 Procedural Delays: - It relates to the delays that occur while seeking to enforce a
judgement or court order issued by a foreign court. It can arise due to various factors like
appeal as the party against whom the judgement is being enforced may have the right to
appeal or challenge the judgement, which consumes time. The differences in the legal
system of the foreign court and domestic court can cause delays as there could be a
requirement of additional steps like requirement of a certain document and procedure to
ensure that the judgement is enforceable in the domestic court. Delays can be caused by
the requirement of some extra documentation and evidence.
Moreover, the jurisdictional issues can cause delays in the case where the court which
must enforce the judgement by the foreign court does not have jurisdiction over the party
against whom the judgement is being enforced, there would be a requirement of
additional proceedings which can be a cause of delay. In the case where the party against
whom the judgement is being enforced is located outside of the jurisdiction where the
judgement is being enforced, the service of process becomes complicated and consumes a
lot of time.
The discretionary factor is a very broad term and can cause delays as the judges may have
a discretion to consider some factors while deciding whether to enforce a foreign
judgement. These factors could be public policy of the enforcing jurisdiction, the
procedural fairness of the foreign court or the adequacy of the damages awarded by the
foreign court. This causes delay as the court may ask for additional evidence to persuade
the court to enforce the judgement. Additional legal proceedings may be required to
obtain an equivalent remedy in cases where the jurisdiction does not have equivalent legal
remedy to those awarded by the foreign court. For example, the foreign court in a matter
 has awarded punitive damages or an injunction, but the local jurisdiction may not have
such legal remedy. The procedural delays further make the process of enforcement of
foreign judgement a complex process.
 Language Barriers: - The language barrier can also create a challenge in enforcing
foreign decrees in India. The official language of the Indian courts is English, which is
used most frequently in court proceedings. Therefore, before they may be recognized and
enforced by the Indian courts, papers and judgments received from foreign nations that
are written in a language other than English may need to be translated into English. It can
take a while to translate legal texts from other languages into English, which could delay
the process of having them enforced.
The accuracy of the translation is crucial, as any errors or discrepancies may lead to a
rejection of the foreign decree by the Indian courts. Moreover, India itself being diverse
has language diversity at its trial courts, language varies with regional language of states
e.g., M.P. has Hindi as official language of courts but Gujarat has Gujarati as official
language, this makes the job of the court very complex at times. Apart from this, the
jurisprudence varies with the language, all of which cannot be reasonably expected to be
understood by a civil court judge.
For instance, if a district court in the state of Tamil Nadu court (official language of the
court is Tamil here) wants to enforce a decree from Israeli court, where the official
language of the court is Hebrew (one of the toughest languages of the world), it will be
very difficult process for the courts to get personnels who can translate the Hebrew
judgements in Tamil. This can create a huge delay and inconvenience to the parties.
 Lack of Awareness: - There is a lack of awareness among the general public and legal
practitioners regarding the enforcement of foreign decrees in India. This can lead to a lack
of knowledge about the procedure, which can cause delays and complications. One of the
main reasons behind this is the complexity of the legal procedures involved. The process
of enforcing a foreign decree in India involves several of legal steps, including filing a
petition for recognition and enforcement of the foreign decree, providing evidence to
establish the authenticity of the decree, and complying with the procedural requirements
of the Indian courts.
Another factor contributing to the lack of awareness is the fact that the enforcement of
foreign decrees is a relatively new area of law in India. While the Indian legal system
recognizes the principle of comity of nations, which requires courts to give due respect to
 foreign judgments, there is still a lack of clarity regarding the procedures for enforcing
such judgments.

SOLUTIONS TO THE CHALLENGES FACED IN ENFORCEMENT OF

FOREIGN DECREES
 Increasing Bilateral Engagements- Bilateral treaties with reciprocating countries help in
recognition and enforcement of foreign judgement. In the absence of a reciprocal bilateral
treaty, the courts may not recognise the validity of the foreign judgement. The solution to
this is entering into bilateral treaties and increasing the engagement with various countries
to ensure a smooth flow of grievance redressal in cases of civil and commercial disputes.
Remedies granted by courts of non-reciprocating territories are not directly enforceable in
India and for that purpose a new civil suit must be filed. Entering into reciprocal
agreements would enforce the judgement from a foreign court without the need to file a
fresh suit.
This can be further explained with the help of a type of bilateral treaty entered, by India
with several countries with the name and objective of “Treaty on mutual legal assistance
in civil and commercial matters.”
Taking the example of this treaty as entered between India and Ukraine, the extent of
legal assistance as described in Article 529 of the treaty states that the assistance under this
treaty shall include
a) Service of summons and other judicial documents or processes;
b) Taking of evidence by means of letters of request;
c) Enforcement of judgments, settlements, and arbitral awards. Similarly, in the treaty
with Russia, the scope of such assistance extends to taking expert opinions, evidence
from litigants, and making judicial inspections. Such treaties are a huge step in
making the enforcement of foreign judgement smooth and thus be encouraged to
effective enforcement of judgement.

Entering into a reciprocal agreement depends majorly on the economic, social, and
political relation between the country and India. Taking into consideration the various
types of agreements entered between countries, the subject matter of the agreements can
be transformed into a reciprocal agreement with that country and thus the cases arising on
that subject matter could be resolved with ease. To explain further, India has entered into a
29
Treaty On Mutual Legal Assistance In Civil And Commercial Matters Between The Republic Of India And
Ukraine, Article 5
 bilateral agreement with the Kingdom of Belgium titled Social Security Agreement which
applies to all individuals who are, or were, subject to the social security legislation of
Belgium or India. This agreement is of importance here as according to the present
agreement, the social security benefits will no longer be restricted by the claimant’s place
of residence. For example, the Indian nationals who have paid or who will be paying
Belgian social security contributions will receive a Belgian old-age pension upon their
retirement, even if they have returned to India. So, here in case of a dispute on this subject
of payment of social security benefits, entering into a reciprocal agreement would ease the
process of enforcement of judgement passed by the courts of Belgium.

 Simplification of Procedure- The process of enforcing foreign decrees can be

streamlined by reducing the number of formalities involved. For example, the
requirement for parties to file multiple affidavits can be eliminated by requiring them to
file only one affidavit containing all the necessary information. Moreover, the notion
behind the recognition and enforcement of foreign judgements is to provide certainty and
predictability in cross-border matters relating to civil and commercial law, or family law,
hence for effective dispensation of justice and speedy disposal of trials, number of
appeals can be reduced, as firstly the foreign court and then the municipal court have
given due representation to the parties. The exercise of appeal after appeal can cause
undue delay in executing the foreign judgement. India can also adopt some of the
mechanisms prevalent in the other countries like the UK for enforcement of foreign
judgement with necessary modifications to suit her justice disposal machinery.
India can adopt the English scheme of foreign judgement recognition and enforcement
from its common law origin to its more sophisticated and streamlined foreign judgement
registration system. For many years, countries such as England have sought to increase
the currency of their domestic judgments by entering and maintaining reciprocal foreign
judgement recognition and enforcement treaties with other signatory countries. Here the
judgments from current and former commonwealth countries [Administration of Justice
Act, 1920], judgements from various recognised courts [Foreign Judgements (Reciprocal
Enforcement) Act, 1933], and judgements from members of European Union and
European Free Trade Association [Brussels and Lugano Convention] are dispensed
dispense with the necessity of filing a fresh suit to enforce a foreign judgement and
provide foreign judgement creditors with the option of enforcing their judgments by way
of registration within foreign signatory countries, where they will be given reciprocal
 effect if certain minimal statutory requirements are met. India can also look forward to
enacting a national legislation that recognizes and enforces foreign nation’s judgments by
way of registration.
 Awareness through Advocates Training Programmes- The lack of awareness regarding
the enforcement of foreign decrees in India as well as in foreign countries regarding
Indian legal system for effective enforcement of Indian decrees in the foreign countries. It
is important to make advocates aware about the procedure of enforcement of foreign
decree as lack of it can lead to delays and complications in the legal process, and can
result in the denial of justice for parties seeking to enforce their rights under a foreign
decree. Bar associations, legal organisations, or even law firms can host seminars,
workshops, and training sessions for legal practitioners practising civil advocates and
young lawyers to acquaint them with the intricacies of getting a foreign decree enforced
in India with the help of the Government.
Developing easily accessible resources, such as handbooks or online guides, that provide
information on the procedures for enforcing foreign judgments can also help. Moreover,
legal practitioners shall encourage networking and collaboration with others who have
experience in enforcing foreign judgments, this can be done through formal mentorship
programs or informal networking events. Other tools of raising awareness such as articles,
social media campaigns, and other outreach efforts can also be resorted to.
 Appointment of Translators and Interpreters- The enforcement of foreign judgments
can be a challenging process, especially when language barriers are involved. It can be
overcome by employing qualified translators with the court who can translate the foreign
judgement and related legal documents into the language of the enforcing country,
making it easier for the enforcing court to understand and evaluate the foreign judgement.
Expert witnesses who are proficient in the language of the foreign judgement can be used
to provide evidence and testify in court. This can help to clarify the foreign judgement
and ensure that the enforcing court understands its content and context.
Courts can also mandate decree holders to obtain certified translations of foreign
documents and decrees by professional translators who are well-versed in legal
terminology and have experience in translating legal documents. This can help ensure that
the translated documents are accurate and meet the standards required by the Indian
courts. Overall, the key to overcoming language barriers in the enforcement of foreign
 judgments is to be proactive and strategic in identifying potential challenges and
developing solutions to address them.
 Alternative Dispute Resolution Mechanisms- Enforcing a foreign decree in India can
be a challenging task, as it involves navigating different legal systems and procedures. In
such cases, alternative dispute resolution (ADR) methods such as mediation or arbitration
can be a viable solution to resolve the dispute. Both mediation and arbitration can be less
time-consuming and less costly than litigation. Additionally, these methods offer
confidentiality, which is especially important in disputes involving sensitive information
or trade secrets.
To initiate mediation or arbitration, the parties must agree to participate in the process. If
the parties are unable to reach an agreement, they can still pursue litigation. However, if
the parties can resolve their dispute through mediation or arbitration, it can be a quicker
and less costly alternative to litigation. In conclusion, alternative dispute resolution
methods such as mediation or arbitration can be a viable solution for enforcing foreign
decrees in India. These methods offer a less time-consuming and less costly alternative to
litigation, and can result in a binding agreement that is enforceable in Indian courts.

CONCLUSION