Executability & Enforceability of Foreign Judgments and Decrees in India
By Karan Mittal August 09, 2015
The word foreign decree or order simply connotes a final adjudication on a point of law by a court situated outside the territory of India or simply not coming under the authority of the central legislature. The executability of foreign judgements in India is governed by The Code of Civil Procedure 1908 (CPC). Various sections under the code govern the executability of the foreign judgements such as Section 13, Section 38, Section 39, Section 40, Section 44-A and Section 45.
For the purpose of enforcement, foreign decrees have been classified into two classes: one from the reciprocating countries and the other from the non-reciprocating countries. According to Section 44A of CPC a decree from a reciprocating country is directly enforceable in India as if it has been passed by the domestic country itself if the conditions laid down under Section 13 are satisfied.
Further a foreign decree of a non-reciprocating country can be executed by institution of a suit in the domestic courts. In the newly instituted suit the decree of the foreign court will be treated as another piece of evidence collectively with other evidence.
The list of reciprocating countries have been notified in the official gazette by the central government. However in both the abovementioned cases the decree has to pass the test laid down under Section 13 of CPC.
Thus the whole situation boils down to determining whether or not the foreign decree satisfies the conditions laid down under Section 13 of CPC.
According to Section 13 a foreign decree becomes inconclusive if:
- It has not been pronounced by a court of competent jurisdiction.
- It has not been given on the merits of the case;
- it sustains a claim founded on a breach of any law in force in India.
- it has been obtained by fraud.
- the proceedings in which judgment was obtained are opposed to natural justice
- it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable.
This article would discuss in detail these conditions along with decided cases of the Supreme Court and various high courts.
Firstly, coming to Section 13(a) under which it is laid down that if a decision of a foreign court is not pronounced by a court of competent jurisdiction it would not be enforceable. In the case of Moloji Nar Singh Rao v. Shankar Saranthe issue was, whether a foreign decree which was given ex parte can be executed in India. The Supreme Court pronounced that the decree cannot be executed in India due to the following reasons:
- The respondents were not subjects of the foreign country.
- They did not voluntarily appear in the court.
- They did not contract to submit to the jurisdiction of the foreign court.
- They were not the residents of that foreign country.
- They were not temporarily present in that State when the process was served on them.
In another leading case R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiarthe respondent alleged that since he was neither the resident of that foreign country nor had he submitted to the jurisdiction of the foreign court the decree should not be executed in India. The plaintiff claimed that the respondent was a partner in a firm which was located in the foreign country and thus the foreign court had the jurisdiction to try the case. 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 and thus the decree could notbe executed in India.
Further the Madras High Court in the case Ramanathan Chettiar v. Kalimuthu Pillai had laid down certain circumstances wherein a foreign judgement could be applicable in India:
- When judgements have been obtained against the concerned person on prior occasions in the foreign country.
- When he is the resident of the foreign country in which the action had commenced.
- Where the party voluntarily appears on being summoned
- Where by an agreement a person has contracted to submit himself to the forum in which the judgment is obtained.
Thus these are basically the conditions which need to be satisfied fora foreign judgement to be executed in India.
Secondly, according to Section 13(b) of CPC if a foreign judgement is not given on the merits of the case then it cannot be executed in India. The fountainhead of all decisions under this head has been the decision of the Privy Council in the case of D.T. Keymer v. P. Viswanatham. In this case a suit for money was brought against a partner of a firm in a foreign court. After this the defendants was asked to answer certain interrogatory questions. When he denied to answer these questions his defence was struck off and judgment was entered for the plaintiff without investigating into the claims of the plaintiff. The domestic courts in India held that the decree cannot be enforced in India as the foreign judgement had not been passed on the merits of the case.
Primarily courts in India take a very stringent view while enforcing ex- parte foreign judgements in India. However sometimes ex- parte judgements that have been passed on the merits of the case and concluded after engaging in proper investigation of the claims, have been enforced by the Indian courts.
For example in the case of Ephrayim H. Ephrayim v. Turner Morrison & Co., it was held that where no defence is raised and only an adjournment is sought, and the request for adjournment is refused and the judgment is proceeded on the evidence of the Plaintiff, it cannot be said that the judgment is not on the merits of the claim. Therefore S. 13(b) of CPC will not be able to come to the rescue of the defendant.
Third, coming to Section 13(c) of CPC which states that if a foreign judgement is passed disregarding the Indian or International law then it cannot be executed in India. Avery interesting case in this regard is Anoop Beniwal v. Jagbir Singh Beniwal. In this case the plaintiff had filed a suit for divorce in England on the basis of the English Act, that is the Matrimonial Causes Act, 1973. The petitioner’s complaint was that the behaviour of the respondent made it reasonably difficult for the former to cohabit with the latter- In India a slightly stricter ground than the one that was provided in the foreign judgment, was stated. The court held that the decision of the foreign court was not in contravention to the Indian law and thus enforced the decree.
Thus Section 13(c) primarily says that:
- A judgment or decree passed by a foreign Court upon a claim for immovable property which is situated in the Indian territory may not be enforceable since it offends International Law.
- A judgment/decree cannot be enforced in India, if a foreign judgement was rejected on consideration by a previous Indian court. However if the proper law of contract is the foreign law then this may not be applicable.
Further, according to Section 13(d) if the proceedings in the foreign court were opposed to the principles of natural justice then the foreign judgement cannot be executed in India. In the case of Hari Singh v. Muhammad Saida foreign court failed to appoint a court guardian of a minor defendant and thus the domestic court did not execute the judgement saying that what the foreign court did was opposed to the principles of natural justice.
In addition, according to Section 13(e) if a foreign judgement is passed by a court due to the fraud played on it by the plaintiff then the judgement cannot be enforced in India.
In the case of Satya v. Teja Singhthe Supreme Court held that since the plaintiff had misled the foreign court about its non-existing-jurisdiction over the matter,-, the judgment and decree would be deemed to have been obtained by -fraud and therefore would be presumed to be inconclusive and could not be applied in India.
Thus it can be concluded that a judgment passed in the courts of a reciprocating country could not be enforced in India if it failed to satisfy the rules laid down under Section 13 of CPC. It can be seen that, the plaintiff has to come before the Indian courts to either get the foreign judgment executed under S. 44A or file a fresh suit for the enforcement of the judgement. Therefore by getting a decree in the foreign Court, the plaintiff only avoids the inconvenience of meeting the requirements under the law of evidence applied by the Indian Courts. But when he does not institute the case in India he runs the bigger risk of dealing with the difficulties of getting the foreign judgment executed in India under the stringent conditions of S. 13. Therefore it may be advisable for a foreign plaintiff to institute claims in India itself, in case the defendant is in India.
Photo Courtesy: https://www.google.co.in/search?q=foreign+judgments+enforce+india&biw=1366&bih=623&tbm=isch&source=lnms&sa=X&ved=0CAgQ_AUoA2oVChMIx9Kb4q2cxwIVzluOCh1MjA7T#tbm=isch&tbs=rimg%3ACXCYOK9_1Rdm1Ijj6IP4BB9AXGwdBffTeM3WItO-Q3j0cHcQZ6GlVly4fW03JiDnYhWWBO51Wf2kPyiGBJmgLgHyrsyoSCfog_1gEH0BcbEQ4UlB8Xx3onKhIJB0F99N4zdYgRRh-WNUZyKTQqEgm075DePRwdxBG22SOwxInYCCoSCRnoaVWXLh9bEdxX4o9peRRYKhIJTcmIOdiFZYERg94ZK_1zc8XYqEgk7nVZ_1aQ_1KIREC0QBoe2XX1yoSCYEmaAuAfKuzEQoBcyywZWZj&q=foreign%20judgments%20&imgrc=TcmIOdiFZYF59M%3A......................................................................................................................................................  AIR 1962 SC 1737. It is a constitutional bench consisting of 5 judges. AIR 1973 Mad . 141. ; Cf. Ibid. at p. 143 para 16. Also see Chormal Balchand Firm Chowrahat v. Kasturi Chand AIR 1916 PC 121. AIR 1930 Bom. 511 at 515 AIR 1990 Del. At 311. AIR 1927 Lah. 200. AIR 1975 SC 105 at p. 117 para 50.
civil procedure code , foreign judgments enforceability , S. 13 CPC , S. 38 CPC , S. 39 CPC , S. 40 CPC , S. 44 CPC , S. 45 CPC , S. 44A CPC , Moloji Nar Singh Rao v. Shankar Saran , R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar , Ramanathan Chettiar v. Kalimuthu Pillai , D.T. Keymer v. P. Viswanatham , Ephrayim H. Ephrayim v. Turner Morrison & Co , Anoop Beniwal v. Jagbir Singh Beniwal , Hari Singh v. Muhammad Said
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