FOREIGN JUDGEMENT UNDER CODE OF CIVIL PROCEDURE, 1908

MEANING:

   A foreign court is a court that is situated outside India and was not made or continued by the Central Government of India. Foreign judgment means a judgment passed by a foreign court. It is an adjudication on any matter before it by the foreign court. Section 13 of the Code of Civil Procedure, 1908 contains the rule of res judicata in respect of foreign judgment. Thus, it incorporates the principle of private international law that any judgment passed by any foreign court having competent jurisdiction can be enforced in India.

Section 14 of the Code of Civil Procedure, 1908, declares that when a certified copy of a foreign judgment is produced the court shall presume that such a judgment was pronounced by a court of competent jurisdiction unless contrary appears on the record, or is proved.

An award passed by a foreign arbitrator and enforceable in a country where it was made, can be enforced in India.

OBJECT OF ENFORCEMENT OF FOREIGN JUDGMENT:

  The judgment passed by a foreign court is enforced on the basis of the fact that it is passed by a court having competent jurisdiction on a claim, a legal obligation arises to satisfy that claim.  Although the rules of private international law of each State differ some rules are recognized as common to civilized jurisdictions.  Such recognition is on the basis of consideration of justice, equity, public policy, and good conscience. A set of common rules have been adopted for adjudicating issues involving foreign elements and to implement judgment passed by foreign courts. International conventions also guide in enforcing the foreign judgment.

BINDING NATURE OF FOREIGN JUDGMENTS-

The Code of Civil Procedure provides that a foreign judgment passed by a foreign court shall be conclusive on any matter directly adjudicated upon between same parties or between parties under whom they claim litigating under the same title except –

a.       Where it has been pronounced  by a court not having competent jurisdiction;

b.      Where it has not been given on the basis of merits of the case;

c.       Where it looks like to be founded on an incorrect view of international law or a refusal to recognize the Indian law 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.        Where it sustains any claim founded on a breach of any law in force in India.

FOREIGN JUDGMENTS ARE NOT CONCLUSIVE IN THE FOLLOWING CASES-

A foreign judgment is conclusive and will operate as res judicata between the parties.  Indian courts do not have to decide whether the conclusions recorded by a foreign court are correct or not. The courts in India do not have to examine the merits of the original claim and it shall be conclusive.

However, section 13 of the Civil Procedure Code lays down the following exceptions when the foreign judgment shall not be conclusive and binding-

a.       Foreign judgment not by a competent court

 A judgment passed by a foreign court can be conclusive only when it is passed by a court of competent jurisdiction.  It is a fundamental principle that any judgment passed by a court not having jurisdiction is null and void. A foreign judgment must be by a court competent both by the law of the State and in an international sense and it must have directly adjudicated upon the matter which is pleaded as res judicata.

b.      Foreign judgment not on merits-

For the principle of res judicata to apply it is important that the foreign judgment has been given on the basis of the merits of the case. A judgment is considered to be given on the merits of the case if the judges decide the case by applying their mind regarding the truth or falsity of the plaintiff’s case on the basis of the evidence produced before the court.

Thus, if a suit is dismissed because of default of appearance of the plaintiff, or for not producing a document by the plaintiff even before the filing of the written statement by the defendant. such judgments are not passed on the merits of the case.

The real test for deciding whether the judgment was given on the merits of the case or not is to see whether it was merely passed as a matter of course, or by way of penalty of conduct of the defendant, or is based on consideration of the truth or falsity of the plaintiff’s claim.

c.       Foreign judgment against International or Indian law-

A foreign judgment made on an incorrect view of international law or refusal to recognize Indian law where such law is applicable is not conclusive. However, it must be noted that the mistake of foreign judgment being passed against international law or Indian law must be apparent on the face of the proceedings.

d.      Foreign judgment opposed to natural justice-

For a judgment to be passed on the basis of natural justice it must be composed of unbiased persons, act fairly in good faith. Such a judgment must give reasonable notice to the parties to the dispute and give equal and adequate opportunity to represent his case. Thus, the judgment must be unbiased and impartial otherwise it will be regarded null. When the foreign judgment is opposed to natural justice the principle of res judicata will not apply.

e.      Foreign judgment obtained by fraud-

In Private International Law if a foreign judgment is obtained by fraud then it will not operate as res judicata. All judgments whether passed by a foreign court or domestic courts are void if they are obtained by fraud.

The fraud may be either fraud done by a party to the dispute in whose favor the judgment is given or fraud on the court that gave the judgment. Such a fraud must not be merely constructive but must be actual fraud containing representations made and intended to mislead.

f.        Foreign judgment founded on a breach of the law-

Where a foreign judgment is founded on a breach of law in force in India, it would not be enforced in India. Each case coming before the Indian court must be decided on the basis of Indian law. Foreign law and foreign judgment must not offend our public policy.

ENFORCEMENT OF FOREIGN JUDGMENTS:

A foreign judgment which is conclusive under section 13 of the Code can be enforced in India in the following way-

1.       By instituting suit on foreign judgment- 

The general rule is that any judgment of the foreign court is not enforceable unless such a decision is embodied in a decree of a court of that country. A foreign judgment can be enforced by instituting a suit on such foreign judgment.  Such a suit must be filed within three years from the date of the judgment. In such cases, the court does not examine the merits of the original claim and it shall be conclusive

2. Execution proceedings- 

 A foreign judgment can be enforced by execution proceedings in some specified cases given in Section 44-A of the Code.

Section 44-A provides that where a certified copy of a decree of any superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.

When a foreign judgment is sought to be executed under section 44-A, it will be open to the judgment-debtor to take all objections which would have been open to him under section 13 if a suit had been filed on such judgment.  The decree can be executed under Section 44-A only if the conditions of Section 13(a) to (f) are fulfilled.

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