Enforcement of Foreign Judgements
Enforcement of foreign judgments and decrees passed by foreign courts has been discussed in this article.
Civil Procedure Code, 1908 lays down the procedure for the enforcement of foreign judgements and decrees in India. It had been defined as –
A foreign court is defined under section 2(5) of the Civil Procedure Code, 1908 as “a court situated outside India and not established or continued by the authority of the Central Government.”
A foreign judgment is defined under section 2 (6) of the Civil Procedure Code, 1908 as “a judgment of a foreign court.”
The distinction between recognition and enforcement can be drawn as, section 13 of the Civil Procedure Code, 1908 provides the basis for the recognition of a foreign judgment passed by the foreign court, and this is the former step to be taken by the foreign court before the enforcement of such foreign judgments.
Whereas, section 44A of CPC, discusses the enforcement of the judgment delivered by the foreign court by both reciprocating and non-reciprocating territories. The List of the Reciprocating Territories as per the Provisions of Section 44 A of the Code of Civil Procedure, 1908;
- United Kingdom
- Trinidad & Tobago
- New Zealand
- The Cook Islands (including Niue)and The Trust Territories of Western Samoa
- Hong Kong
- Papua and New Guinea
Nature and Scope of Foreign Judgments
The nature and scope of foreign judgments embody under section 13 of 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.
The foreign court judgments can be enforced on the principle that where the foreign court has competent jurisdiction to adjudicate the claim, then a legal obligation arises to satisfy that claim which is raised by parties in the dispute.
The rules of Private International Law of each State differ in various respect, but by the comity of nations, specific rules are recognised as common to civilized jurisdictions.
Jurisdiction of Foreign Courts
In Private International Law, when the foreign court has no jurisdiction in the international sense then a judgment delivered by that foreign court would not be recognised in India. But, it will be considered only with the territorial competence of the court over the subject matter and the defendant in the dispute.
Presumption as to Foreign Judgments
According to section 14 of the Civil Procedure Code, 1908, “The Court shall presume upon the production of any a document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on the record, but such presumption may be displaced by proving want of jurisdiction.”
Herein, section 14 states that the presumption that an Indian Court takes when a document is to be a certified copy of a foreign judgment is presented before it.
Whereas, it is presumed that a foreign court who has competent jurisdiction pronounced the judgment unless the contrary appears on the record, but by proving want of jurisdiction may overrule such presumption.
Conclusiveness of Foreign Judgments
Section 13 states that the fundamental rules should not be infringed by the foreign court whenever the court passes a decree or judgment. Therefore, the decree or judgment passed by the foreign court will be conclusive except where it comes under any of the clauses (a) to (f) of section 13 of the Civil Procedure Code, 1908.
Section 13 of the Civil Procedure Code, 1908, it is provided with that 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 to litigate 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 recognise 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) where it sustains a claim founded on a breach of any law in force in India.
Frequently Asked Questions
What is recognition and enforcement of foreign judgments?
The “recognition” of a foreign judgment occurs when the court of one country accepts a judicial decision made by the courts of another “foreign” country and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit.
What are the conditions for the enforcement of foreign judgments in India?
To execute a foreign judgment or decree from a non-reciprocating territory, a fresh action must be filed before an appropriate Indian court and a domestic decree must be obtained. In these proceedings, the foreign judgment or decree is considered evidence.
How do you execute a foreign judgement?
A foreign judgment which is conclusive under Section 13 of the code may be enforced by instituting execution proceedings under Section 44-A in the case of ‘reciprocating territories’ (see question 1.2) or by instituting a civil suit on the judgment in the case of non-reciprocating territories.
What is meant by foreign judgement?
A foreign judgment is defined under section 2 (6) of the CPC as a judgment of a foreign court. A foreign court, under section 2(5) of CPC, means a court situated outside India and not established or continued by the authority of the Central Government.
What is the scope of a case for enforcement of foreign judgment?
What is the scope of a case for enforcement of foreign judgment? The Supreme Court has acknowledged the importance of the recognition of foreign judgments. A case for the recognition of a foreign judgment is not an occasion to relitigate what an earlier court has already ruled upon.
Enforcement of Foreign Judgments and Decrees passed by the foreign courts, as the above discussion of the legal issues involved in the enforcement of foreign judgments and decrees in India, emphasizes the need for the Indian business sectors not to treat the summons received from foreign courts casually. Where a judgment or a decree is passed by a foreign Court against the defendant who is residing in India, the judgment or decree may not be enforceable against him due to the operation of Section 13 of the Code of Civil Procedure, 1908.
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