Foreign Judgement: recognition and enforcement of foreign judgements and decrees in India
Foreign judgements and decrees are recognized and enforced in India.
The Code of Civil Procedure, 1908 (CPC) has laid down the procedure for execution of a decree obtained from a foreign court. However, to be eligible for the execution, a foreign judgement must pass the test of ‘conclusiveness’ as set out in CPC.
Recognition of foreign judgement:
Section 13 of CPC provides the conditions which are important while determining the ‘conclusive’ nature of a foreign judgment. A foreign judgement shall be treated as ‘conclusive’ except it suffers from any of the below conditions –
- Where it is not provided by the court of competent jurisdiction;
- Where it has not been given on the merits of the case;
- Where it appears from 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 such cases where it is applicable);
- When the proceedings are opposed to natural justice;
- Where it is obtained by fraud;
- Where it sustains a claim founded on a breach of any Indian law.
Thus, if any foreign judgment suffers from any one or more of the above-mentioned conditions, the Indian law will refuse to recognize such judgment and consequently, will not be enforceable in India.
Presumption as to the competent foreign court:
Section 14 of CPC articulates that the Indian Court shall presume, upon production of a certified copy of the judgment, that such judgment was pronounced by the Court of competent jurisdiction, unless the contrary appears on the record. Also, such presumption as to the competence can be displaced, if a party can prove the want of jurisdiction of the foreign court.
Execution of foreign decree:
Mode of execution of a foreign decree is divided into two broad categories depending on the fact that from which territory (country) the decree has arrived.
(a) Enforcing judgements from reciprocating territories.
Such decrees are executed as an Indian decree and executed as if they were passed by the Indian district court. Reciprocating territories/countries are those which are notified by the Central Govt. of India for this purpose. Provisions relating to the execution of foreign judgements from reciprocating territories are contained in Section 44A of CPC.
(b) Enforcing judegments from non-reciprocating territories.
Judgments from non-reciprocating territories cannot be filed for execution straight away as under the case of Section 44A. However, a fresh suit needs to be filed based on the foreign judgement or on the original cause of action or both. Only, a resultant decree from such fresh suit can be executed in India.
Application of principles of res-judicata and estoppel:
The Indian legal system is based on the common law system which recognizes the principles of ‘res-judicata’ and ‘estoppel’. These principles prevent the multiplicity of suits on the same cause of action.
Note of Thanks
We are grateful for the time and support of Mr. Vashishth Joshi (attorney at law), whose legal acumen and experience of handling international trade disputes have been of immense help in developing and structuring our blog