The Civil Procedure Code, 1908 has defined the meaning of the term Foreign Courts and Foreign Judgments in detail. According to the Code, “Foreign Courts means a Court situated outside India and not established or continued by the authority of the Central Government”  and “Foreign Judgments means the judgment of a foreign Court” .
Nature and scope
The Civil Procedure Code under section 13 has inserted the principle of private international law which makes it possible to enforce in India the judgment that has been issued by a foreign court of competent jurisdiction whereby the foreign judgments will act as a res judicata. This section is not confined in its application to the plaintiffs. A defendant is equally entitled to nonsuit the plaintiff based on a foreign judgment .
The judgment of the foreign court is enforced on the principle that where a court of the competent jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy the 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 civilised jurisdictions. Though part of the judicial system of every state along with these common rules have been adopted to adjudicate upon the dispute involving a foreign element and effectuate judgments of foreign courts in certain matters, or as a result of international conventions .
Such 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 and pathway 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 .
As has been rightly observed by the great jurist “ We are not so provisional to say that every solution of a problem is wrong because we deal with it otherwise at home and we shall not brush aside foreign judicial process unless doing so would violate the fundamental principle of justice, some prevalent conception of good moral, some deep-rooted tradition of the commonweal” .
When are foreign judgments conclusive?
In the Civil Procedure Code, it is mentioned that the Foreign Judgment is conclusive but there are certain circumstances in which it does not amount to be conclusive. A foreign judgment is not conclusive in the following six circumstances which are mentioned in Section 13 of the Code :
- Where a court of competent jurisdiction has not pronounced it.
- Unless it was granted on the merits of the case.
- Where, on the face of the trial, it seems to be based on an erroneous interpretation of foreign law or on a failure to accept the law of India in situations where that law is valid.
- Where natural justice is contrary to the courts in which the judgment was received.
- Where it was acquired by fraud.
- Where it sustains a claim founded on a breach of any law in force in India.
Foreign Judgment not been passed by the competent jurisdiction
The foreign judgment is conclusive when it is passed by the court of competent jurisdiction and the judgment which is being delivered by the court, the court should be competent by the law of the state which has constituted it as well as it has been directly adjudicated upon the matter. Where the judgment is passed by the court which is non-competent then the judgment is null and void.
“In the case, 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 exparte decree was passed against him. B was a native of another native state Jhind. In 1869, he left Jhind and went to Faridkot to take up service under A. But in 1874, he left A’s service and returned to Jhind. The present suit was filed against him in 1879 when he neither resided in Faridkot nor was he domiciled there. On these facts, on general principles of international law, the Faridkot court has no jurisdiction to entertain a suit against B based on a mere personal claim against him. The decree passed by the Faridkot court in these circumstances was an absolute nullity. When A sued B in a court in British India, against B on the judgment of the Faridkot court, the suit was dismissed on the ground that Faridkot court has no jurisdiction to entertain the suit. The mere fact that 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 suit, the Faridkot court would have had complete jurisdiction to entertain the suit and to pass a decree against him” .
When it has not been given on the merits of the case
A foreign judgment on the merits of the case would have been delivered to serve as res judicata. A judgment is said to have been made on merits after the Judge judges the matter one way or the other, after taking testimony and applying his mind regarding the fact or fallacy of the complainant’s case. Thus, where the case is dismissed on account of failure of the complainant’s appearance; or the non-production by the claimant of a document even before the defendant’s written statement was filed, or if the decree was passed as a result of the defendant’s error in providing protection, or after denying leave to appeal, such decisions are not on the grounds.
Foreign Judgment against International or Indian law
The mistake must be apparent on the face of the proceedings. In England, it has been held that a mere mistake as to English law will not vitiate a foreign judgment, even though the mistake may appear on the face of the proceedings.“ In an old Madras case, this clause was referred to where a foreign court had exercised jurisdiction contrary to the principles of international law. Where a foreign court in an inquiry before it in a probate proceeding refused to recognise the law of British India applicable to the deceased immovable property in British India, it was held that the judgment of the foreign court was not one on which a suit will successfully lie” . “The judgment of a foreign court which awarded interest on costs does not become unenforceable under this section on the ground that there is no similar provision in the municipal law”.
The nature of the court decision is that it must be obtained without proper observance of the judicial procedure, the court rendering the judgment shall conform with the basic standards of natural justice, it must be comprised of unbiased people, behave reasonably without bias, it must provide appropriate notice to the parties to the dispute and it must provide sufficient opportunity to each party. Thus natural justice is opposed to a judgment granted to the defendant without warning to the suit having a fair chance to represent the cause. Similarly, a judgment against a party not adequately treated in the courts or tainted by the judge is contrary to natural justice and does not serve as res judicata. Accordingly, the foreign judgment of the competent court is definitive even though it holds an incorrect interpretation of the facts or the statute, providing that the minimum conditions of the judicial proceedings are ensured; the correctness of the judgment or the evidence is not defined as a prerequisite for the municipal court to accept its conclusiveness. A foreign judgment is not subject to the assault on the basis that the domicile rule was not adequately enforced in assessing the legitimacy of the adoption, or that whether the standards of natural justice were otherwise followed, the court disagreed with the finding of the foreign court.
The foreign judgment which has been obtained by the means of fraud will not act as a res judicata. Lord Denning has also stated about this matter he states that “No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud”.
“In the case of Satya v. Teja Singh, where a husband obtained a decree of divorce against his wife from an American Court averring that he was domiciled in America. Observing that the husband was not a bonafide resident or domicile of America, and he had played fraud on a foreign court falsely representing to it incorrect jurisdictional fact, the Supreme Court held that the decree was without jurisdiction and a nullity”.
Breach of any law in force in India
Where in our India any law is already enforced and the foreign judgment has breached any of the law which was already enforced then in that case the foreign judgment will not be enforceable in India.
Presumption as to Foreign Judgments (Section 14)
In the Civil Procedure Code, it is stated under Section 14 that the court shall presume that the document which is being produced in the certified copy of the foreign judgment and that judgment was given by the court of competent jurisdiction until it appears or is proved to be contrary to the record.
What are the effects?
The effects of Foreign Judgments are that they are binding, conclusive, and will act as a res judicata between the same parties.
Enforcement of foreign judgment
In India, a foreign judgment can be enforced in the following methods:
- By instituting a suit on such foreign judgments.
- By instituting execution proceedings .
By instituting a suit on such foreign judgments
By instituting a suit on such foreign judgments foreign judgments may be enforced. The decision which has been given by the foreign court, tribunal, etc. is not enforceable until such decision has been included in the decree of that country’s court. From the date of judgment three years have been given to file a suit.
By instituting execution proceedings
In such specified circumstances referred to in Section 44-A of the Code, a foreign judgment can also be enforced by execution proceedings. The said provision states that if a certified copy of a decree has been filed in a District Court by either of the superior courts of any reciprocal jurisdiction, the decree can be enforced in India as if it had been passed by the District Court.
Foreign Judgments have its vast mode of enforceability under the Civil Procedure Code that they are conclusive and they can be enforced in India and they will act as res judicata but there are certain exceptions mentioned in Section 13 which will stop the foreign judgments to be enforced.
- The Code of Civil Procedure,1908,s. 2(5).
- The Code of Civil Procedure,1908,s. 2(6).
- Badat and Co. v. East India Trading Co., AIR 1964 SC 538.
- R.Viswanathan v. Rukn-ul-Mulk Syed Abdul, AIR 1963 SC 1.
- Satya v. Teja Singh, AIR 1975 SC 120.
- Cardozo, J. In Loucks v. Standard Oil Corporation of New York, (1918) 224 NY 99.
- Gurdyal Singh v. Rajah of Faridkote, ILR 1895 22 Cal 222 (PC).
- Janardhan Mohandas Rajan Pillai v. Madhubhai Patel, AIR 2003 Bom 490.
- Lazarus Estates Ltd. v. Beasley, (1956) QB 702.
- AIR 1975 SC 105.
BY UDDESHYA YADAV | LOVELY PROFESSIONAL UNIVERSITY