Today,
in the era of globalization, there is a huge increase in transnational
operations. As there is an increase cross border transactions, there is also
increase in cross border dispute resolution. In some cases law governs the territorial jurisdiction and in some cases
such jurisdiction is restricted by agreement between parties. It is pertinent
to note that, a decree obtained from a court needs to go through execution
procedure in the Domestic Court for its enforcement. Every country has
its own procedure for enforcement of a foriegn Decree.
In
India, the Indian Code of Civil Procedure, 1908
governs the execution of judgments by foreign courts in India.
Definitions of "Foreign Court"
and "Foreign Judgment"under CPC
Section
2(5) of CPC defines the term 'foreign court' to mean a Court outside India and
not established or continued by the authority of the Government of India
Section
2(6) of CPC defines the term "foreign judgment" to mean any judgment
of a foreign Court.
Section 13 of CPC – Conclusiveness of a
foreign Decree:
Section
13 of the Code providing that a foreign judgment shall be conclusive between
the parties as to any matter thereby
directly adjudicated upon.
Therefore
once a Foreign Judgment is passed, according to section 13 of CPC, Res Judicata
operates between the parties on account of the said judgment.
When
a foreign Decree is not conclusive?
According
to Section 13 of CPC, a Foreign Judgment is not conclusive, if it falls under
any of the category mentioned below:
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.
Therefore
a foreign Judgment is not conclusive between the parties in terms of Section
13, if the same falls under any of the category mentioned above.
Section -14 –
Presumption as to Foreign Judgments:
Section
14 of CPC provides that, upon the production of any document purporting to be a
certified copy of a Foreign Judgment, the Court shall presume that the same was
pronounced by a Court of competent jurisdiction, unless the contrary appears on
the record or proved before the Court by a separate proceeding.
It is pertinent
to note that such presumption shall arise only on production of a certified
copy. Hence mere production of a photocopy is not sufficient.
Enforcement of a foreign Decree in India:
I.
Decree from a Reciprocating Country – Section 44A
Section
44A deals with the procedure relating to execution of a Foreign Decree passed by
the Courts in “Reciprocating Territory”. The procedure laid down by Section 44A
is as follows:
i Certified copy of
decree of the superior Court of any
reciprocating territory has to be filed in a
District Court. Once the same is
filed, the decree may be executed in India
as if it had been passed by the District Court.
ii.
Along with the
certified copy of the decree, a certificate from such superior Court stating
the extent, if any, to which the decree has been satisfied or adjusted shall be
filed. Such certificate shall, for the purposes of proceedings under this
section, be conclusive proof of the extent of such satisfaction or adjustment.
iii.
Once the Certified Copy is filed, the
provisions of section 47 of the CPC shall apply to the proceedings of a
District Court executing a decree under section 44A.
iv. The District Court
shall refuse execution of any such decree, if it is shown to the satisfaction
of the Court that the decree falls within any of the exceptions specified in
Clauses (a) to (f) of Section 13.
Explanation to Section 44A defines the term "Reciprocating
territory" as meaning any country or territory outside India which the
Central Government may, by notification in the Official Gazette, declare to be
a reciprocating territory for the purposes of this section.
Explanation to Section 44A defines the term "Decree"
with reference to a superior Court means any decree or judgment of such Court
under which a sum of money is payable, not being a sum payable in respect of
taxes or other charges of a like nature or in respect to a fine or other
penalty, but shall in no case include an arbitration award, even if such an
award is enforceable as a decree or judgment.
II.
Decree from any other country
If a foreign Decree is passed by a Foreign Court in any
country other than a reciprocating country, the enforcement of such foreign
decree would have to be made by filing a suit
in this regard before the Indian court of Competent jurisdiction in said matter.
