Enforcement of Foreign Decree in India

                                                                                                

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.