ENFORCEMENT OF FOREIGN

JUDGEMENTS

SUBMITTED TO: SUBMITTED BY:

Dr. Karan Jawanda Geetanjali Bhatia

B.A LLB(Hons)

18/15

Section A
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 ACKNOWLEDGEMENT
I would like to express my immense gratitude to our teacher “Dr. Karan Dhillon” for
providing me with this golden opportunity. I was able to learn a lot of information which
opened my mind into new horizons. I would also like to thank the library staff for helping
me and providing me with the books.

Thank you

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INDEX

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 INTRODUCTION
The Indian legal system is based on Common law system. The Constitution of India is inspired from laws
and statute of other countries, as many provisions of Indian Constitution has been borrowed from the
Statutes of other countries. Therefore, it is necessary that Indian Judiciary enforce such foreign decrees
and judgements in India which is in consonance with the basic fundamental rules and laws in force in
India.

Section 2(6) of the Code defines a “foreign judgement” to mean any judgement of a foreign court. Section
2(5) of the Code defines a ‘foreign court’ to mean a Court outside India and not established or continued
by the authority of the Central Government. A foreign decree is defined in Explanation 2 of Section 44A
of the CPC as, “Decree” with reference to a superior court means any decree or judgement 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 of a fine or other penalty, but shall in no case include an arbitral award, even if
such an award is enforceable as a decree or judgement. Thus judgements which are delivered by any court
in USA, France, England, Canada, Germany, Japan, China etc. are said to be foreign Judgement.

The Indian Judiciary has given various guidelines and judgement which are greatly inspired by laws of
other countries. One of the recent examples is Triple Talaq which has been declared unconstitutional by
Supreme Court. In recognizing freedom of the press, the Court relied on the U.S. Supreme Court’s
decision in Kovacs v. Cooper. In upholding the death sentence, the Supreme Court relied on the U.S.
cases of Furman v. Georgia, Arnold v. Georgia, and Proffitt v. Florida. Cases where conflict of laws
arises, judges do the comparative study of laws of various countries to reach a fruitful conclusion.1

CPC sections that deal with foreign judgement/decrees are Section 13, Section 14 and Section 44.
Section 13 embodies the principle of Private International Law that court will not enforce a foreign
judgement if the judgement is not that of a competent court. The rules laid down under section 13 are of
substantive law, as well, along with being that of procedural law.

NATURE AND SCOPE

A foreign judgement may operate as res judicata except in the six cases specified in the section 13 and
subject to the other conditions mentioned in Sec. 11 of C.P.C. The rules laid down in this section are rules
of substantive law and not merely of procedure. 2The Section is not confined in its application to planitffs.
A defendant is equally entitled to non-suit the plantiff on the basis of foreign judgement.3

1
https://blog.ipleaders.in/foreign-awards/
2
Mologi Nar Singh Rao Shitole vs. Sankar Saran, AIR 1962 SCC 1737
3
Badat and Co. v. East India Trading Co., AIR 1964 SC 538
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 OBJECT

The judgement of a foreign court is enforced on the principle that where a court of competent jurisdiction
has adjudicated upon a claim, a legal obligation arises to satisfy that 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 civilized jurisdictions. Through part of the judicial system of
each State these common rules have been adopted to adjudicate upon disputes involving a foreign element
and to effectuate judgements 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 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 a great jurist: "We are not so provincial as 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 some fundamental principle of justice, some prevalent
conception of good morals, some deep-rooted tradition of the common weal."

PROVISIONS RELATING TO FOREIGN JUDGEMENT IN CPC

Section 44A – Execution of decrees passed by Courts in reciprocating territory-(1) Where a certified copy
of a decree of any of the superior courts of any reciprocating territory has been filed in a District Court,
the decree may be executed in India as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior court
stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for
the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or
adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the
proceedings of a District Court executing a decree under this section, and 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 I: “Reciprocating territory” means 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, and “Superior Courts”, with reference to any such territory, means such courts as
may be specified in the said notification.

Explanation II: “Decree” with reference to a superior Court means any decree or judgement 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 of a fine or other penalties, but shall in no case include an arbitration award, even
if such an award is enforceable as a decree or judgement.

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Section 13. When foreign judgement not conclusive.

A foreign judgement 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 litigating 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

1[India] in cases in which such law is applicable;

(d) where the proceedings in which the judgement 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].

S.14. Presumption as to foreign judgements:- The Court shall presume upon the production of any
document purporting to be a certified copy of a foreign judgement that such judgement 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.

FOREIGN JUDGEMENT WHEN NOT BINDING

A foreign judgement is not conclusive as to any matter directly adjudicated upon, if one of the conditions
specified in clauses (a) to (f) of Section 13 is satisfied and it will then be open to a collateral attack.

(a) FOREIGN JUDGEMENT NOT BY A COMPETENT COURT :

It is a fundamental principle of law that the judgement or order passed by the court which has no
jurisdiction is null and void. Thus a judgement of a foreign to be conclusive between the parties must be a
judgement pronounced by court of competent jurisdiction. Such judgement must be by a court competent
by the law of the state which has constituted it and in an international sense it must have directly
adjudicated upon the matter which is pleaded as ‘res judicata’. But what is conclusive is the judgement
i.e. the final adjudication and not the reasons for the judgement given by the foreign court.4

Rules as to competent jurisdiction- In Dicey the rule as to competent jurisdiction has been stated as
follows: In action in personam in respect of any cause of action, the courts of a foreign country have
jurisdiction in following cases:

1. Where at the time of the commencement of the action the defendant was the resident or present in
such country, so as to have the benefit, and be under the protection of the law thereof.

2. Where the defendant is at the time of the judgement in the action the subject or citizen of that country.

4
C.K.Takwani, Eastern Book Company, 8th Ed., Pg.133
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3. Where the party objecting to the jurisdiction of the courts of such country, has by his own conduct
submitted to such jurisdiction i.e. has precluded himself from objecting thereto-

a) By appearing as plaintiff in the action or counter-claiming; or

b) By voluntarily appearing as defendant in such action; or

c) By having expressly or impliedly contracted to submit to the jurisdiction of such courts”.

The judgement has to be of a competent court, that is a court having jurisdiction over the parties and the
subject matter. Even a judgement in rem is open to attack on the ground that the court which gave it had
no jurisdiction to do so.5

Case: Gurdayal Singh vs. Rajah of Faridkote 6 in this 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 ex parte 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 at Faridkot nor was he domiciled there. On these facts, on general
principles of International Law, the Faridkot court had 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 judgement 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 the embezzlement took place at Faridkot, was not sufficient to give jurisdiction to the
Faridkot court would have had complete jurisdiction to entertain the suit and to pass a decree against him.

In another case of Andhra Bank Ltd.. v. R. Srinivasan7, a suit was filed against a guarantor within the
proper jurisdiction. However during the pendency of the suit the defendant died and the legal
representatives of the defendant were brought on record. The decree was passed and came up for
execution, the legal representatives of the defendant questioned the executability of the said decree on the
basis that since they had not submitted to the jurisdiction of the said Court, therefore the decree was not
executable against them under section 13(a) of CPC.

The issue before the Supreme Court was that whether, the suit is validly instituted, but during the
pendency of the suit one of the defendants expires and his non-resident foreign legal representatives are
brought on record, does the rule of private international law in question (as referred to above in the case
of Sirdar Gurdial Singh’s case) invalidate the subsequent continuance of the said suits in the court before
which they had been validly instituted.

The Supreme Court after referring to a chain of cases, observed that the material time is when the test of
the rule of private international law is to be applied and it is the time at which the suit was instituted.
Therefore it was held that the legal representatives of the dead defendant, although foreigners were bound
by the decree and the section 13(a) could not help them in any way.

In the case of Satya v. Teja8 the Supreme Court held that the challenge under S. 13 was not limited to
civil disputes alone but could also be taken in criminal proceedings. In this case a foreign decree of
divorce was obtained by the husband from the Nevada State Court in USA in absence of the wife without
her submitting to its jurisdiction. It was held to be not binding and valid upon a criminal court in
proceedings for maintenance.

5
Mahesh Prasad Tandon & Justice Rajesh Tandon, Allahabad Law Agency,26 th Ed.,Pg 94
6
(1893-94) 21 1A 171
7
AIR 1962 SC 232.
8
AIR 1975 SC 105
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In K.N. Guruswami v. Muhammad Khan Sahib9 the court expressed its view as to the differences in
individual capacity and contractual capacity. In this case, it was alleged that since the defendants were
carrying on business in a partnership in the foreign state on the date of the action, and that the suit related
to certain dealings with the firm, the issue of  jurisdiction should be presumed against the defendants
although an ex parte decree had been passed against them. The Court held that a mere fact of entering into
a contract in the foreign country, does not lead to the inference that the defendant had agreed to be bound
by the decisions of the Courts of that country. Therefore it was held that the decree was passed against the
defendants without any jurisdiction.

In another case of I&G Investment Trust v. Raja of Khalikote 10, It involved an action initiated in
England against an Indian subject (Respondent) on the basis of a contract which was governed by the
English Law. In this regard, the Calcutta High Court, while considering that under Order XI of the
Supreme Court Rules of England, summons could be served upon a person outside the jurisdiction of the
English Courts (assumed jurisdiction), on the basis that a contract governed by English law had been
breached, held that since only the payments were governed by English law, a willingness to submit to the
English Jurisdiction could not be shown. The Court in obiter dictum observed that even though it is held
that the contract is governed by the English law, it could not be assumed to give jurisdiction in the
International sense, although it may give rise to a cause of action. On basis of this the Calcutta High Court
decided that the decree was not executable in India.

(B) FOREIGN JUDGEMENT NOT GIVEN ON MERITS:-

In order a foreign judgement to operate as Res Judicata, it must have been given on merits of the case. A
judgement is said to be given on merits when after taking evidence and after applying his mind regarding
the truth or falsity of the plaintiffs case the judge decides the case one way or the other. Thus, when the
suit is dismissed for default of appearance of the plaintiff; or for non-production of the document by the
plaintiff even before the written statement was filed by the defendant, or where the decree was passed in
consequence of default of defendant in furnishing security, or after refusing leave to defend, such
judgements are not on merits.11

The real test for deciding whether the judgement has been given on merits or not is to see whether it was
merely formally passed as a matter of course or by way of penalty of any conduct of the defendant, or is
based upon a consideration of truth or falsity of the plaintiffs claim, notwithstanding the fact that the
evidence was led by him in the absence of the defendant.

D.T. Keymer v. P. Viswanatham12 in this case, the facts are such that a suit for money was brought into
an English Courts against the defendant as a partner of a firm, wherein the defendant denied that he was a
partner of the said firm and also that any money was due. Thereupon the defendant was subjected to
certain interrogation. On his omission to answer such interrogation his right to defence was suspended
and judgement was delivered favouring the plaintiff. When the judgement was sought to be enforced in
India, the defendant raised the objection on the point that the judgement pronounced by the foreign court
had not been rendered on the merits of the case and hence was not conclusive under the provisions of
Section 13(b) of CPC. The matter reached the Privy Council, where the Court held that since the
defendant’s defence was unjustly suspended by the foreign court and it can be concluded that the
defendant has not defended the claim and the claim of the plaintiff was not investigated duly, the decision
process was incomplete not conclusive by the provisions of S. 13(b) and therefore, could not be enforced
in India.

9
AIR 1933 Mad 112.
10
AIR 1952 Cal.  508
11
C.K.Takwani, Eastern Book Company, 8th Ed., Pg.130
12
(1916-1917) 44 1A
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In the case of Y. Narasimha Rao v. Y.Venkata Lakshmi13 where the Court had held that the judgement
should be a result of the contest between the parties. This requirement is fulfilled only when the
respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction
of the court and contests the claim, or agrees to the passing of the decree with or without appearance. The
Court further held that a mere filing of the reply to the claim under  protest and without submitting to the
jurisdiction of the Court, or an appearance in the court either in person or through a representative for
objecting to the jurisdiction of the court, should not be considered as a decision on the merits of the case.
A judgement or decree given by the court, in the absence of defendant and any material defence from the
side of defendant and without considering the plaintiff’s evidences, cannot
be said that the judgement has been given on merits. 

In the case of  R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar14 the Court held that if the
foreign judgement is not based upon the merits, whatever the procedure might be in the foreign country in
passing judgements, those judgements will not be conclusive. The Court held that the burden of proof for
showing that the execution/enforceability of the judgement or decree was excepted due to the operation of
S. 13 is upon the person resisting the execution. In the case of B. Nemichand Sowcar v. Y.V. Rao a suit
was instituted in the foreign Court where the defendant entered appearance and filed his written
statement. On the day of the hearing the defendant remained absent. The court passed a decree without
hearing any evidence. The Court held that the decree was not passed on the merits of the case and hence
inconclusive within the meaning of S. 13(b) of CPC.

In the aforementioned cases the Courts have held that the judgements were not passed on the merits of the
case and hence were inconclusive. The following are the cases in which the Courts have held that the
judgements were passed on the merits of the case.

In the case of Gajanan Sheshadri Pandharpurkar v. Shantabai 15 the Court held that the true test for
determining whether a decree is passed on the merits of the claim or not is whether the judgement has
been given as a penalty for any conduct of the defendant or whether it is based on a consideration of
the truth or otherwise of the plaintiff’s case. Since in the present case, although the defendant was
considered to be ex-parte, the claim of the plaintiff was investigated into, the objection under S. 13(b) was
held to be unsustainable.

(C) WHERE THE JUDGMENT IS PASSED DISREGARDING THE INDIAN LAW OR THE
INTERNATIONAL LAW.

A judgment based upon an incorrect view of international law or a refusal to recognize the law of India
where such law is applicable is not conclusive. But the mistake must be apparent on the face of the
proceedings. Thus, where in a suit instituted in England on the basis of a contract made in India, the
English court erroneously applied English law, the judgment of the court is covered by this clause in as
much as it is a general principle of Private International Law that the rights and liabilities of the parties to
a contract are governed by the place where the contract is made (lex loci contractus).

"When a foreign judgment is founded on a jurisdiction or on a ground not recognized by Indian law or
International Law, it is a judgment which is in defiance of the law. Hence, it is not conclusive of the
matter adjudicated therein and, therefore, unenforceable in this country."16

The case of Anoop Beniwal v. Jagbir Singh Beniwal 17 relates to a matrimonial dispute between the
parties. The facts of the case are that the plaintiff had filed a suit for divorce in England on the basis of

13
(1991)3 SCC 451
14
AIR 1914 Mad. 556
15
AIR 1939 Bom. 374.
16
C.K.Takwani, Eastern Book Company, 8th Ed., Pg.131
17
AIR 1990 Del. 305 at 311.
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the English Act, that is the Matrimonial Causes Act, 1973. The particular ground under which the suit
was filed was “that the respondent has behaved in such a way that the petitioner cannot reasonably be
expected to live with the respondent.” This ground is covered by S. 1(1)(2)(b) of the Matrimonial Causes
Act, 1973. The decree was obtained in England and came to India for enforcement. The respondent
claimed that since the decree was based on the English Act, there was refusal by the English Court to
recognise the Indian Law. The Court held that under the Indian Hindu Marriage Act under S. 13(1)(ia),
there is a similar ground which is “cruelty” on which the divorce may be granted. Therefore the English
Act, only used a milder expression for the same ground and therefore there was no refusal to recognise
the law of India. Thus the decree was enforceable in India.

In the case of I & G Investment Trust v. Raja of Khalikote 18, a suit was filed in the English Jurisdiction
to avoid the consequences of the Orissa Money Lenders Act. The Court held that the judgment was
passed on an incorrect view of the International law. The Court further observed that, although the
judgment was based on the averment in the plaint that the Indian law did not apply, however there was no
“refusal” to recognise the local laws by the Court.19

In the case of Panchapakesa Iyer v. K.N. Hussain Muhammad Rowther 20, the facts were that the
foreign Court granted the probate of a will in the favour of the executors. The property was mostly under
the jurisdiction of the foreign Court, but some of it was in India. A suit came to be filed by the wife of the
testator against the executors for a claim of a share in the property. The suit of the widow was decreed
and a part of it was satisfied. The remaining part the widow assigned in favour of the Plaintiff in the
present suit. In the present suit the Plaintiff relied upon the foreign judgment for a claim against the
defendants for a share in the property within the jurisdiction of the domestic Court. One of the defences
which was taken for resisting the suit was that the widow’s claim was founded upon a breach of a law in
force in India. The Court observed that

“She made as the Learned Subordinate Judge has found in another part of his judgment, a claim which
could not be entirely supported by the law of British India; but that is a different thing from founding a
claim on a breach of the law in British India, for instance a claim in respect of a contract which is
prohibited in British India.21”

Another issue which fell for the Courts consideration was that whether the foreign Court had decreed the
suit on an incorrect view of International Law. In this regard the Court held that the foreign Court had
adopted an incorrect view of International Law, since a foreign Court does not have jurisdiction over the
immovable property situated in the other Country’s Court’s jurisdiction. Therefore the judgment was
declared to be inconclusive and unenforceable in India.

(D)FOREIGN JUDGMENT OPPOSED TO NATURAL JUSTICE

It is the essence of a judgment of a court that it must be obtained after due observance on the judicial
process, i.e., the court rendering the judgment must observe the minimum requirements of natural justice -
it must be composed of impartial persons, act fairly, without bias, and in good faith; it must give
reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his
case. A judgment, which is the result of bias or want of impartiality on the part of a judge, will be
regarded as a nullity and the trial "corum non judice".

Thus a judgment given without notice of the suit to the defendant or without affording a reasonable
opportunity of representing his case is opposed to natural justice. Similarly, a judgment against a party
18
AIR 1952 Cal. 508.
19
Ibid. at p. 525 para 43 and 44.
20
AIR 1934 Mad. 145.
21

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not properly represented in the proceedings or where the judge was biased is contrary to natural justice
and,therefore, doesnot operate as resjudicata.

But the expression "natural justice" in clause (d) of Section 13 relates to the irregularities in procedure
rather than to the merits of the case. A foreign judgment of a competent court, therefore, is conclusive
even if it proceeds on an erroneous view of the evidence or the law, if the minimum requirements of the
judicial process are assured; correctness of the judgment in law or evidence is not predicated as a
condition for recognition of its conclusiveness by the municipal court. Thus, a foreign judgment is not
open to attack on the ground that the law of domicile had not been properly applied in deciding the
validity of adoption or that the court disagrees with the conclusion of the foreign court, if otherwise the
principles of natural justice have been complied with.22

In the case of Hari Singh v. Muhammad Said23 the Court found that the foreign Court did not appoint a
person willing to act as a guardian ad litem of the minor defendant. The court also held that proceedings
could not have proceeded ex-parte against the minor. The Court further held that the minor defendant did
not have any knowledge of the suit being pending against him even after he became a major which was
before the judgment was passed. On this basis the court held that the passing of the judgment against the
minorwasopposedthenatural justice within the meaning S.13(d) of CPC. The Court also held that since the 
legal representatives of one of the defendants were also not brought on record, this also amounted to
denial of natural justice. Therefore the judgment was held to be inconclusive qua these defendants.

In the case of Lalji Raja & Sons v. Firm Hansraj Nathuram24 the Supreme Court held

that just because the suit was decreed ex-parte, although the defendants were served with the summons,
does not mean that the judgment was opposed to natural justice. It was further held that it is a well
established principle of private international law that if a foreign judgment was obtained by fraud or if the
proceedings in which it was obtained were opposed to natural justice, it will not operate as res judicata.

In the case of Sankaran Govindan v. Lakshmi Bharathi25, here the Supreme Court while elucidating the
scope of section 13(d) of CPC and the expression “principles of natural justice” in the context of foreign
judgments opined as:

“… it merely relates to the alleged irregularities in procedure adopted by the adjudicating court and has
nothing to do with the merits of the case. If the proceedings be in accordance with the practice of the
foreign court but that practice is not in accordance with natural justice, this court will not allow it to be
concluded by them. In other words, the courts are vigilant to see that the defendant had not been deprived
of an opportunity to present his side of the case. The wholesome maxim audi alterem partem is deemed to
be universal, not merely of domestic application, and therefore, the only question is, whether the minors
had an opportunity of contesting the proceeding in the English Court. If notices of the proceedings were
served on their natural guardians, but they did not appear on behalf of the minors although they put in
appearance in the proceedings in their personal capacity, what could the foreign court do except to
appoint a court guardian for the minors.”

In this case it was held by the court that since the natural guardians who were served with the notices did
not exhibit any interest in joining the proceedings in the court, the appointment of an officer of the court
to act as a guardian of the minors in the proceedings was substantial compliant to the rule of Natural
justice.

The supreme court observed in the case that “it is extremely difficult to fix with precision the exact cases
in which the contravention of any rule of procedure is sufficiently serious to justify a refusal of
22
C.K.Takwani, Eastern Book Company, 8th Ed., Pg.131
23
AIR 1927 Lah. 200.
24
AIR 1971 SC 974
25
AIR 1974 SC 1764
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recognition or enforcement of a foreign judgment and it is difficult to trace a definite gradations of
injustice so as to reach a definite point at which it deserves to be called the negation of natural justice”

Considering the practice of the courts in India three grounds are mostly taken into considerations as
determining factors for the principle of natural justice in respect of foreign judgement;

• If the defendant was not served with any notice of the proceedings; or

• If the defendant was not given adequate opportunity to present the case; or

• If the judge was personally interested in the subject matter of the suit.

Where a judgment is passed by a court composed of persons who have an interest in the judgement and its
result, it would be contrary to natural justice. Bias on part of judge cannot be inferred from the fact that he
suggested that possibility of compromise of the dispute between the parties to the suit be explored.

In case of I.G. Investment vs Raja of Khalikote, the court held that although the summons were issued
but never served and the decree was passed ex-parte the proceedings were opposed to principles of
natural justice hence inconclusive.

Hence the foreign court which delivers the judgment or decree must consist of impartial persons, they
must act in good faith and against any bias, they must give reasonable notice to the parties and provide
each party adequate opportunity to present the case

(E)FOREIGN JUDGMENT OBTAINED BY FRAUD

It is a well settled principle of Private International Law that if foreign judgments are obtained by fraud, it
will not operate as res judicata.It has been said “Fraud and Justice never Dwell together” (fraus et jus
nunquam cohabitant); or “ Fraud and deceit ought to benefit none” (fraus et dolus nemini patrocinari
debent)

Lord Denning observed: " No judgment of a court, no order of a Minister, can be allowed to stand, if it
has been obtained by fraud." Cheshire rightly states: "It is firmly established that a foreign judgment is
impeachable for fraud in the sense that upon proof of fraud it cannot be enforced by action in England."
All judgments whether pronounced by domestic or foreign courts are void if obtained by fraud, for fraud
vitiates the most solemn proceeding of a court of justice.
Explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not
impeachable from within, it might be impeachable from without. In other words, though it is not
permissible to show that the court was "mistaken", it might be shown that it was "misled". There is an
essential distinction between mistake and trickery. The clear implication of the distinction is that an
action to set aside a judgment cannot be brought on the ground that it has been wrongly decided, namely,
that on the merits, the decision was one which should not have been rendered, but it can be set aside if the
court was imposed upon or tricked into giving the judgment.26

In the case of Satya v. Teja Singh27 the Supreme Court held that since the plaintiff had misled the foreign
court as to its having jurisdiction over the matter, although it could not have had the jurisdiction, the
judgment and decree was obtained by fraud and hence inconclusive.
In Narsimha Rao v. Venkata Kakshmi,28 A husband obtained a decree of divorce against his wife B
again from an American High Court on the ground that he was a resident of America. Then he remarried

26
C.K.Takwani, Eastern Book Company, 8th Ed., Pg.132
27
AIR 975 SC 105
28
1991 SCC 451
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C. B filed a criminal complaint against A and C for bigamy. A and C filed an application for discharge.
Dismissing the application, the Supreme Court held that the decree of dissolution of Marriage was
without jurisdiction in as much as neither the marriage was solemnized nor the parties last resided
together in America. It was, therefore, unenforceable in India.

In another case of Sankaran v. Lakshmi29 the Supreme Court held as follows: “In other words, though it
is not permissible to show that the court was mistaken, it might be shown that it was misled. There is an
essential distinction between mistake and trickery. The clear implication of the distinction is that an
action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely
that on the merits, the decision was one which should not have been rendered but that it can be set aside if
the Court was imposed upon or tricked into giving the judgment.”

(F)FOREIGN JUDGMENT FOUND ON BREACH OF INDIAN LAW

Where a foreign judgment is founded on a breach of any law in force in India, it would not be enforced in
India. The rules of Private International Law cannot be adopted mechanically and blindly. Every case,
which comes before an Indian Court, must be decided in accordance with Indian law. It is implicit that the
foreign law must not offend our public policy. Thus a foreign judgment for a gaming debt or on a claim,
which is barred under the Law of Limitation in India, is not conclusive. Similarly, a decree for divorce
passed by a foreign court cannot be confirmed by an Indian court if under the Indian law the marriage is
indissoluble. 
It is implicit that the foreign law and foreign judgment would not offend against our public policy.30

In the case of I&G Investment Trust v. Raja of Khalikote, it was held as follows:

“It is argued that the Orissa Money Lender’s Act precludes a decree being passed for more than double
the principal amount and in passing a decree, based on a claim which violates that rule, the English Court
sustained a claim founded on the breach of a law in force in the State of Orissa. I am unable to accept the
argument. The claim was not based on the law as prevailing in India at all. Rightly or wrongly, the
plaintiffs alleged that the parties were governed not by the Indian law but the English Law. The English
Court accepted that plea and were consequently not sustaining a claim based on any violation of the law
in India. Suppose, that the defendant had submitted to the jurisdiction of the English Court and that Court
passed a decree. Such a decree would by implication have decided that the defendant was bound by
English Law and that the Orissa Money Lender’s Act did not apply. Such a decision would be binding
from the international point of view and the point could not be further agitated in these Courts.”

PRESUMPTION AS TO FOREIGN JUDGMENT- SECTION 14

Section 14 of the Code declares that the court shall presume, upon the production of any 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, or is proved. However, if for
admissibility of such copy any further condition is required to be fulfilled, it can be admitted in evidence
only if that condition is satisfied.

Section 14 merely states the presumption an Indian court takes when a document supposing to be a
certified copy of a foreign judgment is presented before it. The Indian Courts presume that a Court of
competent jurisdiction pronounced the judgment, unless the contrary appears on the record, but proving
want of jurisdiction may displace such presumption.
29
AIR 1974 SC 1764
30
C.K.Takwani, Eastern Book Company, 8th Ed., Pg.134
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In Narsimha Rao V. Venkata Lakshmi 31the Supreme Court held that mere production of a photocopy
of a decree of a foreign court is not sufficient. It is required to be certified by a representative of the
Central Government in America.

In the case of Padmini Mishra  v.  Ramesh Chandra Mishra held that when a party to a proceeding before
a court at New York did not take any plea about want of jurisdiction of the court at New York and
allowed the matter to proceed ex parte, the presumption under S. 14has to be made. However this
presumption is rebuttable.

Submission To Jurisdiction Of Foreign Court

It is well established that one of the principles on which foreign courts are recognized to be
internationally competent is voluntary submission of the party to the jurisdiction of such foreign court.
The reason behind this principle is that having taken a chance of judgment in his favor by submitting to
the jurisdiction of the court, it is not open to the party to turn round when the judgment is against him and
to contend that the court had no jurisdiction.

Submission to jurisdiction of a foreign court may be express or implied. Whether the defendant has or has
not submitted to the jurisdiction of a foreign court is a question of fact, which must be decided in the light
of the facts, and circumstances of each case.

Conclusiveness of Foreign Judgment

As stated above, a foreign judgment is conclusive and will operate as res judicata between the parties and
privies though not strangers. It is firmly established that a foreign judgment can be examined from the
point of view of competence but not of errors. In considering whether a judgment of a foreign court is
conclusive, the courts in India will not require whether conclusions recorded by a foreign court are correct
or findings otherwise tenable. In other words, the court cannot go into the merits of the original claim and
it shall be conclusive as to any matter thereby directly adjudicated upon between the same parties subject
to the exception enumerated in clauses (a) to (f) of Section 13. 

ENFORCEMENT OF FOREIGN JUDGEMENTS

A foreign judgment, which is conclusive under Section 13 of the Code, can be enforced In India in the
following ways:

1. By instituting a suit on such foreign judgment: A foreign judgment may be enforced by instituting
a suit on such foreign judgment. The general principle of law is that any decision by a foreign
court, tribunal or quasi-judicial authority is not enforceable in a country unless such decision is
embodied in a decree of a court of that country. In such a suit, the court cannot go into the merits
of the original claim and it shall be conclusive as to any mater thereby directly adjudicated upon
between the
same parties. Such a suit must be filed within a period of three years from the date of the judgment
.
2. Execution Proceedings A foreign judgment may also be enforced by proceedings in execution in
certain specified cases mentioned in Section 44-A of the Code. The said section provides that
where a certified copy of a decree if any of the superior courts of any reciprocating territory has
been filed in a District Court, the decree may be executed in India as if it had been passed by the
District Court. When a foreign judgment is sought to be executed under Section 44-A, it will be

31
(1991) 3 SCC 451
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 open to the judgment-debtor to rake all objections, which would have been open to him
under Section 13 if a suit had been filed on such judgment. The fact that out of six exceptions
there\has been due compliance with some of the exceptions is of no avail. The decree can be
executed under Section 44-A only if all the conditions of Section 13 (a) to (f) are satisfied.32

CONCLUSION

A foreign judgment would be conclusive as to any matter thereby directly adjudicated upon between the
same parties. Hence we can conclude that a judgment of a foreign Court creates estoppel or res judicata
between the same parties, provided such judgment is not subject to attack under any of the clauses (a) to
(f) of Section 13 of the Code. If any claim is made by any party and subsequently abandoned at the trial
of a suit and if the decree in that suit necessarily implies that claim has not met with acceptance at the
hands of the court, then the court must be deemed to have directly adjudicated against it. Almost the
grounds applicable to refuse the foreign judgements are same everywhere. It is the interpretation of those
grounds which create these problems for example the jurisdiction requirement of the Japanese court are
different then the Indian courts. Therefore, harmonising or universalising the law relating to foreign
judgment will to a great extent reduce the anomalies of the issue resulting in recognition and enforcement
of foreign judgment more often.

32
C.K.Takwani, Eastern Book Company, 8th Ed., Pg.135
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