Introduction
Foreign judgments are an important part of the Code of Civil Procedure, 1908. Sections 13 and 14 of the CPC deal with the recognition and conclusiveness of foreign judgments in India. These provisions embody the principle of private international law that a judgment delivered by a foreign court of competent jurisdiction can be enforced by an Indian court and will operate as res judicata between the parties.
In this blog, we will discuss the meaning of foreign court and foreign judgment, the nature and scope of foreign judgments, the legal provisions under CPC, the circumstances in which a for-eign judgment is not binding, the burden of proof, presumption under Section 14, enforcement of foreign judgments, and important case laws.
1. Foreign Court
“Foreign court” is defined under Section 2(5). It means a court outside India and not established or continued by the authority of the Central Government.
2. Foreign Judgment
The term foreign judgment is defined under Section 2(6). It means the judgment of a foreign court. In other words, a foreign judgment means an adjudication by a foreign court upon a mat-ter before it.
Thus, judgments delivered by courts in England, France, Germany, USA, etc. are foreign judg-ments.
3. Nature and Scope of Foreign Judgment
A foreign judgment pronounced by a foreign court is conclusive i.e. executable and acts as res judicata between the same parties and for the same cause of action.
This principle upholds the applicability of private international law that a judgment pronounced by a foreign court must be given the same respect as that of a judgment of a domestic court in any country.
4. Legal Provisions under CPC Related to Foreign Judg-ment
Sections 13 and 14 of CPC enact a rule of res judicata in case of foreign judgments.
These provisions embody the principle of private international law that a judgment delivered by a foreign court of competent court can be enforced by the Indian court and will operate as res judicata between the parties.
What is conclusive is the judgment, i.e. the final adjudication and not the reasons for the judg-ment given by the foreign court.
Section 13 of the code provides the criteria for recognition of a foreign judgment and is a pre-condition to any enforcement proceedings.
Unless a foreign judgment passes the conclusiveness test under Section 13 of the Code Civil Procedure, it cannot be enforced.
According to section 13 of the C.P.C., a foreign judgment is conclusive except when it:
1. Not pronounced by a court of competent court jurisdiction;
2. Not given on the merits of the case;
3. Against international or Indian law;
4. Opposed to the principles of natural justice;
5. Obtained by fraud;
6. Founded on a breach of Indian Law.
5. Foreign Judgment When Not Binding – Section 13
A foreign judgment 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 col-lateral attack.
In following cases six cases, a foreign judgment shall not be conclusive:
5.1 Foreign Judgment Not by a Competent Court
It is a fundamental principle of law that the judgment or order passed by the court which has no jurisdiction is null and void.
Thus, a judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent jurisdiction.
In general, if a subject matter and the parties related to the Indian territory, the foreign court would not have jurisdiction to try such suits.
However, if the parties are presently domiciled in that foreign territory, then the foreign court will per se have jurisdiction to try the suit or if one of the parties is domiciled and upon notice, the other party who is not domiciled acquiesces to such jurisdiction by participating in the pro-ceedings or if neither of them one domiciled as such but they are on a visit to a foreign country and they both have expressly agreed to the jurisdiction of foreign courts or of the cause of action or a part of the cause of action has arisen in such foreign territory.
In either of the cases above, the foreign court will be a court of competent jurisdiction.
In this regard, Section 14 provides the role of presumption wherein if a certified copy of the for-eign judgment has been filed, then it shall be presumed by the Indian court that such foreign court was a court of competent jurisdiction.
However, it is a rebuttable presumption.
Even though the court is duly bound to raise the presumption of the word “shall” has been used, the opposite party may still prove evidence to disprove the jurisdiction of the foreign court.
5.2 Foreign Judgment Not on Merits
In order to operate as res judicata, a foreign judgment must have been given on merits of the case.
The test for deciding whether the judgment 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 for any conduct of the defendant or is based upon a consideration of the truth or falsity of the plaintiff’s claim, not-withstanding the fact that the evidence was led by him in the absence of the defendant.
A decree of a foreign court, even if passed ex-parte will be binding on the parties thereto and will be conclusive under Section 13 if evidence was taken and decisions were given by the for-eign court on a consideration of the evidence.
But an ex-parte foreign decree passed in a summary manner, under certain special procedure without going into the merits of the case or taking evidence, is not conclusive under Section 13(b) and cannot be executed in India.
Where the foreign judgment is not given on examination on the points of controversy between the parties and seems to have been given ex-parte on the pleading and documents of the plaintiff without going into the controversy between the parties, as the defendant was not present, it was held to be not a judgment on merits.
It was not conclusive.
In Satya v. Teja 1975 SC, it was held that if an ex-parte decree has been obtained in a foreign court and it is proved that such decree was passed without the evidence of the plaintiff, it will not be conclusive proof because the case is not on merits and hence, Section 13 would not ap-ply.
The Indian court in order to examine the merits will be free to examine whether the evidence was taken or not and it will be for that purpose will be free to examine the evidence in the record in the foreign judgement.
However, while examining such evidence, the court will not get into the correctness of the evi-dence, rather only whether the evidence was actually taken or not.
5.3 Foreign Judgment Against International or Indian Law
A judgment based upon an incorrect view of international law or a refusal to recognise the law of India where such law is applicable is not conclusive.
But the mistake must be apparent on the face of the proceedings.
For example, in a divorce proceeding, the Hindu Marriage Act would have applied but the for-eign court did not apply the Hindu Marriage Act.
Similarly, the law of limitation would have applied and the suit would have been barred under the Indian Limitation Act but the foreign court still tried the suit.
5.4 Foreign Judgment Opposed to Natural Justice
It is the essence of a judgment of a court that it must be obtained after due observance of the ju-dicial process, i.e. the court rendering the judgment must observe the minimum requirements of natural justice.
It must be composed of impartial persons who 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 re-garded as a nullity and the trial coram non judice.
The cases where the summons was not served upon two opposite parties or it was served but not duly served or the cases where the opposite party was not given the opportunity to present all its evidence or where he was not given the right to properly cross-examine the witness of the other party, it will be a case of defeat of natural justice.
5.5 Foreign Judgment Obtained by Fraud
Fraud and justice never dwell together.
It is a well-established principle of Private International Law that if a foreign judgment is ob-tained by fraud, it will not operate as res judicata.
Such fraud can be related to the jurisdictional fact as well to mislead the court, for example, the plaintiff in the foreign court was not domiciled in that territory.
Still, he represented to the foreign court that he is domiciled or it may be a misrepresentation re-garding the jurisdictional fact pertaining to the opposite party.
For instance, the opposite party is not domiciled and the plaintiff represents that the opposite par-ty is so domiciled.
In Narasimha Rao vs. Venkata Lakshmi, A (husband) obtained a decree of divorce against B (wife) again from American court on the ground that he was a resident of America.
Then he remarried 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 inasmuch as neither the marriage was solemnised nor the parties last resided together in America.
It was, therefore, unenforceable in India.
It may also be a fraud committed in reference to the issue of summons by the court to the de-fendant.
5.6 Foreign Judgment Founded 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.
6. Burden of Proof
In International Woolen Mills v. Standard Wool (U.K.) ltd. 2001 the Supreme Court held that the burden of proof strictly lies upon the defendant to prove that exception is there.
However, the burden is only to a reasonable extent.
7. Presumption as to Foreign Judgment – Section 14
Section 14 provides that the Court shall presume the jurisdictional competency of foreign court pronouncing foreign judgment upon the production of the certified copy of such foreign judg-ment unless the contrary is proved.
This presumption is rebuttable presumption of law.
In Shabaan Rotkin vs. Shahid Rotkin 1999 Guj.L.R. 111(D.B), where the petitioner who had relied upon an order of the High Court of Republic of Botswana had not produced any certified copy of the order but produced only a simple copy.
It was held that no implicit reliance could be placed in habeas corpus proceedings on an uncerti-fied copy of the order.
Regarding certified copies, Section 77 read with Section 26, the Evidence Act provides that the court may presume that such certified copy is a true record of the judgement.
However, Section 86 uses the word “may presume” and therefore, it is discretionary upon the court to make such presumption and if it does not, then the party will have to prove the foreign judgement.
8. Enforcement of Foreign Judgment
A foreign judgment which is conclusive under Section13 of the code can be enforced in India in the following ways:-
1. By instituting a suit on such foreign judgment within 3 years from the date of judgment. In such suit, the court cannot go behind the merits of the original claim.
2. By instituting execution proceedings under Section 44-A of the Code.
9. Foreign Judgment and Res Judicata
A foreign judgment is conclusive as to any matter adjudicated upon by a competent foreign court.
Section 13 of the Code in essence enacts a rule of res-judicata is relation to foreign judgment.
Hence if a foreign judgment delivered by a court having jurisdiction is he matter and satisfying other essentials of res-judicata, would operate as res-judicata.
10. Foreign Judgment and Rule of Estoppel
A foreign judgment which is conclusive as to any matter adjudicated upon a competent foreign judgment estops courts in India to entertain the same matter again.
The rule of conclusiveness of foreign judgment is rule of procedure and meant to give finality to the foreign judgment.
It stops courts in India to try the same matter again.
The principle of estoppel is rule of evidence and prohibits the parties from denying a fact which has been admitted or represented by them.
11. Important Case Laws
11.1 Narhari vs. Pannalal AIR 1976 SC
In this case, the Supreme Court held that a decree passed by a foreign court shall be deemed to be valid and executable if the defendant had voluntarily submitted to its jurisdiction by filing a written statement to the plaint.
11.2 Anoop vs. Jagbir Singh AIR 1990 Del. 305
The court held that where a decree of divorce was passed by a court in England which was competent to entertain the proceedings under the law of England and which had taken the cor-rect view of international law, had provided opportunity to the wife to record defence evidence, and passed the judgment on merit was not opposed to the principle of natural justice.
It was held that the decree was conclusive.
11.3 Jacquieline Kapoor vs. Surender Pal Kapoor AIR 1994 P & H 309
In this case, where the child’s mother, a foreign national, was granted child custody by a foreign court and none of the exceptions detracting from the binding nature of the foreign judgments had either been pleaded or sought to be proved, it was held the foreign judgment given by the family court of the foreign country were binding on the respondent husband.
11.4 Shilpa Sachdev vs. Anand Sachdev 2017 Bombay HC
It is well settled law that a decree of foreign court in respect of matrimonial proceedings is con-clusive in India only when it is passed by a court of competent jurisdiction and it is in accord-ance with the law that governs the matrimonial matters between the parties.
Conclusion
Foreign judgments are recognised under the Code of Civil Procedure, 1908, subject to the con-ditions provided under Sections 13 and 14.
A foreign judgment is conclusive between the parties when it satisfies the requirements of Sec-tion 13 and does not fall within any of the exceptions mentioned therein.
The provisions relating to foreign judgments uphold the principles of private international law, res judicata and the recognition of judgments delivered by competent foreign courts.