ENFORCEMENT OF FOREIGN JUDGMENT IN INDIA
Scope, Validity, How Enforced
The judgment delivered by a foreign court is foreign judgment. Section 2(6) of the Civil Procedure Code defines foreign judgment. A foreign judgment is a judgment that is adjudicated by a court not situated in the territory of India.
The judgment of a foreign court is equally enforceable like that of a judgment delivered by Indian courts. The foreign judgment binds the party in the same manner Indian court judgment does.
Scope of Foreign Judgment
When the foreign court passes a judgment, the decree-holder may get it executed either in the same court which passed the judgment, or it can be executed in any Indian court competent to execute it.
Section 13 of the Civil Procedure Code says that the foreign judgment is conclusive except in the cases mentioned below:-
1.If the judgment is not passed by a competent court, then it is not conclusive. If the court, which is deciding the matter in issue, has no
jurisdiction to try the same, then the judgment is a nullity. It will have no enforcement.
The principle of res judicata shall not apply to the parties. The parties may again file the suit because earlier, it was not determined by a competent court.
For example, If the divorce petition is heard and decided by judicial magistrate, then it shall not be conclusive because all the family disputes are heard and decide by principal judge in family court.
2.If the judgment is not given on merits, the judgment shall not be conclusive. Merits mean that the case was tried with procedure. If, in any case, the parties are not given adequate opportunities or any issue is unheard, or the pieces of evidence are not taken properly, or the parties did not get reasonable time to be present in the court then it shall be deemed that the case is not heard on merits. And if the case is not heard on merits, then it shall not be binding to the parties.
3.If the judgment passed is against Indian law or international law, then it shall not be conclusive. If the foreign court passes any judgment which is opposed or against Indian law, then it shall not be acceptable.
For example, If the parties are Hindu and their case is being tried in an Islamic country, then the shariah law shall not be applicable to them. The parties will be governed as per Hindu law only.
4.If the judgment given by a foreign court is opposed to the principle of natural justice, then it shall not be conclusive.
There are two principles of natural justice:
Nemo judex in causa sua – no one shall be judge in his own case.
Audi alteram partem – both the parties must be heard.
If the court, while delivering judgment, ignores these principles, then such judgment shall hold no meaning. If the judge who is giving judgment is biased and not following the procedure prescribed, it shall not be conclusive. It is said that procedures are handmaid of justice. And if the rules of procedures are not followed by the court, nothing can be more harmful than that.
5.If the party obtains the judgment through fraud, then it shall not be conclusive. If the party has hidden any important material facts from the
court, which were necessary to be in the knowledge of court for the proper adjudication of dispute, then the judgment delivered shall not be deemed to be delivered on merits. If the party in whose favour judgment is made, has concealed facts from the court shall have the effect of nullity on judgment.
6.If the judgment delivered has breached any law enforced in India, then it shall not be conclusive. The judgment must not oppose to any Indian policy or law.
For example, If the person does agreement with another person for a profit of gambling money. Such judgment will not be effective in Indian courts because, in India, gambling is not legally allowed.
Validity of Foreign Judgment
Section 14 of the Civil Procedure Code talks about presumption related to foreign judgments. The courts on receiving a certified copy of the foreign judgment shall presume that it is a foreign judgment given by a foreign court.
There shall be no question on its validity and authenticity unless anything, contrary to it, is proved in the court. If anything, contrary to it, is not proved then, it shall hold the same enforceability like that of an Indian judgment.
How Foreign Judgment is Enforceable
The judgment passed by a foreign court can be enforced in India through the following ways:
1.It may be enforced by instituting a suit within the duration of three years from the date when the judgment was pronounced.
2.It may be enforced by normally adopting the execution proceedings in section 44A of the Civil Procedure Code.
3.If the judgment can’t be executed by the court which passed it because of lack of jurisdiction or the court to which the procedures of civil code do not extend, then it may be executed in the manner as if the court had been situated in the place where this code extends.
