Code of Civil Procedure-1

PROJECT

ON

FOREIGN JUDGEMENT

Submitted to:

Ms.Neha Sharma

Submitted by:

AKSHAY RATHORE

2014 B.A.LL.B. (Hons), 29

CONTENTS

ACKNOWLEDGEMENT .......................................................................................................................... 3

INTRODUCTION....................................................................................................................................... 4

RESEARCH METHODOLOGY .............................................................................................................. 5

Section 13 Code of Civil Procedure 1908 .................................................................................................. 5

Distinction from Res Judicata ................................................................................................................... 6

FOREIGN JUDGEMENTS WHEN NOT BINDING: CIRCUMSTANCES: SECTION 13 ............... 7

FOREIGN JUDGEMENT NOT BY A COMPETENT COURT: ............................................................ 7

FOREIGN JUDGEMENT NOT ON MERITS ......................................................................................... 9

FOREIGN JUDGEMENT AGAINST INTERNATIONAL OR INDIAN LAW ..................................... 9

FOREIGN JUDGEMENT OPPOSED TO NATURAL JUSTICE ......................................................... 10

FOREIGN JUDGEMENT OBTAINED BY FRAUD ............................................................................ 10

FOREIGN JUDGEMENT FOUNDED ON BREACH OF INDIAN LAW ........................................... 12

Section 14 of Code of Civil Procedure 1908 ............................................................................................ 12

SUBMISSION TO JURISDICTION OF A FOREIGN COURT ......................................................... 13

CONCLUSIVENESS OF A FOREIGN JUDGEMENT ....................................................................... 14

Section 44A Code of Civil Procedure 1908 ............................................................................................. 15

Default of Appearance Sub Section 3 ............................................................................................... 17

ENFORCEMENT OF FOREIGN ARBITRAL AWARD .................................................................... 17

CONCLUSION ......................................................................................................................................... 19

BIBLIOGRAPHY ..................................................................................................................................... 21

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ACKNOWLEDGEMENT

I would like to express my sincere thanksto my CPC teacher Ms. Neha Sharmafor her valuable
suggestions & guidance. I would also like to thank my seniors as well as my friends who have
given their timely help, encouragement as well as criticism during the various stages of the
project, without which it would not have been easy to complete my task smoothly.

I am also thankful to my parents for their constant inspiration & moral support.

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INTRODUCTION

The laws of other countries in the course of their business transactions or in their personal
matters also, sometimes govern Indian citizens. For instance, if an Indian holds immoveable
property in a foreign country or has business transactions in another country, to which the laws
of India are not applicable, then he comes to be governed by the law in which his immoveable
property is situated or by those where he transacted his business, if he has submitted to its
jurisdiction. Also, it is now common to insert a clause in many standard form contracts, which
may involve goods or services, that the any dispute arising out of the contract shall be governed
by the law of a certain country, which may be the law of the country of the buyer or seller. Thus,
a case decided by a foreign court may create a right in one party, which may need to be enforced
in India. Similarly, Indian courts may try cases involving foreigners. All such judgments would
be foreign judgments.

The Code of Civil Procedure has made provisions for such cases. Thus, an Indian Court cannot
refuse to entertain a suit founded upon a foreign judgment just because it has not been decided in
India.

A decree in India, either foreign or domestic, has to be enforced under provisions of the Civil
Procedure Code, 1908 (CPC). Section 2(6) of the Code defines a foreign judgment to mean
any judgment of a foreign court.

Section 2(5) defines a foreign court. Two conditions have to be satisfied in order to call a Court a
foreign court within the meaning of this sub-clause, namely,

1. It must be situate outside India.

2. It should not be established or continued by the authority of the Central Government.

CPC sections that deal with foreign judgment/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 judgment if the judgment 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.

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Sections 13 and 14 of the Code of Civil Procedure enact a rule of res judicata in respect of
foreign judgments and are based on a principle of private international law, which states that a
judgment delivered by a foreign court of competent jurisdiction can be enforced by the courts in
India and this will operate as res judicata between the parties in all cases, except those which fall
within the exception clauses mentioned in Section 13. These sections are applicable not only to
cases where the foreign judgment is set up as a defence but also to cases where the plaintiff seeks
to obtain a decree in an Indian court on the foreign judgment.

For an Indian Court to give effect to a foreign judgment many different factors need to be
considered, such as, the nationality of the Court which gave judgment, the dates at which the
proceedings were commenced which culminated in the judgment, the nature of the order made
by the foreign Court.

RESEARCH METHODOLOGY

1. Aims and Objectives: This Project aims at describing and analysing Section 13 and
14 of the Code of Civil Procedure. It also examines the various defences available to a
suit on a foreign judgment, which is filed under Section 13 of the Code.
2. Research Questions:
1. What are the bases on which the provision in Section 13 is founded?
2. What is the general rule mentioned in Section 13?
3. What is the interpretation given to each of the exceptions to Section 13 by the Courts
in India?

Section 13 Code of Civil Procedure 1908

PROVISION-

13. When foreign judgment not conclusive a foreign judgment 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

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(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 recognize 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.

EXPLANATION-

Section 13 lays down the basic rules, which should not be violated by any foreign court in
passing a decree/judgment. Every foreign judgment/ decree has to pass these tests laid down
under Section 13 of the CPC. In deciding whether the same is conclusive, courts in India will not
consider whether are supported by evidence or are otherwise correct, because its binding
character may be displaced only by establishing whether the case calls within one or more of the
six clauses in Sec. 13. Ifthe judgment falls within one or more clauses of section 13, it will cease
to have a conclusive value as to any matter thereby adjudicated upon and will be open to attacks
from the opposing party on the grounds mentioned in Section 13.

A foreign judgment acts conclusive as to any matter it is directly adjudicated upon, excluding the
reasons for judgment. Section 13 enacts a branch of the rule of res judicata in its relation to
foreign judgments. The expression matter does mean subject-matter; but the rights claimed
by the parties.

Distinction from Res Judicata

Conclusiveness rule of foreign judgment is slightly different in its operation from the rule of res
judicata. Res judicata is applicable to all matters in contention in a previous suit and included

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matters which might and ought to have been ground of attack or defense in the former suit. The
rule of conclusiveness of foreign judgment applies only to matters directly adjudicated upon.
Evidently, therefore, every issue finally heard and decided in a foreign court is not conclusive
between the parties. What is conclusive is the judgment.

FOREIGN JUDGEMENTS WHEN NOT BINDING: CIRCUMSTANCES:

SECTION 13

Under Sec. 13 of the Code, a foreign judgment is conclusive and will operate as res judicata
between the parties there to accept in the cases mentioned therein. In other words, 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 collateral
attack.

Dicey rightly states: A foreign judgment is conclusive as to any matter thereby adjudicated
upon and cannot be impeached for any error either 1. Of fact OR 2. Of law.

In the following cases foreign judgement shall not be conclusive:

1. Foreign judgement not by a competent court.

2. Foreign judgement not on merits.
3. Foreign judgement against international or Indian law.
4. Foreign judgement opposed to natural justice.
5. Foreign judgement obtained by fraud.
6. Foreign judgement founded on breach of Indian law.

EXPLAINED HEREIN,

FOREIGN JUDGEMENT 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

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parties must be a judgment pronounced by a court of competent jurisdiction. Such judgment
must be by a court competent both by the law of state, which has constituted it and in an
international sense and it must have directly adjudicated upon the "matter" which is pleaded as
res judicata. But what is conclusive is the judgment, i.e. the final adjudication and not the reasons
for the judgment given by a foreign court. Thus if A sues B in a foreign court, and if the suit is
dismissed, the decision will operate as a bar to a fresh suit by A in India on the same cause of
action. On the other hand, if a decree is passed in favor of A by a foreign court against B and he
sues B on the judgment in India, B will be precluded from putting in issue the same matters that
were directly and substantially in issue in the suit and adjudicated upon by the foreign court.

The leading case on the point is Gurdayal Sigh v. Rajah of Faridkot1.

In that 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 judgment 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.

Similarly, a court has no jurisdiction to pass a decree in respect of immovable property situated
in a foreign State.

1
(1895) ILR 22 Cal 222

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FOREIGN JUDGEMENT NOT ON MERITS

In order to operate as res judicata, a foreign judgment must have been given on merits of the
case. A judgment is said to have been given on merits when, after taking evidence and after
applying his mind regarding the truth or falsity of the plaintiff's 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 judgments are not on merits.

However, the mere fact of a decree being ex parte will not necessarily justify a finding that it was
not on merits. The real 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, notwithstanding the fact that the evidence was led by him in the absence of the defendant.

FOREIGN JUDGEMENT AGAINST INTERNATIONAL OR INDIAN 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 pf the law. Hence, it is not
conclusive of the matter adjudicated therein and, therefore, unenforceable in this country."

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FOREIGN JUDGEMENT 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 not properly represented in the proceedings or where the judge was
biased is contrary to natural justice and, therefore, does not operate as res judicata.

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.

FOREIGN JUDGEMENT OBTAINED BY FRAUD

It is a well-established principle of Private International Law that if a foreign judgment is

obtained by fraud, it will not act as res judicata. 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,

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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.

In the leading case of Satya v. Teja Singh2, where a husband obtained a decree of divorce
against his wife from an American Court averring that he was domiciled in America. Observing
that the husband was not a bonafide resident or domicile of America, and he had played fraud on
a foreign court falsely representing to it incorrect jurisdictional fact, the Supreme Court held that
the decree was without jurisdiction and a nullity.

Again, in Narsimha Rao v. VenkataKakshmi3, 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 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 Chengalvaraya Naidu v. Jagannath4, the Supreme Court stated: " It is the settled
proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity
and non est in the eyes of the law. Such a judgment/decree by the first court or by the highest
court has to be treated as a nullity by every court, whether superior or inferior. It can be
challenged in any court even in collateral proceedings."

The fraud may be either fraud on the part of the party invalidating a foreign judgment in whose
favor the judgment is given or fraud on the court pronouncing the judgment. Such fraud,

2
1975 AIR 105, 1975 SCR (2) 97.
3
1991 SCR (2) 821, 1991 SCC (3) 451
4
1994 AIR 853, 1994 SCC (1) 1

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however, should not be merely constructive, but must be actual fraud consisting of
representations designed and intended to mislead; a mere concealment of fact is not sufficient to
avoid a foreign judgment.

FOREIGN JUDGEMENT 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. 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.

Section 14 of Code of Civil Procedure 1908

PROVISION-

14. Presumptions as to foreign judgements: 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; but
such presumption may be displaced by proving want of jurisdiction.

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.

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Thus, in Narsimha Rao v. Venkata Lakshmi5, the Supreme Court held that mere production of
a Photostat copy 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.

SUBMISSION TO JURISDICTION OF A FOREIGN COURT

Submission means a voluntary acceptance of the authority of the Court to pass judgment which
authority the court would not otherwise possess. The submission may be express or implied. The
intention of the parties is important here.6 As to what constitutes submission, is a question to be
decided from the facts and circumstances of the case. If a non-resident foreigner appears in a
foreign court and pleads that the Court has no jurisdiction and also pleads as to the merits of the
case, he can be said to submit to the Court voluntarily.7So also, when a party objecting to the
jurisdiction of the Court subsequently, has by his own conduct, submitted to such jurisdiction,
i.e., he has precluded himself from objecting thereto by:

1. Appearing voluntarily as plaintiff in an action.

2. Voluntarily appearing as defendant in such action.
3. Having expressly or impliedly contracted to submit to the jurisdiction of such Court.8

In SheoTahal Ram v. BinaekShukul. 9the decree holder brought a suit against the defendants in
the Benares State. The defendant, though served with summons of the suit did not appear in
Court and the decree was passed on merits. The decree holder executed the decree several times
in British India. On an application of the decree holder, the execution was transferred to the
Native State of Mirzapur, for a second time. There the defendant took the defence that the decree
passed by the Benares Court was a nullity as he was neither a resident of that State nor did he
submit to its jurisdiction. On the first execution petition in Mirzapur, the defendant had deposited
Rs. 100 in part payment of the decree and asked for three moths time for payment of the balance
amount. It was held that the mere fact that he allowed the suit to be heard ex parte and decreed

5
1991 SCR (2) 821, 1991 SCC (3) 451
6
Indian and General Investments Trust Limited v. Sri RamachandraMardarajaDeo, AIR 1952 SC 508.
7
Supra. note 5 at 516.
8
Rangekar, J quoting from DiceysConflict of Laws, 5thedn., p. 398, cited from, MallappaYellappaBennurv.
RaghavendraShamrao Deshpande, AIR 1938 Bom 173 at 176.
9
AIR 1931 All 689

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against him would not amount to his submitting to the jurisdiction of the Benares Court, neither
does his subsequent conduct in depositing money in the Mirzapur Court constitute submission to
the Benares Court.10The Court also said that if a decree when passed was a nullity for want of
jurisprudence in the Court that passed it, no subsequent conduct of the defendant can make it
otherwise.11

It has been held12 that the act of the defendant and his brother (both Indians), who were in
partnership in Ceylon, in executing a General power of Attorney in favour of an agent of the
partnership firm, empowering him to appear in Courts in Ceylon to sue or to defend the firm,
constitutes submission to the jurisdiction of the Ceylon Courts. Hence, if a power of attorney has
been executed, which empowers a person to conduct litigation in a foreign country, it constitutes
submission to the jurisdiction of the Court of the foreign country, despite absence of specific
instructions to defend the particular case on merits.13

The Madras High Court14has held that the action of the defendant in filing a written statement in
the foreign court amounts to submission to the jurisdiction of the Court as he is asking the Court
to decide on a matter in controversy between him and the plaintiff. Even without any contest on
other points, mere submission of the issue of jurisdiction to the decision of the Court amounts to
acceptance of its jurisdiction.

CONCLUSIVENESS OF A FOREIGN JUDGEMENT

Section 13 makes a foreign judgment conclusive between the parties as any matter directly
adjudicated upon therein, provided that it does not fall within the exclusionary clauses mentioned
in clauses (a) to (f). What is conclusive under Section 13 is the judgment, i.e., the final
adjudication and not the reasons thereto. The expression matter in Section 13 is not equivalent
to subject matter: it means a right claimed. Section 13 enacts a branch of the rule of res judicata
in its relation to foreign judgments. Both the rules are founded upon the principle of sanctity of
judgments validly rendered. But the rule of res judicata in Section 11 is wider than that laid

10
Ibid.,at 692, per Sulaiman, C.J.
11
Ibid.,at 694, per Niamatullah, J.
12
In Janoo Hassan Saitv. S.N.Mahamad, AIR 1925 Mad 155 at 156.
13
Ephrayim H. Ephryaimv. Turner and Morrison and Company, AIR 1930 Bom 511 at 515.
14
T.Sundaram Pillai v. Kandaswami Pillai, AIR 1941 Mad 387 at 388

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down in Section 13. The former applies to all matters in issue in a former suit which have been
heard and finally decided between the parties and includes matters, which might and ought to
have been the ground of defence in the former suit.

But the rule of conclusiveness of a foreign judgment applies only to matters directly adjudicated
upon.The word conclusive has been explained by Diceys Conflict of Laws, (7thedn., p. 993)
means unimpeachability. In the matter of conclusiveness of a foreign judgment, there is a
difference between a judgment in rem and a judgment in personam. The former will not attract
extra territorial recognition unless it has been given by a Court internationally competent in this
respect. Such Court must have jurisdiction to bind all persons generally. In Indian Law, Section
41 of the Indian Evidence Act incorporates the law on judgment in rem and provides that, to the
extent material, that a. final judgment of a competent court in the exercise of matrimonial,
probate, insolvency or admiralty jurisdiction is conclusive proof that the legal character which it
confers or takes away accrued or ceased at the time declared in the judgment for that purpose.
But the judgment has to be of a competent Court, that is, a court having jurisdiction over
the parties and the subject matter. Even a judgment in rem is therefore open to attack on the
ground that the court which gave it had no jurisdiction to do so.

Section 44A Code of Civil Procedure 1908

44A. Requirement of reciprocation: When it comes to the enforcement of a foreign Judgment, it

can be either enforced under Section 44 of CPC or by filing a suit upon the foreign
judgment/decree. Section 44 is an independent section, not controlled by any other section or
read with any other section. The country whose foreign judgment can be enforced depends upon
the fact that if it has any reciprocating status in law. A country, which has a reciprocating status,
its judgment/decree, can be executed directly by an Indian court. A judgment/decree by a non-
reciprocating country is not directly enforceable under the Indian courts. A suit has to be filed
pertaining to the issue at hand, where the judgments/decree by a non-reciprocating country will
be treated of evidentiary value.

Reciprocity applies to the law existing in the country of origin. If the judgment is barred by
virtue of limitation in that country it cannot be enforced here even though a larger period of

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limitation is available. There is no period of limitation for the filing of a certified copy. The right
to apply for execution accrues on and from the date of filing under S. 44 A (I) and the article of
Limitation Act applies.

The Supreme Court held in the case ofMoloji Nar Singh Rao vs Shankar Saran15, that a
foreign judgment which does not arise from the order of a superior court of a reciprocating
territory cannot be executed in India. It ruled that a fresh suit will have to be filed in India on the
basis of the foreign judgement.

Therefore Under S. 44A of the CPC, a decree of any of the Superior Courts of any reciprocating
territory are executable as a decree passed by the domestic Court. In case the decree does not
pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by
the Central Government in the Official Gazette, the decree is not directly executable in India and
a fresh suit will have to be filed in India on the basis of such a decree or judgment, which may be
construed as a cause of action for the said suit. In the fresh suit, the said decree will be treated as
another piece of evidence against the defendant. However in both cases the decree has to pass the
test of S. 13 CPC which specifies certain exceptions under which the foreign judgment becomes
inconclusive and is therefore not executable or enforceable in India.

Sections 13 and 14 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 jurisdiction can be enforced by an Indian court and will operate as res judicata
between the parties thereto except in the cases mentioned in Section 13.

A foreign judgment 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 List of the Reciprocating Territories as per the Provisions of Section 44 A of the Code of
Civil Procedure, 1908, is as under:

1. United Kingdom
2. Singapore

15
AIR 1962 SC 1737

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 3. Bangladesh
4. UAE
5. Malaysia
6. Trinidad & Tobago
7. New Zealand
8. The Cook Islands (including Niue)and The Trust Territories of Western Samoa
9. Hong Kong
10. Papua and New Guinea
11. Fiji
12. Aden.

Default of Appearance Sub Section 3

A foreign Decree passed solely due to default of appearance will not be considered as passed on
merits, under Section 13 (b), hence, its execution can be resisted on the grounds of
inconclusiveness.

ENFORCEMENT OF FOREIGN ARBITRAL AWARD

There has been a magnanimous growth in the number of foreign arbitral cases involving Indian
Parties, where both, the governing law as well as the seat of arbitration is of a foreign country.
Awards arising as a result of settlement of such arbitration disputes are of high importance. For
such awards shall be rendered meaningless if these awards are not enforced without hurdles,
proper enquiry, and review by the courts where enforcement is sought. An arbitration award can
only be enforced when the courts of the country where enforcement is sought make an order.
This principle of enforcement is also reflected by the way the Indian system works. In India,
foreign arbitration awards, in terms of enforcement, were governed by the Foreign Awards
(Recognition and Enforcement) Act 1961 (the Act) which gave effect to the New York
Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958. India had made
two reservations while ratifying the Convention, namely

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 1. a) That it would apply the Convention to the recognition and enforcement of an award
only if it was made in the territory of another reciprocating contracting state; and
2. b) That it would apply the Convention only to differences arising out of legal
relationships which were considered as commercial under Indian law.

Article 1 of the New York Convention and Section 7 of the act are in conformity with each other.
Article 1(i) of the New York Convention states that:

This convention shall apply to the recognition and enforcement of arbitral awards made
in the territory of the state other than the state where the recognition and enforcement of
such awards is sought, and arising out of differences between persons, whether physical
or legal

Section 7 of the Act, which corresponds with the provisions of the New York Convention,
specifies that a foreign award may not be enforced if the party against whom the award is sought
to be enforced proves to the court enforcing the award any of the following:

That the parties to the arbitration agreement were, under the law applicable to
them, under some incapacity, or the arbitration agreement was not valid under the
law to which the parties have subjected it (or, in the absence of any condition
thereon) under the laws of the place of arbitration;
That there was no due compliance with the rules of fair hearing;
The award exceeded the scope of submission to arbitration;
The composition of the arbitral authority or its procedure was not in accordance
with the arbitration agreement of the parties or (failing such agreement) was not
in accordance with the law of the place of arbitration;
The award has not yet become binding on the parties, or has been set aside, or
suspended by a competent authority of the country in which the award was made;
If the court dealing with the award is satisfied that (a) the subject-matter of the
difference is not capable of settlement by arbitration under the law in India; or (b)
the enforcement of the award will be contrary to public policy.

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An arbitration award made outside India is quite different from a foreign judgment, as can be
seen above. Identical with foreign judgments, the Act deals with the question of enforcement of
awards of a foreign reciprocating territory as defined in it. Any person who is interested in
enforcing a foreign award may apply in writing to any court having jurisdiction over the subject
matter of the award. The application will be numbered and registered in the court as a suit
between the applicant, as the plaintiff, and the other, as defendants. The court will direct a notice
to the parties requiring them to show cause why the award should not be filed in the court. The
court, on being satisfied that the foreign award is enforceable under the Act, will pronounce
judgment on it. A decree will follow. No appeal will lie from such a decree except insofar as the
decree is in excess of or not in accordance with the award.

CONCLUSION

Thus a bare reading of section suggests that 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.

Numerous cases have come up before the Courts as regards the interpretation to be given to these
exceptions as well as the general provisions. A large of number of cases are in the pre-
Independence era, as at that time each Princely State was considered as a sovereign Independent
State with respect to the other Princely States as well as with respect to British India. Many
Privy Council cases still hold the field in this area. This is also because the Indian law has
developed along the same lines as the English Law, with many judgments quoting frequently
from the works of English jurists like Cheshire, Dicey, etc.

With the increase in trade between the countries and trade barriers being reduced, the
opportunities for the application of this Section are only going to multiply. More and more suits
will be filed in the Indian courts on foreign judgments. The Courts will also have to thus give

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effect to these judgments on the basis of the comity of nations, but should also be cautious that
such judgments are not against our public policy. For instance, even in matrimonial matters, it is
becoming increasingly frequent that the parties, who are not resident in India, though bound by
Indian laws, might resort to the settlement of disputes in a foreign Court for various reasons. In
such cases, it is not necessary that the judgment given by the foreign Court is going to be in
consonance with the Indian law on these issues. The Indian law on matrimonial issues, being a
complex area of law, the Courts would necessarily have to scrutinize these judgments using the
yardstick of Indian law, though the foreign judgment may be perfectly valid in the country where
it was pronounced.

Thus, the relevance of Section 13 is only going to increase in the years to come and the
judgments might require the Courts at times to balance, on the one hand, the respect needed to be
accorded to the foreign judgment and on the other hand, the public policy and morals of the
country.

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BIBLIOGRAPHY

BOOKS:

C.K TAKWANI- The Code of Civil Procedure

Universal Law Publishing Co.- The Code of Civil Procedure, 1908 (Latest Bare act)

ARTICLES:

Raghuwanshi,R.- Legality of foreign judgements, published

atwww.legalservicesindia.com.
Kumar,H. - Foreign Judgments in the context of Indian Law and Enforcement of
Arbitral Awards, published at www.lawoctopus.com on January 15th 2015.
Joseph,M. - Enforcement of Foreign Decrees / Judgement in India, published at
www.legalindia.com on November 11th 2014.

WEB SOURCES:

Manupatra
India Kanoon
www.legalservicesindia.com
www.lawoctopus.com
www.legalsutra.com
www.legalindia.com
www.lawteacher.com
www.vakilno1.com

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