Introduction

The emerging legal issues on "jurisdiction" as regards transactions over the internet can hardly
ignore the legal aspects involved in the execution/enforcement of foreign decrees. Even after
exercise of jurisdiction, the Courts may be unable to help the plaintiff in getting relief in case the
local laws of the country concerned have certain restrictions for the execution/enforcement of
foreign judgements or decrees in the country.

Under Indian Law, execution of decrees, whether foreign or domestic, is governed by the
provisions of the Code of Civil Procedure, 1908 (CPC) (as amended from time to time).1

Under the Indian law there are two ways of getting a foreign judgement enforced. Firstly by
filing an Execution Petition under Section 44A of the CPC in case it falls in the criteria specified
therein. Secondly by filing a fresh suit upon the foreign judgement/decree in the local
jurisdiction.

Under S. 44A2 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. Therefore in case the decree does not

1
Only enforcement of foreign decrees has been discussed in the project report

2
S. 44A. Execution of decrees passed by Courts in reciprocating territory- (1) Where a certified copy of 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 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 2-Decree with reference to a superior court means any decree or judgment of such Court under which
a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect
of a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a
decree or judgment].
pertain to a reciprocating territory or a Superior Court of a reciprocating territory3, as notified by
the Central Government in the Official Gazette, the decree is not directly executable in India. In
that case the decree a fresh suit will have to be filed in India on the basis of such a decree or
judgement, 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 .4

However in both the cases as mentioned above, the foreign decree has to pass the test of S. 13
CPC which specifies certain exceptions under which a foreign judgement becomes inconclusive
and is rendered in-executable or unenforceable in India.

Under S. 13 of the Code of Civil Procedure, 1908 a foreign judgment becomes inconclusive and
consequently unenforceable in the following circumstances:

a. where it has not been pronounced by a Court of competent jurisdiction;

b. where it has not been given on the merits of the case;
c. where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognise the law of India in cases in which such law is
applicable;
d. where the proceedings in which 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.

In the present project report, various decisions of the Supreme Court, High Courts and other
Courts of India have been discussed to give a comprehensive view point on the law of execution
of foreign decrees in India. Since S. 13 of CPC is the basic law for the execution of foreign
decrees in India, each of the aforesaid exceptions, under S. 13 have been dealt with separately

3
Which can be declared from time to time by a notification.
4
S. 14 of CPC stipulates that "Presumption as to foreign judgments.-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." The Orissa High Court in the case of Padmini Mishra v. Ramesh
Chandra Mishra, AIR 1991 Ori. 263 at p. 266, 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. 14 has to be made. However this presumption is rebuttable.
and at the end of each discussion, a broad proposition is derived from the decisions of the Courts
is laid down so that it is easier to remember the law on the point. However, the proposition may
not be exhaustive to cover all circumstances.

1. Not Pronounced By A Court Of Competent Jurisdiction:

This is the first exception mentioned in S. 13 of CPC. In case the foreign court was not of
competent jurisdiction, but still adjudicated the matter, the Indian executing Court may reject the
execution of the foreign decree/judgment.

The following are the cases in which the Courts have held that there is no jurisdiction with the
foreign Court and hence the Judgment or decree is unenforceable.

In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar 5, it was alleged by the
respondent that since he was not a subject of the foreign country, and that he had not submitted
to the jurisdiction of the Foreign Court (Singapore Court), the decree could not be executed in
India. The Appellant, in defense of this argument, stated that the Respondent was a partner of a
firm which was doing business in Singapore and had instituted various suits in the Singapore
Courts. Therefore, the Appellant argued, that the Respondent had accepted the Singapore Courts
jurisdiction. The Court held that it was the firm which had accepted the jurisdiction of the
foreign Court and the Respondent, in an individual capacity, had not accepted the
jurisdiction.6This was one of the reasons for which the High Court held that the decree against
the Respondent was not executable.

In the case of K.N. Guruswami v. Muhammad Khan Sahib 7, 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

5
AIR 1973 Mad. 141.
6
Ibid. at p. 143 para 23.
7
AIR 1933 Mad 112.
country. Therefore it was held that the decree was passed against the defendants without any
jurisdiction.

2. Not Given On The Merits Of The Case:

This exception in S. 13 is basically for the purpose of ensuring that the judgment or decree is
totally conclusive in nature and the plaintiff's claim has been assessed by the foreign Court
before a judgment is rendered upon it.

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

The fountainhead of all decisions under this head has been the decision of the Privy Council in
the case of D.T. Keymer v. P. Viswanatham8. In this case, a suit for money was brought in the
English Courts against the defendant as partner of a certain firm, wherein the latter denied that he
was a partner and also that any money was due. Thereupon the defendant was served with certain
interrogatories to be answered. On his omission to answer them his defence was struck off and
judgment entered for the plaintiff. When the judgment was sought to be enforced in India, the
defendant raised the objection that the judgment had not been rendered on the merits of the case
and hence was not conclusive under the meaning of S. 13(b) of CPC. The matter reached the
Privy Council, where the Court held that since the defendant's defence was struck down and it
was treated as if the defendant had not defended the claim and the claim of the plaintiff was not
investigated into, the decision was not conclusive in the meaning of S. 13(b) and therefore, could
not be enforced in India.

In the case of Gurdas Mann v. Mohinder Singh Brar 9, the Punjab & Harayana High Court
held that an exparte judgment and decree which did not show that the plaintiff had led evidence
to prove his claim before the Court, was not executable under S. 13(b) of the CPC since it was
not passed on the merits of the claim.

8
AIR 1916 PC 121
9
AIR 1993 P&H 92
In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar10 , the Madras High
Court held that if the foreign judgment is not based upon the merits, whatever the procedure
might be in the foreign country in passing judgments, those judgments will not be conclusive.11

3. Where The Judgment Is Passed Disregarding The Indian Law Or The

International Law.

Under this exception the Legislature has tried to protect the precepts of the Indian law.

The case of Anoop Beniwal v. Jagbir Singh Beniwal12 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 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.

10
AIR 1973 Mad. 141. At p. 145 para 31, the Court held that the burden of proof for showing that the
execution/enforceability of the judgment or decree was excepted due to the operation of S. 13 is upon the person
resisting the execution
11
Ibid. at p. 145 para 28
12
AIR 1990 Del. 305 at 311
4. Where The Proceedings In Which Judgment Was Obtained Are Opposed
To Natural Justice

Since compliance to principles of Natural Justice has been universally accepted, this requirement
has been incorporated in S. 13 of CPC. The following are the cases which expound the
stipulation laid down in the section.

In the case of Hari Singh v. Muhammad13 Said 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 minor was opposed to natural 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.

5. Where It Has Been Obtained By Fraud:

The following cases show where judgments are construed to have been obtained by fraud.

In the case of Satya v. Teja Singh14 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 the case of Sankaran v. Lakshmi15 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

13
AIR 1927 Lah. 200
14
AIR 1975 SC 105
15
AIR 1974 SC 1764
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."

In the case of T. Sundaram Pillai v. Kandaswami Pillai16, the plaintiff filed a suit against two
defendants on the basis that the money extended by him towards the marriage of the plaintiffs
daughter to Defendant No. 1 was repayable by the two defendants jointly. The defendants were
set ex-parte. However, defendant No.2 got the exparte order set aside and filed his written
statement in which he took the plea that there was no jurisdiction with the Court. But defendant
No. 2 did not appear, thereafter and was set ex-parte. The decree was passed in favour of the
plaintiff. When the decree came for execution, the defendant No. 2 took the plea that it was
obtained by fraud. The Court held as follows:

"All that can be said on this point is that the case brought by the plaintiff was a false case and
that defendant 1 assisted him in obtaining a decree by withdrawing from any resistance. It does
not seem to me that the words "by fraud" can possibly be applied to circumstances such as these.
It cannot be argued that merely because a plaintiff obtains a decree upon evidence which is
believed by the Court but which in fact is not true, he has obtained that decree by fraud. There
must be fraud connected with the procedure in the suit itself to bring the matter within this
clause. This clause also therefore does not apply to the present case."

6. Where It Sustains A Claim Founded On A Breach Of Any Law In Force In

India

In the case of T. Sundaram Pillai v. Kandaswami Pillai17, (facts already stated above), the plea
of the defendant was that the judgment was obtained in breach of the Contract Act since the
defendants at the relevant time were minors when the contract was entered into and since under
the Contract Act they were not competent to enter into a contract, the claim was founded on the
breach of the Indian Law. The Court held as follows:

16
AIR 1941 Mad. 387
17
AIR 1941 Mad. 387
"This claim is founded partly perhaps upon a breach of the contract Act, but also partly upon a
claim under the Contract Act which in no way involves its breach. Whether that claim is a good
one or a bad one is not for me now to decide. The District Munsif of Trivandrum has given a
decree to the appellant and that decree sustains a claim which was not wholly founded upon a
breach of the Contract Act. It seems to me therefore that the appellant cannot be prevented by
clause (f) of S. 13 from executing his decree in British India."
Conclusion

The procedure for executing a foreign decree in India is an onerous one. Even after getting a
decree from the concerned Court, the Indian Courts may refuse to enforce the same against the
Indian defendant due to the operation of S. 13 of CPC, resulting in a paper decree. Therefore it is
advisable for the plaintiff to file suits in India itself in order to obviate the troubles of getting a
foreign decree executed. In addition to this advantage of executability, a foreign plaintiff, when
he comes to India, has the choice of a variety of other faster forums available. Therefore an
action in India against an Indian Defendant is more feasible than a foreign one.