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Enforceability Of Foreign Judgement

A foreign Court is defined as a court situated outside India and not established or continued by the authority of the Central Government. A Foreign Judgment means a judgment of a foreign court. Sections 13 and 14 enact a rule of res judicata in case of foreign judgments.

Nature And Scope Of Section 13 (Civil Procedure Code)

A foreign judgment may operate as res judicata except in the six cases specified in 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 the procedure. The fact that the foreign judgment may fail to show that every separate issue, such as the status of the contracting

parties, or the measure of damages, was separately framed and decided, is irrelevant unless it can be shown that failure brings the case within the purview of one of the exceptions to Section 1.

Object Of Sections 13 And 14

The judgment 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 disputes involving a foreign element and to effectuate judgments 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 consideration 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."

Jurisdiction To Foreign Courts

The following circumstances would give jurisdiction to foreign courts:
  1. Where the person is a subject of the foreign country in which the judgment has been obtained;
  2. Where he was a resident in a foreign country when the action was commenced and the summons was served on him;
  3. Where the person in the character of the plaintiff selects the foreign court as the forum for taking action in which forum he issued later;
  4. Where the party on summons voluntarily appeared; and
  5. Where by an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained.

Binding Nature Of Foreign Judgements:

The Code of Civil Procedure provides that 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 to litigate under the same title except:
  1. Where it has not been pronounced by a court of competent jurisdiction;
  2. Where it has not been given on the merits of the case;
  3. Where it appears on the face of the proceeding 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;
  4. Where the proceeding in which the judgment was obtained or opposed to natural justice;
  5. Where it has been obtained by fraud;
  6. Where it sustains a claim founded on a breach of any law in force in India

Foreign Judgments 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 can not be impeached for any error either (1) Of fact, or (2) Of law"

In the following six cases, a foreign judgment shall not be conclusive:
  • A foreign court not a competent court
  • Foreign judgment not on merits;
  • Foreign judgment against international or Indian law;
  • Foreign judgment opposed to natural justice;
  • Foreign judgment obtained by fraud;
  • Foreign judgment founded on a breach of Indian law.

Foreign judgment not by a competent court
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.

Foreign Judgement Not On Merits

In order to operate as res judicata, a foreign judgment must have been given on the 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 the default of the defendant in furnishing security, or after refusing leave to defend, such judgments are not on merits.

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 a suit was instituted in England on the basis of a contract made in India, the English court erroneously applied English law and 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).

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".

Ramanathan Chettyar and Another v Kalimuthu Pillay and Another elucidates the following circumstances in which the foreign court is said to have competent

  • where the defendant is a subject of the country in which the judgment was passed
  • where the defendant is a resident of the country in which the action was commenced;
  • where the defendant has in a previous case filed a suit in the same forum;
  • where the defendant has voluntarily appeared; or
  • where the defendant has contracted to submit itself to the jurisdiction of the foreign court.

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.

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