The procedure for enforcement and execution of a foreign judgment / decree in
India, is governed by the Code of Civil Procedure 1908 ('CPC').
Section 2(5) of CPC defines foreign Courts as a Court situated outside India and
not established or continued by the authority of Central Government, and Section
2(6) of CPC defines foreign judgment as a judgment passed by a foreign Court.
Section 44A of the CPC was originally introduced in the year 1937 by Act No. 8
of 1937, later amended by Act LXXI of 1952. Section of 44A of the CPC now
provides a decree passed by a superior Court in any reciprocating territory
which may be executed in India by filing a certified copy of the decree in a
district Court, which will treat the decree as if it has been passed by itself.
A foreign judgment is not enforceable unless it is a conclusive one.
The test of
conclusiveness is laid down under Section 13 of the CPC, which states that a
foreign judgment shall be conclusive unless:
- it has not been pronounced by a Court of competent jurisdiction;
- it is has not been given on the merits of the case;
- 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 law is applicable;
- the proceedings in which the judgment was obtained are opposed to
- it has been obtained by fraud;
- it sustains a claim founded on a breach of any law in force in India.
Although India is not a signatory to Hague Convention on the Recognition and
Enforcement of Foreign Judgments in Civil and Commercial Matters, but has
executed bilateral treaties with several countries which are treated as the
reciprocating countries with respect to recognition and enforcement of foreign
judgments in India.
The reciprocating countries with which India currently has bilateral treaties
- The United Kingdom,
- The Federation of Malaya,
- New Zealand,
- The Cook Islands (including Niue) and the Trust Territories of Western
- Trinidad & Tobago,
- Hong Kong (Special Administrative Region),
- Papua and New Guinea and
January 2020, by way of an Extraordinary Gazette Notification, issued by the
Ministry of Law & Justice (Department of Legal Affairs), the Central Government
of India declared the United Arab Emirates as a reciprocating territory.
Section 44A of the CPC as amended from time to time now reads as:
44A. Execution of decrees passed by Courts in reciprocating territory:
- Where a certified copy of a 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.
- 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.
- 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 the
decree falls within any of the exceptions specified in clauses (a) to (f) of
The term "reciprocating territory
" has been defined in Explanation I to Section
44A of the CPC as 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.
Interestingly, Section 13 of the CPC does not make any distinction between
judgments of a Court in a reciprocating territory, to that of the judgments
passed by a Court in a non-reciprocating territory. It is Section 44A of the CPC
which explains the term 'reciprocating territory' and the execution of the
decrees passed by Courts in reciprocating territory.
However, a decree passed,
both by reciprocating territory as well as by the non-reciprocating territory,
must satisfy the tests laid under Section 13 of the CPC for it to get enforced
in India. The question thus arises, how can a decree passed by non-reciprocating
territory be executed.
The answer to which is that a Party cannot just simply
seek for an execution of the foreign decree passed by a non-reciprocating
territory; for the purposes of enforcing such a decree, one is required to file
a suit on that foreign decree, or on the original underlying cause of action, or
On the other hand, a person seeking enforcement of a foreign decree passed by a
reciprocating territory, may simply file an execution application of the same by
following the procedure under Section 44A and under Order XXI of the CPC
(Execution of Decrees and Orders) before an Indian Court. For execution of such
a decree, the Party is also required to file a certified copy of the decree
along with a certificate from such superior Court stating the extent to which
the decree has been satisfied or adjusted. In a recent judgment, the Supreme
Court of India held that the High Courts of India having original civil
jurisdiction were empowered to execute a foreign court's money decree falling
within their pecuniary limits under Section 44A of the Civil Procedure Code,
The term "Decree" is defined in Explanation II to Section 44A of the CPC as a
decree with reference to a superior Court meaning 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.
In the Judgment of Alcon Electronics Pvt. Ltd. v. Celem S.A.
of FOS 34320 Roujan,
France, the issue before the Hon'ble Supreme Court of India was whether the
execution of an interlocutory order of an English Court pertaining to dismissal
of challenge to its jurisdiction, including order for costs and interest
thereon, would be maintainable before Indian Courts?
The Hon'ble Supreme Court
of India held that penalty means a sum payable to the State, and not to a
private claimant, therefore the costs (under Section 35A of the CPC) imposed on
the basis of the indemnity, is neither a penalty nor tax. It was further held
that the Explanation to Section 44A of CPC does not refer to the costs as
contemplation under Section 35 of the CPC.
Accordingly, the costs which have
been quantified are assumed the character of money decree for costs, and thus,
cannot be equated with either fine or penalty imposed on a party by a Court or
taxes claimed/payable to a local authority, Government of other charges of a
One of the major issues faced by a party in executing a foreign decree in India
is the inordinate delay caused during the process of execution of decree before
an Indian Court. The Hon'ble Supreme Court of India in the matter of Rahul S.
Shah v. Jinendra Kumar Gandhi and Ors.
 noted that as on 31st December 2018,
there were 11,80,275 execution petitions pending before the subordinate courts.
The three-judge bench of the Hon'ble Supreme Court of India, comprising of
former Chief Justice of India S.A. Bobde along with Justice L. Nageswara Rao and
Justice S. Ravindra Bhat, issued fourteen mandatory directions to be followed by
all Courts dealing with execution of decrees, in order to expedite the process
of execution of decrees, which are as follow:
- In suits relating to delivery of possession, the court must examine the
parties to the suit under Order X in relation to third party interest and
further exercise the power under Order XI Rule 14 asking parties to disclose
and produce documents, upon oath, which are in possession of the parties
including declaration pertaining to third party interest in such properties.
- In appropriate cases where the possession is not in dispute and not a
question of fact for adjudication before the Court, the Court may appoint
Commissioner to assess the accurate description and status of the property.
- After examination of parties under Order X or production of documents
under Order XI or receipt of commission report, the Court must add all
necessary or proper parties to the suit, so as to avoid multiplicity of
proceedings and also make such joinder of cause of action in the same suit.
- Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to
monitor the status of the property in question as custodia legis for proper adjudication
of the matter.
- The Court must, before passing the decree, pertaining to delivery of
possession of a property ensure that the decree is unambiguous so as to not
only contain clear description of the property but also having regard to the
status of the property.
- In a money suit, the Court must invariably resort to Order XXI Rule 11
of CPC, ensuring immediate execution of decree for payment of money on oral
- In a suit for payment of money, before settlement of issues, the
defendant may be required to disclose his assets on oath, to the extent that
he is being made liable in a suit. The Court may further, at any stage, in
appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security
to ensure satisfaction of any decree.
- The Court exercising jurisdiction under Section 47 or under Order XXI of
CPC, must not issue notice on an application of third-party claiming rights
in a mechanical manner. Further, the Court should refrain from entertaining
any such application(s) that has already been considered by the Court while adjudicating
the suit or which raises any such issue which otherwise could have been raised
and determined during adjudication of suit if due diligence was exercised by the
- The Court should allow taking of evidence during the execution
proceedings only in exceptional and rare cases where the question of fact
could not be decided by resorting to any other expeditious method like
appointment of Commissioner or calling for electronic materials including
photographs or video with affidavits.
- The Court must in appropriate cases where it finds the objection or
resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule
98 of Order XXI of CPC as well as grant compensatory costs in accordance with
Section 35A of CPC.
- Under section 60 of CPC the term "in name of the judgment-debtor or by
another person in trust for him or on his behalf" should be read liberally
to incorporate any other person from whom he may have the ability to derive
share, profit or property.
- The Executing Court must dispose of the Execution Proceedings within six
months from the date of filing, which may be extended only by recording
reasons in writing for such delay.
- The Executing Court may on satisfaction of the fact that it is not
possible to execute the decree without police assistance, direct the
concerned Police Station to provide police assistance to such officials who
are working towards execution of the decree. Further, in case an offence
against the public servant while discharging his duties is brought to the
knowledge of the Court, the same must be dealt stringently in accordance
- The Judicial Academies must prepare manuals and ensure continuous
training through appropriate mediums to 32 the Court personnel / staff
executing the warrants, carrying out attachment and sale and any other
official duties for executing orders issued by the Executing Courts.
The Hon'ble Supreme Court of India further directed the all High Courts of India
to reconsider and update all the Rules relating to the execution of decrees,
made under exercise of its powers under Article 227 of the Constitution of
India and Section 122 of the CPC, within one year from the date of the
Order passed in the matter.
In the judgment passed by Bank of Baroda v. Kotak Mahindra Bank Ltd
passed by the Hon'ble Supreme Court of India, it was held that the limitation
period for execution of a foreign decree passed by a reciprocating country in
India, will be the limitation prescribed in the reciprocating foreign country.
If the Decree Holder first takes step-in-aid to execute the decree in the same
reciprocating country itself, and the decree is not completely satisfied, the
Decree Holder may then file an execution petition in India within a period of 3
years in terms of Article 137 of the Limitation Act 1963, from the finalisation
of the execution proceedings in the reciprocating country.
The Supreme Court of India in the matter of Forasol v. Oil & Natural Gas
Commission held that the date of the foreign judgment or decree, should be
construed as the relevant date for currency conversion to Indian rupees, for the
Conclusiveness of the Foreign Decree
As already stated, a foreign decree must satisfy the test laid under Section 13
of the CPC, in order for it be considered as a conclusive one. In a
situation, an appeal against a Foreign Decree is preferred by a party, which is
pending in the same reciprocating country, it cannot be enforced in India until
it is finally decided by the Appellant Court of that reciprocating territory. In
other words, only the foreign decrees which have attained finality, may be
enforced before the Indian Courts .
With respect to interlocutory Orders, the Hon'ble Supreme Court of India has
stated that "The principles of comity of nation demand us to respect the order
of English court. Even in regard to an interlocutory order, Indian courts have
to give due weight to such order unless it falls under any of the exceptions
under section 13 of the CPC".
Upon a conjoint reading of Section 2(6), 2(9), 2(14) of the CPC along
with the Explanation II to Section 44A of the CPC, it was further held that an
Order passed by a reciprocating territory are also executable.
With the increase in globalization of various sectors, India still needs have
reciprocating ties with many other developed nations. For example, despite
having strong ties with powerful nations such as United States of America as
well as Russia, India does not have any reciprocating arrangements with any of
Although the Supreme Court of India has issued mandatory guidelines to be
followed by all Courts dealing with execution of decrees, in order to expedite
the process of execution of decrees, yet the process of executing a foreign
judgment may be time consuming in India. As it has been rightly stated, that
there is an old saying, the difficulties of the litigant in India begin when he
has obtained a decree.
The content of this Article is intended to provide a general information to the
subject-matter and should not be construed as legal advice in any manner. Please
feel free to contact the author for any additional information/ advice.
Written By: Kunal Kumar, Advocate
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- Government of India - Ministry of Law, Notification No. SRO. 959 dated
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- Government of India - Ministry of Law, Notification No. SRO. 4 dated 03
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- Government of India - Ministry of Law, Notification No. G.S.R. 38(E)
dated 17 January 2020 also available at https://egazette.nic.in/WriteReadData/2020/215535.pdf
- Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering
Ltd. 2014 (2) Bom CR 769, Para 21.
- Messer Griesheim GmbH v. Goyal Mg Gases Pvt. Ltd., Civil Appeal No. 521
- Alcon Electronics Pvt. Ltd. v. Celem S.A. of FOS 34320 Roujan, France,
2017 (2) SCC 253
- Section 35 of the CPC deals with General Costs i.e. costs which may
granted to a party of a Suit by the Court under its own discretion, while
Section 35A deals with Compensatory costs and Section 35B delas towards
costs causing delay.
- 2021 SCC OnLine SC 341, dated 22 April 2018
- Article 227 of the Constitution of India confers on every High Court of
India, the power of superintendence over all courts and tribunals throughout
the territories in relation to which it exercises jurisdiction excepting any
court or tribunal constituted by or under any law relating to the armed
- Under Section 122 of the Code of Civil Procedure 1908, empowers each
High Court to annual, alter or add to all or any of the rule set out in the
- Civil Appeal No. 2175 of 2020 (Arising out of Special Leave Petition
(Civil) No. 8123 of 2015)
- 1984 AIR 241
- either passed by a reciprocating country or non-reciprocating territory
- Subject to the other conditions being satisfied under Section 13 of the
- KB Walker v Gladys P Walker, AIR 1935 Rang 284 (DB), Baijnath v
Vallabhadas AIR 1933 Mad 511.
- Alcon Electronics Pvt. Ltd., Supra
- "Judgment" means the statement given by the Judge of the grounds of a
decree or order.
- "Order" means the formal expression of any decision of a Civil Court
which is not a decree.
- Messer Griesheim GmbH v. Goyal Mg Gases Pvt. Ltd., Civil Appeal No. 521
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