Judgement of A Foreign Court" and Section 2 (5) of The Code Defines A Foreign Court' To Mean

I.
INTRODUCTION
With the emergence of globalization, and transactions taking place not only within the
country but also between countries, it is indispensible that the jurisdictional issues as to the
disputes between the parties occur during such cross-border transactions. Every party have
their own concern as to their rights and in that process try to ignore the procedure agreed
when they dispute or try to over ride such agreements by seeking the local courts to quash the
foreign judgment. The courts in such a critical situation are unable to do a justification to the
parties because there are certain restrictions as to the enforcement and execution of foreign
judgments.
Under Indian Law, execution of decrees, whether foreign or domestic, is governed by the
provisions of the Code of Civil Procedure, 1908. The CPC provides two ways of getting a
foreign judgment enforced. Firstly by filing an Execution Petition under Section 44A of the
CPC in case the conditions specified therein are fulfilled. Secondly, by filing a suit upon the
foreign judgment under section 13.
The Sections 13 and 14 of CPC enables the 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.
II. PROVISIONS OF CPC WITH RESPECT TO ENFORCEMENT AND

EXECUTION OF FOREIGN JUDGMENTS
Section 2(6) of the Civil Procedure Code 1908, defines ‘foreign judement’ to mean “any
judgement of a foreign Court” and Section 2(5) of the code defines a ‘foreign court’ to mean
a “Court situate outside India and not established or continued by the authority of the
Central Government”. Thus, “a foreign judgement would mean adjudication by a foreign
court upon the matter before it” and not merely a statement of the reasons for the order.”1
A judgement given by a foreign court would not cease to be so if, as a consequence of

political change, the territory where the court was situated at the time of the judgement later
becomes part of India. However, an act of state is not a foreign judgment.2
1 Brijlal V. Govind AIR1947 PC 192
2 SrimanV. Goswami, ILR 17 Bom 620

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.
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].
Therefore in case the decree does not 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 case the decree pertains to a country which is not
a reciprocating territory then 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.
However in both cases the decree has to pass the test of S. 13 CP
3 United Kingdom, Aden, Fiji, Republic of Singapore, Federation of Malaya, Trinidad and Tobago,
New Zealand, the Cook Islands (including Niue) and the Trust Territories of Western Samoa, Hong Kong, Papua
and New Guinea, Bangladesh, United Arab Emirates have been notified by the Government of India as
reciprocating territory.

Judgement of A Foreign Court" and Section 2 (5) of The Code Defines A Foreign Court' To Mean

Uploaded by

Copyright:

Available Formats

Judgement of A Foreign Court" and Section 2 (5) of The Code Defines A Foreign Court' To Mean

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Judgement of A Foreign Court" and Section 2 (5) of The Code Defines A Foreign Court' To Mean

Uploaded by

Copyright:

Available Formats

I.

II. PROVISIONS OF CPC WITH RESPECT TO ENFORCEMENT AND

A judgement given by a foreign court would not cease to be so if, as a consequence of

1 Brijlal V. Govind AIR1947 PC 192

2 SrimanV. Goswami, ILR 17 Bom 620

You might also like

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.