The statutory framework for enforcement and execution in India of foreign judgments and decrees pronounced by foreign courts is provided for in the Code of Civil Procedure, 1908 (CPC).
A foreign judgment can be enforced in India by instituting execution proceedings under Section 44A of the CPC if the judgment is delivered by a superior court in a reciprocating territory as notified by the Government of India.
Such foreign judgment will be treated as a decree and executed in India as if it had been passed by a court in India provided the foreign judgment is conclusive.
The Supreme Court in Moloji Nar Singh Rao v Shankar Saran held that a foreign judgment, not arising from the order of a superior court of a reciprocating territory, cannot be automatically executed in India and a fresh suit will have to be filed in India on the basis of the foreign judgment.
It has been held by the Supreme Court of India that Section 44A is an independent provision not subject to any provision of the CPC. Further, it has been held that a foreign decree can be executed by a district court and that such district court need not itself be competent to pass such a decree.
In one of its decisions, the Bombay High Court held that the application must be filed under Order XXI of the CPC within three years of obtaining the judgment from a foreign court.
For enforcement of a judgment delivered in a country that is not notified, a fresh suit in an Indian court of competent jurisdiction must be filed within three years from the date of the judgment. In order to give finality to such a judgment, resulting in execution, it has to be converted into a decree of the court.
However, the process of converting the foreign judgment into a decree of an Indian court could take up to two years and an additional two to three years if there are appeals.
Section 13 of the CPC provides that a foreign judgment would be conclusive and binding if such judgment:
– Was pronounced by a court of competent jurisdiction,
– Was pronounced on the merits of the case,
– Was not obtained by fraud,
– Was not obtained in proceedings opposed to natural justice,
– Was not founded on an incorrect view of international law or a refusal to recognize the law of India in cases where Indian law is applicable, and
– Does not sustain a claim founded on a breach of any law in force in India.
The Allahabad High Court in Ganga Prasad v Ganeshi Lal held that courts may refuse to enforce foreign judgments rendered invalid by Section 13 of the CPC.
For a foreign judgment to be enforceable under Indian law, it is also required that parties to the dispute should voluntarily submit to the jurisdiction of a foreign court.
The Bombay High Court held in Mallapa vs. Raghavendra, that a submission to jurisdiction may be assumed as voluntary under the following circumstances:
– Where the person is a subject of the foreign country in which the judgment has been obtained against him on prior occasions.
– Where he is resident in a foreign country where the action has commenced.
– Where a person selects the foreign court as the forum for taking action in the capacity of a plaintiff, in which forum he is sued later.
– Where the party voluntarily appears on summons issued by the foreign court.
– Where by an agreement a person has contracted to submit himself to the forum in which the judgment is obtained.
Indian Courts also recognize and enforce ex-parte foreign judgments. The Madras High Court in Sivagaminatha v Natraja held that the decree of a foreign court passed ex-parte would be binding provided evidence was taken and the decision was based on consideration of the evidence.
Avoiding enforcement delays
To avoid procedural delays a judgment-creditor must ensure that an application for enforcement of a foreign judgment is filed before a court of competent jurisdiction and all parties necessary for its enforcement in India are made part of the proceedings.
Also the judgment-creditor, before making the application to enforce the judgment should ascertain the assets of the judgment-debtor and any rights of a third party vested in them.
A foreign judgment or a decree pronounced by a foreign court can be executed by a district court in India provided the judgment was made after following due process of law without contravening the six conditions listed in Section 13 of the CPC.
Niranjan Raj is an associate at Titus & Co, Advocates and may be contacted at firstname.lastname@example.org.
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