This article is written by Pranav Sethi, from SVKM NMIMS School of law, Navi Mumbai. This article analyzes the enforcement of foreign judgments by referring to various case laws.
One cool judgment is worth a thousand hasty counsels.
The thing to do is to supply light and not heat.
This article aims to analyze the mandatory enforcement of judgments by foreign courts in India. The scope and implementation talk about foreign countries’ enforcement of laws and the way they have been applied in Indian courts and the objective of Section 13 of the Civil Procedure Code. Also, the project describes the conditions under which the judgments given by any foreign court create the principle of estoppel or res judicata.
What is foreign Judgement?
The term foreign judgments defined under Section 2 (6) of the code of civil procedure means the judgment of a foreign court, and Section-13 of the code provides the criteria with the code for recognition of a foreign judgment and is a pre-condition to any enforcement proceedings unless a foreign judgment passes the conclusiveness test under Section 13 of the Code of Civil Procedure Code, it cannot be enforced.
What is a Foreign court?
“Foreign court” defined under Section 2 (5) means court outside India and not established or continued by the authority of the central government. Criminal procedure code sections that deal with foreign judgment are Sections 13, Section 14, and Section 44. Section 13 embodies the principles of private international law that a Court will not enforce a foreign judgment if the judgment is not that of a competent court. The rules laid down under Section 13 are substantive law, as well, along with being that of procedural law.
Legal and judicial framework
Which legislative and regulatory provisions govern the recognition and enforcement of foreign judgments in your jurisdiction?
In India, there have been no states with various administrative regimes for the recognition and enforcement of foreign judgments. The Code, which is the main legislation, is uniformly applicable all across the country.
There are three primary sources of law about the enforcement of foreign judgments in India:
- Laws passed by the parliament (i.e. the Code): Section 44A of the Code explains the constitutional principle that the judgment handed down by a Superior Court of the Reciprocating Territory (as previously highlighted Government within Official Gazette) is implemented in India as though it were a ruling enacted by the Indian District Courts. That being said, a judgment emerging from a non-reciprocating territory cannot be immediately mandated in the same way and a fresh case should be issued for its regulation in which such a judgment is of only evidentiary value. Also, it may well be noted that both of the classifications of judgments referred to above are needed to comply with the terms set out in Section 13 of the Code, which offers that a foreign judgment is definitive. However, Section 14 of the Code gives rise to a supposition in pursuit of the authority of the foreign court making the judgment in question.
- Bilateral treaties with the reciprocating countries concerning recognition and enforcement of foreign judgments to which India is a party; and
- Judicial precedents: the landmark case of Moloji Nar Singh Rao v Shankar Saran reads that a foreign judgment not emanating from a superior court of a reciprocating territory cannot be executed in India without the filing of a new suit in which the said judgment has only evidentiary value.
One of the fundamental requirements of recognition is that a foreign judgment must not be inconclusive under the Code. According to Section 13 of the Code, a foreign judgment will be inconclusive if it:
- is pronounced by a court that was not of competent jurisdiction;
- is not given on the merits of the case;
- appears to be founded on an incorrect view of international law or a refusal to recognize Indian law (where applicable);
- violates principles of natural justice;
- is obtained by fraud; or
- sustains a claim founded on a breach of Indian law.
The Code presumes in favor of the competency of the jurisdiction of the foreign court unless proved to the contrary. The landmark judgment of Ramanathan Chettyar and Another v Kalimuthu Pillay and Another elucidates the following circumstances in which the foreign court is said to have competent jurisdiction:
- 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.
Recognition of a foreign judgment also depends upon the conditions of reciprocity, which are the foundation of international treaties governing the recognition and enforcement of foreign judgments in India.
Which bilateral and multilateral instruments on the recognition and enforcement of foreign judgments affect your jurisdiction?
Though India is not a party to the Convention on the Recognition and Compliance of International Judgments in Political and Commercial Matters, India has joined into reciprocal co-operation and mutual benefit agreements including numerous States concerning the enforcement of foreign directives and mandates.
The reciprocating territory is specified in Section 44A of the Code to mean a territory designated as one in the Notification Dated by the central government. The United Kingdom, Aden, Fiji, Singapore, the United Arab Emirates, Malaysia, Trinidad and Tobago, New Zealand, the Cook Islands (including Niue) as well as the Trust Regions of Western Samoa, Hong Kong, Papua, and New Guinea and Bangladesh are presently the nations registered as reciprocating territories.
Besides that, India also signed bilateral agreements with the aforementioned countries, however as reciprocal regions have not yet been informed: Afghanistan, Azerbaijan, Bahrain, Bulgaria, France, Kazakhstan, Mongolia, Turkey, and Ukraine. The implementation of judgments and mandates by the judiciary in such areas follows the same process as non-reciprocating territories, pending notification as reciprocating territories.
Which courts have jurisdiction to hear applications for the recognition and enforcement of foreign judgments?
According to Section 44-A of the Code, the supreme authority for the recognition and enforcement of the foreign judgment is a district court with the authority to look into the matter in conflict or a high court with ordinary original civil jurisdiction mostly on the subject of the debate.
In the specific instance of a judgment of a non-reciprocating territory, a civil lawsuit for even a judicial decision should be brought just before trial authority.
Requirements for enforceability
The foreign judgment should be final and should not fall within the ambit of some of the special cases specified in Section 13 of the Code of Civil Procedure.
Indian law doesn’t stipulate the kinds of judgments that may be implemented. Instead, Section 13 of the Code of Civil Procedure, 1908, excludes those foreign judgments which fall within any of the clauses (a) to (f) of Section 13 as set out below:
If the foreign judgment is not final – A foreign judgment shall be definitive about any issue effectively decided by all this between any party candidates or between party leaders whereby they, and any of them, prove to pursue the case under the same title, other than:
- Where it has not been pronounced by a court of competent jurisdiction;
- Where it has not been given on the merits of the case;
- Where 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 such law is applicable;
- Where the proceedings in which the judgment was obtained are opposed to natural justice;
- Where it has been obtained by fraud; and
- Where it sustains a claim founded on a breach of any law in force in India.
The international judgment should be completely definitive in all its adjudicative parts. The party seeking compliance must ensure that the foreign judgment or decree does not fall under the exceptions referred to above before seeking to impose a foreign judgment or decree. If any of these exceptions are protected by a foreign judgment or order, it will not be considered conclusive and will therefore not be enforceable in India.
Injunctive decisions on charges, authority, divorce decrees, financial judgments, compulsory enforcement actions, and anti-suit enforcement actions have all been accepted by Indian courts as being enforceable. They also held that even ex parte judgments are binding if the complete existing legal processes are implemented, the decision must be based on the merits of the case and the claimant of the judgment was ordered to present a case in the absence of defense by even the accused.
Default decisions, overview or specific procedure orders, statutory decisions, and judgments authorizing compensatory damages and fines or quasi-judicial orders, on the other hand, have been found unenforceable in India.
There is no enforceability of a foreign judgment if it is open to challenge in a foreign jurisdiction. To be deemed enforceable, an international decision must be conclusive. The decision would not be considered definitive and binding for compliance in India if an appeal against it is pending in an international court of appeal.
Recognition and enforcement process
It is not a different mechanism to accept international decisions. Recognition is ipso jure, as in most other jurisdictions, that is, the final adjudication of the parties’ interests. As given in Section 13 of the Code of Civil Practice, an international decision is recognized if it is definitive.
The legal consequences of acknowledgment and compliance are distinct. Recognizing an international verdict may only serve as res judicata and is a condition for compliance. If the international judgment was not given in a reciprocating jurisdiction, it must be applied by a separate judicial mechanism as provided in Section 44A of the Code of Civil Procedure for reciprocating territories, or by filing a civil claim.
Reciprocating territory: The holder of the order should register an application with the appropriate Indian court seeking implementation of an international judgment or decree. It is, therefore, appropriate to request a certified copy of the decree and a certificate from the supreme court of a foreign country specifying the total amount, if any, settled by the decree.
Following the appeal, the implementing courts would issue a summons to the judgment debtor to prove cause why the decree should not be executed. The judgment debtor has the right to appeal to compliance at this point on the basis that the judgment violates any of the provisions set out in Section 13 of the Code of Civil Procedure, 1908.
The following are the steps of such an executions case in India launched to execute a decree through Section 44A of the Code of Civil Procedure:
- Application for compliance: The holder of the decree shall file with the appropriate court an appeal for enforcement of the decree.
- Notice to show cause: The court would then send a notice to the person against whom the execution is requested, asking him to show cause for the failure to enforce the order.
- No contest: If the individual against whom the decree is now to be imposed does not demonstrate or show reason how the decree should not be enforced, the court will accept and impose the international decree as if it were a judgment of the Indian court and will authorize the holder of the decree to enforce the judgment against the debtor’s estate.
- The holder of the decree may ask the court to provide the judgment debtor with orders, instructing it to report any assets and liabilities. The court shall comply with both the attachment and selling of those properties when these assets are revealed.
Non-reciprocating territory: The holder of the judgment must bring an application for an international judgment or order. The suit will only be enforced as a domestic decree under Order 21 of the Code of Civil Procedure after it has been authorized and proclaimed.
Enforcing foreign judgment
Can the foreign judgment be enforced against third parties?
No, mostly against the entity for which it has been made can an international decision or decree be applied. In particular, an international judgment is enforceable only against parties to whom it is directed or against any of the groups alluded to during the judgment to which, aside from the parties involved in the conflict, it can be imposed.
Y. Narasimha v. Venkata Lakshmi
This is the popular judgment in which the Supreme Court ruled that a divorce granted by a foreign court was void in India unless it was granted in compliance with Indian divorce laws and not fraudulently.
In this case, the appellant (Narasimha) married the respondent (Venkata) in Tirupati, India, in 1975, in compliance with Hindu law. The couple last settled in New Orleans together and then the appellant moved to the USA. Later, in 1978, the appellant filed a petition for the dissolution of marriage in Missouri, USA, and secured an irreversible breakup of marriage decree by legally meeting the condition of 90 days of residency in Missouri, USA. The wife had made it known that she would not consent to the Missouri Court’s jurisdiction. Respondent lodged a criminal lawsuit against the appellant for bigamy after he married other couples.
In light of the international court’s decree for the termination of marriage, the learned Magistrate discharged the appellant. However, in the appeal, the High Court changed the order on the basis that the Photostat copy of the declaration was not permissible for proof and, accordingly, the petitioner lodged a request for dismissal well before Hon’ble Supreme Court against both the order of the High Court.
The international court’s jurisdiction, as well as the grounds on which relief is given, must be consistent with the matrimonial rule that regulates the parties’ union. However, in a situation where the husband applied for divorce in a foreign country, the Court made the following exceptions:
- The wife must be domiciled and resident of that foreign land and the foreign court should decide the case based on the Hindu Law;
- The wife voluntarily attends and contests the claims in the court proceedings as per Hindu Law;
- The wife consents to grant the divorce.
Thus, on the grounds of the aforementioned provisions, the Hon’ble Court rejected the application upon this basis that the authority of the forum, and also the condition upon which divorce decree was given, is not in conformity with the Hindu law under which applicants were married and also that the appellant had not applied to the court’s jurisdiction or acceded to its enactment.
Gurdayal Singh v. Rajah of Faridkot
A fact that judgment passed by a court which lacks jurisdiction is null and void is a fundamental rule. The jurisdiction must be both related to the which has constituted it as well as must relate to the subject matter upon which it is pleaded as res judicata.
In the historic case of Gurdayal Singh v. Rajah of Faridkot, A filed a suit in the Native State of Faridkot against B, charging that B misappropriated Rs. 60,000 while in A’s operation at Faridkot. In the case of B, an ex parte order was issued. B, on the other hand, was neither a native nor residing in Faridkot. Therefore, the court of Faridkot lacks the authority to prosecute the suit. Only because the money laundering occurred in Faridkot, was not enough to grant the court of Faridkot jurisdiction. Thus, regarding the immovable property in a foreign territory, a foreign court loses power to issue a decree.
Aruna Ramchandra Shanbaug v. Union of India
The famous case of Aruna Shanbaug v. Union of India, decided by the Supreme Court of India, epitomizes all this argument. The Supreme Court of India responded to the plea for euthanasia filed by Aruna Shaunbag, a colleague of a reporter Pinki Virani, by trying to set up the medical panel to better understand her. On 7 March 2011, the court rejected the plea for mercy killing. Even then, it permitted passive euthanasia in India in its landmark case. As the Court did initially, it depended mostly on judgments of foreign courts, since there was no law on the matter in India.
The Court said, “There is still a wide range of case statutory provisions of active and passive euthanasia by courts all around the world. It isn’t appropriate to return in-depth to all of the judicial decisions in the world mostly on the topic of euthanasia or physician-assisted death, and yet we consider it appropriate to relate in-depth to these landmark decisions that have placed down the rules on the subject.”
They after which discussed in the case decided by the House of Lords, popularly called THE AIREDALE CASE: (Airedale Paddy Trust v. Bland), in which it was held that, in the case of critically ill patients, if doctors act by informed medical opinion as well as withdraw the artificial life support system unless it is in the best interests of the patient, any such legislation cannot be considered as a crime. Nevertheless, in the present case, the Jury did not clarify a variety of issues, such as, for example, the issue of who would offer the consent.
There is almost no issue having to rely on foreign court decisions. Even so, judges must be careful not to give greater credit to case law decided in completely different social and economic scenarios. In this age of globalization of legislative requirements, there is no justification to restrain judicial dialogue among different legal systems based on similar rules and ideals. But, without a reason to suspect, neither of these judgments are enforceable upon the Supreme Court of India, although they are institutions of high compelling valuation to which the Judges may justifiably turn for guidance. People must, however, be judged in the sense of India’s standards and regulatory procedures and the practicalities of lawsuits in India.
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