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civil_laws:foreign_judgment

Foreign Judgment

(A judgment of a Foreign Court)

Meaning: S.2(6) defines the foreign judgment as the “judgment of a foreign Court”. The term foreign Court has been defined in s. 2(5) as a Court situate outside India and not established or continued by the authority of the Central Government. The examples of the foreign Courts are the Courts in England, Pakistan, Ceylon etc.

Object: 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. Section 13 embodies the principle of res-judicata in foreign judgments. This provision embodies the principle of private International Law that a judgment delivered by a foreign Court of competent jurisdiction can be enforced in India.

Example: A sues B in a foreign Court. The suit is dismissed. The judgment will operate as a bar to a fresh suit by A against B in India on the same cause of action.

Conclusive Nature: Section 13 of the Code 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 litigating under the same title except as specified in clauses (a) to (f) of Sec. 13.

When Foreign Judgment Not Binding: According to Section 13 under the following six cases, a foreign judgment shall not be conclusive -

  1. Foreign Judgment not by a Competent Court;
  2. Foreign Judgment not on merits;
  3. Foreign Judgment against International or Indian Law;
  4. Foreign Judgment opposed to Natural Justice; Foreign Judgment obtained by fraud;
  5. Foreign Judgment founded on a breach of Indian Law;

Foreign Judgment Not by Competent Court: A foreign judgment must be pronounced by a Court of competent jurisdiction and must be by a Court competent both by the law of the State which has constituted it and in an International sense and it must have directly adjudicated upon the ‘matter’ which pleaded as res- judicata. Only the judgment and not the reasons for the judgment is conclusive.

Foreign Judgment Not on Merits: A judgment is said to be given on merits when, after taking evidence and application of mind, the Judges decide the case one-way or the other. The dismissal of suit for default of appearance or non-production of the document by the plaintiff or passing of decree due to default of defendant in furnishing security are not on merits and can not be conclusive.

Foreign Judgment Against International or Indian Law: The mistake of International or Indian Law must be apparent on the face of the proceedings.

In Narsimha Rao V. Venkata Lakshmi (1991) 3 SCC, the Court held that “when a foreign judgment is founded on a jurisdiction or on a ground not recognized by International or Indian Law, it is a judgment which is in defiance of the law. Hence, it is not conclusive of the matter adjudicated therein and, therefore, not enforceable in this country.

Foreign Judgment Opposed to Natural Justice: The judgment pronounced by a Foreign Court must e after the observation of the judicial process, i.e., the Court rendering the Judgment must observe the minimum requirements of Natural Justice. The judgment to be conclusive 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 to afford each party adequate opportunity of presenting his case.

Foreign Judgment Obtained by Fraud: It is the fundamental Principle of Private international Law that a Foreign Judgment is obtained by fraud, it will not operate as res-judicata. It is the settled preposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eye of law. Such a judgment/decree by the first Court or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings 1).

Foreign Judgment Founded On Breach of Indian Law: It is implicit that the foreign law and foreign judgment would not offend against our public policy. 2) Thus, a foreign judgment .for a gambling debt or on a claim which is barred under the Law of Limitation in India is not conclusive.

Presumption as to Foreign Judgments: Section 14 provides that “the Court shall presume, upon the reduction of any document purporting to be certified copy of the foreign judgment, that such judgment pronounced by a Court of Competent jurisdiction unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.”

Enforcement of Foreign Judgments: A conclusive judgment U/s 13 can be enforced in India in the

following two ways:-

  1. By Instituting a suit on such Foreign Judgment: A foreign judgment may be enforced by institution of a suit within a period of 3 years 3) from the date of the foreign judgment. The Apex Court has held in Roshan Lal V Mohan Singh AIR 1975 SC that any decision of a foreign Court, Tribunal or Quasi-judicial authority is not enforceable in a Country unless such decision is embodied in a decree of a Court of that Country; or
  2. By Institution of Executing Proceedings: A foreign judgment may be enforced by way of execution proceedings as per specified U/s 44-A of the Code and where all the conditions of S. 13 (a) to (f) are satisfied.
1)
Chengalvaraya Naidu V Jagannath, AIR 1994 SC, see also Satya V. Teja Singh AIR 1975 SC, Narsimha Rao V. Venkata Lakshmi (1991) 3 SCC.
2)
Satya V Teja Singh AIR 1975 SC 36.
3)
36. Article 101, Limitation Act, 1963 7.

Created on 2020/10/19 23:13 by • Last modified on 2021/02/07 07:48 by LawPage