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How is a foreign judgment enforced in India?

January 18, 2019 0 Comment

(b) Its enforcement:

A foreign judgment may be enforced by proceedings in execution in certain specified cases only. They are provided in Section 44 and 44-A. Section 44 relates to execution of decree passed by civil courts in places to which the Code does not extend.

Section 44-A relates to superior courts of the United Kingdom or any reciprocating territory. Only in these two cases a foreign judgment can be enforced by proceeding in execution.

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Reciprocity of treatment between nations is the real basis and the obligation arises from international dealings, otherwise a foreign judgment can only be enforced by a suit upon the judgment. A regular suit has to be brought for the relief which has been granted by the foreign judgment.

(c) Objections to a foreign judgment:

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—

(i) Where it has not been pronounced by a court of competent jurisdiction;

(ii) Where it has not been given on the merits of the case;

(iii) 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;

(iv) Where the proceedings in which the judgment was obtained are opposed to natural justice;

(v) Where it has been obtained by fraud; and

(vi) Where it sustains a claim founded on a breach of any law in force in India. (S. 13).

Conclusiveness of foreign judgment and Court of competent jurisdiction:

A foreign judgment is made by S. 13 conclusive between the parties as to any matter directly adjudicated and it is not predicated of the judgment that it must be delivered before the suit in which it is set up was instituted.

Section 13 incorporates a branch of the principle of res judicata, and extends it within certain limits to judgments of foreign courts if competent in international sense to decide the dispute between the parties.

The rule of res judicata applies to all adjudications in a “former suit” which expression by Explanation 1 to S. 11 denotes a suit which has been decided prior ‘to the suit in question whether or not it was instituted prior thereto. This explanation is merely declaratory of the law.

A judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a Court of competent jurisdiction; and competence contemplated by S. 13 is in an international sense, and not merely by the law of the foreign State in which the Court delivering judgment functions.

Undoubtedly, a Court of a foreign country has jurisdiction to deliver a judgment in rem which may be enforced or recognized in an Indian Court, provided that the subject-matter of the action is property whether movable or immovable within the foreign country.

It is also well settled that a Court of a foreign country has no jurisdiction to deliver a judgment capable of enforcement or recognition in another country in any proceeding the subject-matter of which is title to immovable property outside that country.

But, there is no general rule of private international law that a Court can in no event exercise Jurisdiction in relation to persons, matters or property outside its jurisdiction.

The Courts of a country generally impose a threefold restriction upon the exercise of their jurisdiction:

(1) Jurisdiction in rem (binding not only the parties but the world at large) by a court over res outside the jurisdiction will not be exercised, because it will not be recognized by other courts;

(2) The Court will not deal directly or indirectly with title to immovable property outside the jurisdiction of the State from which it derives its authority: and

(3) The Court will not assist in the enforcement within its jurisdiction of foreign penal or revenue laws.

An action in personam lies normally where the defendant is personally within the jurisdiction or submits to the jurisdiction or though outside the jurisdiction may be reached by an order of the Court.

In an action in personam the court has jurisdiction to make an order for delivery of movables where the parties submit to the jurisdiction. A person who institutes a suit in a foreign court and claims a decree in personam cannot after the judgment is pronounced against him say that the court had no jurisdiction which he invoked and which the court exercised, for it is well recognized that a party who is present within or who had submitted to jurisdiction cannot afterwards question it. (Vishwanath v. Abdul Wahid, A.I.R. 1963 S.C. 1).

(d) Period of limitation:

The period of limitation for filing a suit on a foreign judgment is three years from the date of judgment. (Art. 101 of the Indian Limitation Act, 1963).

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