Recognition of foreign judgement

1. PRIVATE INTERNATIONAL LAW
BASIS OF RECOGNITION and
ENFORCEMENT OF FOREIGN
JUDGMENTS
BY:
PRIEYA AHLUWALIA
35417703819
IX-A
BY:
PRIEYAAHLUWALIA
35417703819
IX-A

2. INTRODUCTION……
In this era of globalization, Private International Laws have become a
necessity. The need for Private International Laws arises when there is a
foreign geographical connection with the case, or there is some presence
of the foreign element. This foreign element can be anything ranging from
a contract between two parties of a different nationality to a tort
committed with foreign influence. In such cases, the concept of Private
International Laws is also called ‘Conflict of Laws’.
In such cases, the court undertaking the case has to apply the principles of
private international laws along with the domestic laws. Almost all the
nations have well-codified laws and a system of conflict of laws. For
understanding, let us see this way that the world is divided into different
territorial units, with each unit being governed by its specific laws
considering contracts, sales of goods, torts, etc. A person who belongs to
one such territorial unit may travel to another unit and get engaged in the
contract. When he comes back and an issue regarding contract arises,
then the court with jurisdiction has to apply international private laws
along with domestic laws.

4. Theories on Recognition and Execution/ Enforcement of
Foreign Judgments
• Theory of Comity ( Morguard vs/ De Savoye, (1991, SC of Canada)
• Theory of Obligation / Doctrine of Obligation
• The Theory of Judicial Reasons or ideas of social Value
• The Theory of harmony between Judgments and Conflict of Laws
• Doctrine of Acquired Rights

5. CONTD…
In law, the enforcement of foreign judgments is the recognition and enforcement
rendered in another ("foreign") jurisdiction. Foreign judgments may be recognized
based on bilateral or multilateral treaties or understandings, or unilaterally without
an express international agreement.
The "recognition" of a foreign judgment occurs when the court of one country or
jurisdiction accepts a judicial decision made by the courts of another "foreign"
country or jurisdiction, and issues a judgment in substantially identical terms
without rehearing the substance of the original lawsuit. Recognition will be generally
denied if the judgment is substantively incompatible with basic legal principles in the
recognizing country.
At the beginning it is pertinent to define the meaning of the terms “foreign court and
foreign judgement.”
According to Section 2 of the CPC, 1908:
 "foreign Court" means a Court situate outside India and not established or
continued by the authority of the Central Government;]
 "foreign judgment" means the judgment of a foreign Court;.

7. CODE OF CIVIL PROCEDURE, 1908 talks about recognition of foreign judgements.
It is present in Section 13 and Section 44A therefore it is necessary to analyse these
sections. Apart from this, it is necessary to know that Article 101 of the Limitation
Act, 1963 mentions that a suit on foreign judgement should be filed within 3 years
from the judgement’s date.
Section 13, Code of Civil Procedure
This section deals with foreign judgements and mentions the instances where foreign
judgements will not be conclusive. Foreign judgements shall be conclusive in various
instances with the following exceptions:
The foreign judgement will not be conclusive if the maintainability is questionable
when the judgement is given by a court which does not have competent jurisdiction
over the matter.
The foreign judgement will not be conclusive in case, the decision of the court was
not based on the merits of the case.
If the case was undertaken and the decision was taken based either on the
misinterpretation or incorrect view of international law then also the foreign
judgement will not be conclusive.
If it is found that proceedings did not consider the Indian laws applicable in that
particular case, then the foreign judgement will not be considered conclusive.

8. FOREIGN JUDGMENT WHEN NOT BINDING:
Under Section 13 of the CPC, a foreign judgment shall operate as res
judicata with respect to the parties involved except when one or more
conditions specified in clauses (a) to (f) of S. 13 become applicable.
According to the principle laid down by AV Dicey and referred to in the
case of Viswanathan v Abdul , a judgment passed by a foreign court
cannot be assailed on the basis of either mistake of law or mistake of
fact.
Thus, a foreign judgement shall not be considered as conclusive in the
following 6 cases:
 When the Foreign Judgment has not been issued by a court with
competent jurisdiction,
 When the Foreign Judgment is not based on merits.
 When the Foreign Judgment is against Indian or International Law
 When the Foreign Judgment is opposed to the principles of natural
justice.
 When the Foreign Judgment has been obtained by fraudulent means
 When the Foreign Judgment is in breach of Indian Law.

9. FOREIGN JUDGEMENT

10. Furthermore, what is considered “conclusive” is the judgement and not the ratio
decidendi i.e., the reasoning behind the judgement.
A landmark judgement in this regard is the case of Gurdyal Singh v. Rajah of
Faridkot
In this case a person “A” filed a suit in the court of the native state of Faridkot against
a former employee “B” for misappropriation of a particular sum of money belonging
to “A”. B was a domicile of another native state Jhind. B had travelled to Faridkot in
1869 to work under A but left Fardikot in 1874 and returned to Jhind. The present
suit was brought by A against B in 1879 when B was neither residing in or was a
domicile of Faridkot and B did not appear at the hearing of the suit in Fardikot and
an ex parte decree was passed by the court at Faridkot against B.
When A filed a suit in a court in British occupied Indian territory, the court refused
to enforce the decree passed by the court at Fardikot on the ground that the court at
Fardikot had no jurisdiction to adjudicate the suit. The mere fact that the alleged
embezzlement took place in Faridkot would not grant jurisdiction to the court at
Fardikot. Neither was B residing in nor was he a domicile of Faridkot at the time that
the adverse decree was passed. Thus, taking into consideration the rules of Private
International Law, the court at Faridkot lacked jurisdiction and the decree so passed
would be null and void.

11. CONTD…..
For a foreign judgement to be conclusive it should be made sure that judgement does
not go against the spirit of Natural Justice. In such cases where the judgement goes
against the Spirit of Natural Justice then the judgement will not be considered as
conclusive.
The two other cases, where the judgement will not be considered as conclusive, are
first: if the judgement has been obtained by fraud, and second: if the judgement has
been given breaches any of the present Indian laws.
Presumption as to foreign judgment: Section 14 of CPC,1908 provides;
“The Court shall presume upon the production of any document purporting to be a certified
copy of a foreign judgment, that such judgment was 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.”

13. RECIPROCATING TERRITORY AND ENFORCEMENT OF FOREIGN
JUDGEMENTS
SEC.44A of the CPC states that a “Reciprocating Territory” is any country or
territory outside the Republic of India which the Union Government can via
notification in the Gazette of India declare as being a reciprocating territory.
A certified copy of a judgement passed by a superior court in any reciprocating
territory when filed in a District Court in India shall be executable in India and its
execution will have the same effect as if it was passed by a District Court in India.
In the case of Kevin George Vaz v. Cotton Textiles Exports the phrase
“reciprocating territory” was defined by the court as any nation or territory outside
India that the union government has recognized as a reciprocating territory. The
term “a territory outside India” was construed by the Court to include territory that
may be part of a nation as well as territory that may have ceased to be part of a
nation.
Manner of Enforcement of Foreign Judgements/Decrees
The pathway to be taken for enforcement of a foreign judgement depends on
whether the court is present in a reciprocating territory or not.

14.  When Judgement Passed by Foreign Court of a Reciprocating
Territory
 SEC.44A of the CPC states that a judgement passed by a superior court of a
reciprocating territory can be executed in India as if it were passed by an Indian
District Court.
 SEC.44A (1) of the CPC states that when a certified copy of a decree passed by a
superior court of a reciprocating territory is filed in a district court in India, it
shall be executable in India and its execution will have the same effect as if it was
passed by a District Court in India (as laid down in Order 21 of the CPC).
 When an execution application is being filed, the original certified copy of the
relevant decree and a certificate obtained from the superior court has to be
attached to the application.
 When Judgement is Passed by a Foreign Court of a Country Not
Designated as Reciprocating Territory
 When the relevant judgement/decree has been passed by the court of a territory
not designated as a reciprocating territory by the Union Government, the
applicant must file a suit on the foreign judgement or the original cause of action
or both in a court in India possessing competent jurisdiction

15.  In the case of Marine Geotechnics LLC v/s Coastal Marine Construction
& Engineering Ltd., the Bombay High Court held that when a foreign court
from a territory which is not a reciprocating territory passes a decree, the person
who has obtained such a decree must file a suit on the foreign judgement or the
original cause of action or both in a court in India possessing competent
jurisdiction.
 This is because the foreign decree cannot be directly executed. Only a domestic
decree which has been passed by an Indian Court of competent jurisdiction which
is based on a suit based on the foreign decree is enforceable. This decree is
obtained only when the decree holder can show to the Indian court that the
foreign decree satisfies the test as laid down in S. 13 of the CPC.
 A suit on a foreign decree must be filed within 3 years from the date when the
foreign decree was passed.

17. 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.
In the case 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.
.

18. In light of the international court's decree for the termination of marriage.
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

19. Basis of Recognition and
Enforcement/ Execution of Foreign
Judgments under English Law
• The Judgment must have been
given by a court of competent
jurisdiction
a) Actions in personam (Copin
v. Adamson, 1874)
i) Presence
ii) Nationality
iii) Voluntary submission to the
foreign jurisdiction
b) Action in rem
• Final and conclusive judgment
• Judgment Impeachable on
Merit
• Regard of English ideas of
Natural Justice (Crawley v.
Isaacs, 186

20. CONCLUSION
Private International law has become a necessity in this era of Globalization.
Nations are connected with one another. It is now evident how nations work
for economic prosperity through economic cooperation. In such pursuit of
material wealth, it becomes very obvious that there will be clashes between
parties engaging in the contract, not only in the contract but also other legal
issues may arise..
As discussed in various statutes of Indian Laws have taken into
consideration the need for the comity of the nations, which forms the
foundation basis of Private International Laws. Various countries follow the
traditional rule, whereas few members of the European Union follow
Unified Private International Laws. there are various benefits that arise out
of the use of Unified Private International Laws. The law-makers and
legislators should focus on rectifying the discrepancies and the incoherency
within the domestic law, in order to pave the way for a much larger system
of the Unified Private International Laws.