What do you understand by a foreign judgment? In what manner may decree of a Foreign Court be executed in India?

Question: What do you understand by a foreign judgment? In what manner may decree of a Foreign Court be executed in India?

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Answer

According to Section 2(6) of CPC, 1908, “foreign judgment” means the judgment of a foreign Court.

The foreign judgment is enforceable on the principle that it has been tried and adjudicated by a court of competent jurisdiction, and a legal obligation arises to satisfy that claim. Despite the fact that the principles of private international law of each state will differ, the comity of nations has recognized certain rules as common to civilized jurisdictions.

As per the rule of private international law, it is well-settled that unless a foreign court has jurisdiction in the international sense, the judgment delivered by that court would not be recognized or enforced in India. But the most important thing to be considered is the competency of the court’s jurisdiction, i.e. territorial competence over the subject matter and over the defendant.

A foreign judgment can be enforced in India through execution proceedings in specified cases as per Sections 44 and 44A of the code. An Execution must be filed within three years from the date of judgment as provided under Article 101 of the Schedule in the Limitation Act, 1963, and the provisions of the Limitation Act, 1963 apply in computing the period of limitation.

The High Court of Delhi, in the case of Transasia Private Capital v. Gaurav Dhawan, Ex Appl. (OS) 1191/2021, decided to waive the need for issuing a notice in instances involving a foreign judgment as per Order XXI Rule 22 of the CPC. This decision was made using the court's discretionary powers. As a result, an ex parte order was issued to protect the rights of the Decree Holder and preserve the existing situation.

Execution of Decree

If a foreign judgment/decree is conclusive u/s 13 of the CPC, it can be enforced in India in one of two ways:

1. by filing an Execution Petition under Section 44A of the CPC (in case of decrees by a court of reciprocating territory)
2. by filing a suit upon the foreign judgment/decree (in case of decrees by a court of non-reciprocating territory)

As per CPC, a ‘reciprocating territory’ means any country or territory outside India, which the Central Government may, by way of notification in the Official Gazette, declare to be a reciprocating territory and ‘Superior Courts’ in relation to such territory for this section.

Execution Petition under section 44A

In accordance with Section 44A of the CPC, a decree passed by any superior Court of a reciprocating territory is executable in India as if it had been passed by the District Court in India.
Therefore, decrees from Superior Courts in “reciprocating territories” can be enforced directly by filing an execution decree before the Indian Court of competent jurisdiction, following the procedure prescribed under the CPC.

Section 44A deals with the execution of decrees passed by Courts in reciprocating territory. According to this section: 

if a certified copy of a decree from a superior court in a reciprocating territory is filed in an Indian District Court, it can be enforced as if it were issued by the District Court itself. Along with the certified copy, a certificate from the superior court must be filed, stating the extent to which the decree has been satisfied or adjusted. This certificate is considered conclusive evidence of the satisfaction or adjustment for the purposes of the proceedings. The provisions of Section 47, which pertain to the execution of decrees, apply to these proceedings, and the District Court will refuse to execute the decree if it falls within the exceptions outlined in clauses (a) to (f) of Section 13, as long as this is proven to the satisfaction of the court.

Explanation 1.— “Reciprocating territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and “superior Courts”, with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 2.— “Decree” with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of fines or other penalties, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.

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