The concept of enforcement of foreign judgments in India is contemplated under the Civil Procedure Code (CPC). A foreign judgment is judgment of foreign court and foreign court means a court situated outside India. Thus the judgments delivered by courts in England, France and USA etc. are foreign judgments. The fundamental principle for enforcement of foreign judgment or decree in India is to make sure that the judgement or decree is a conclusive one, passed on the merits of the case by a superior court having competent jurisdiction. The recognition and enforcement of foreign judgment and decrees in India is governed by Section 44-A read with Section 13 of the CPC.
Definition of foreign court and foreign judgment under CPC:
The Civil Procedure Code defines the foreign court and foreign judgment as follows:
Foreign Court {Sec 2(5)}: Means a Court situated outside India and not established or continued by the authority of Central Government.
Foreign Judgment {Sec 2 (6)}: Means the judgment of foreign court.
What are the requirements of foreign judgments for enforcement in India?
A foreign judgment required to be conclusive for it to be enforceable in India. The test of conclusiveness is provided under Section 13 of CPC, which is enumerated below:-
- It must be pronounced by court of competent jurisdiction.
- It must be given on the merits of the case.
- It must not to be founded on incorrect view of international law or must not refuse to recognize law of India in cases in which such law is applicable.
- The proceedings on the basis of which judgment is delivered must not opposed to the principle of natural justice.
- It must not be obtained by fraud.
How foreign judgment can be enforced in India?
Under the Indian Law there are two ways to enforce foreign judgments. Firstly by filing an execution petition under Section 44-A of the CPC where the judgment has been passed by court of reciprocating territory. Secondly by filing suit upon the foreign judgment/decree.
Decrees passed by courts in reciprocating territories: Reciprocating territories enjoy the privilege of direct enforcement of a decree within the territory of India by filling execution of the decree before Indian court. As per the provisions of CPC, if a certified copy of the decree of any of the superior court of any reciprocating territory is filed in a district court, then decree may be executed in India as if it has been passed by the district court.
Judgments passed by non-reciprocating territories: In the case of judgments pertains to a country which is not a reciprocating territory then fresh suit will have to be filed in India on the basis of such judgment or decree. Such judgment or decree will be treated as a piece of evidence in fresh suit. Execution of such foreign decree can be filed only after obtaining Indian decree. The time limit to file fresh law suit in India is within 3 years from the date of foreign judgment.
However in both cases, decree has to pass the test of Section 13 of CPC which specifies certain exception under which foreign judgment becomes inconclusive, and therefore not executable or enforceable in India.
What are reciprocating territories?
Reciprocating territories means any country or territory outside India which has been declared a reciprocating territory by Central Govt. by notification in Official Gazette for the purpose of foreign judgments. The following countries come under the list of reciprocating territories as per the provisions of Section 44-A of the CPC:-
- United Kingdom (UK)
- Singapore
- Bangladesh
- United Arab Emirates (UAE)
- Malaysia
- New Zealand
- Hong Kong
- Trinidad &Tobago
- The Cook Island including Niue and The Trust Territories of Western Samoa
- Papua and New Guinea
- Fiji
- Aden
What is the limitation period for enforcement of foreign judgments?
The CPC provides that foreign judgments and decrees from reciprocating territories are treated as decrees passed by Indian courts for the purpose of execution. In the same way, Limitation Act, 1963 would apply in the case of limitation period for enforcement of foreign judgments. Which is as under:-
- Limitation period for execution of a decree granting mandatory injunction would be 3 years from the date of decree.
- For execution of any other decree, limitation period would be 12 years from the date of decree or where the decree directs any payment of money or delivery of any property to be made at certain date.
A judgment obtained from a non-reciprocating territory can be enforced by filing a new suit in an Indian court for which a limitation period of three years has been specified under the Limitation Act, 1963 commencing from the date of the said foreign judgment.
Which is a competent court for enforcement of foreign judgments?
As per the provisions of CPC, a judgment from a reciprocating territory seeking enforcement in India must be filed before the district court having jurisdiction to entertain the matter. If the judgment or decree has been passed by a court of a non reciprocating territory, then a suit must be filed before the competent Indian Court.
Is right to appeal lies?
Foreign judgments pronounced by superior court in reciprocating territories are enforceable in India in same manner as judgment from domestic district court. Therefore, right to appeal against such judgments exists in the same manner as the right to appeal from the judgment of an Indian court. In case of judgments of non-reciprocating territories, the issue of enforcement and appeal arise in respect of such judgment when the same have been affirmed by domestic civil court.
Conclusion:
The process for enforcement of foreign judgement is complicated one because of risk under Section 13 of the CPC. It can be seen that, the plaintiff has to come to the Indian Courts to either get the foreign judgment executed under Section 44-A of the CPC or file a suit upon the judgment for its enforcement. Therefore, it is advisable for a foreign plaintiff to institute suit in India itself in case the defendant in India to avoid the risk under Section 13.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
