Dr.

Ram Manohar Lohiya

National Law University,
Lucknow.

Conflict of Laws

Rough Draft for the project on

Validation of Foreign Judgments in India

Under The Guidance Of: Submitted by:

Dr. P.K. Gautam Ravi Gangal

Asst. Professor (Law) Roll no. 96
8th Semester
Abstract:
The emerging legal issues on “jurisdiction” as regards transactions over the internet have come
to the fore front in the contemporary world Therefore making it absolutely necessary to
understand it’s viability if in so far as the recognition and validation of foreign judgments or
decrees is under contention. Even after exercise of jurisdiction, the Courts may be unable to help
the plaintiff in getting relief in case the local laws of the country concerned have certain
restrictions for the execution/enforcement of foreign judgments or decrees in the country.

Under Indian Law, execution of decrees, whether foreign or domestic, is governed by the
provisions of the Code of Civil Procedure, 1908.

Under the Indian law there are two ways of getting a foreign judgment enforced. Firstly by filing
an Execution Petition under Section 44A of the CPC (in case the conditions specified therein are
fulfilled). Secondly by filing a suit upon the foreign judgment/decree.

Under S. 44A of the CPC, a decree of any of the Superior Courts of any reciprocating territory
are executable as a decree passed by the domestic Court. Therefore in case the decree does not
pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by
the Central Government in the Official Gazette, the decree is not directly executable in India. In
case the decree pertains to a country which is not a reciprocating territory then a fresh suit 1 will
have to be filed in India on the basis of such a decree or judgment, which may be construed as a
cause of action for the said suit. In the fresh suit, the said decree will be treated as another piece
of evidence against the defendant2.

However in both cases the decree has to pass the test of S. 13 3 CPC which specifies certain
exceptions under which the foreign judgment becomes inconclusive and is therefore not
executable or enforceable in India.

Under S. 13 of the Code of Civil Procedure, 1908 a foreign judgment becomes inconclusive and
consequently unenforceable in the following circumstances:
(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

1
Moloji Nar Singh Rao v. Shankar Saran, AIR 1962 SC 1737 at p. 1748 para 14.
Also see I & G Investment Trust v. Raja of Khalikote, AIR 1952 Cal. 508 at 523 para 38
2
S. 14 of CPC- Presumption as to foreign judgments
3
S. 13 of CPC- When foreign judgment not conclusive
 (c) where it appears on the face of the proceedings to be founded on an incorrect
view of international law or a refusal to recognise the law of India in cases in
which such law is applicable;

(d) where the proceedings in which judgment was obtained are opposed to natural
justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India.

Objective and scope

The objective of this project work is not only to analyse the statutory provisions as the emerging
legal issue of “jurisdiction” has become a very essential part of every matter, but to also analyse
difference pronouncements of various courts. In the present paper, various decisions of the
Supreme Court of India, various High Courts and other Courts are discussed in order to bring the
law on the point, in perspective. Which is followed by a broad overview of S. 13.

Introduction
The decisions discussed herein, concern diverse aspects of the rules governing recognition of
foreign judgements in India. Madras High Court’s Full bench decision in Sheik Ali v. Sheik
Mohamed,4 is certainly one of the most important of the decisions. Sheik Ali also included
problems of the application of the Indian Limitation act, 1908, as lex fori in the context of
statutorily- enjoined reciprocity.

In keeping with the common law conflicts tradition, Indian courts continue to regard foreign
judgments as “facts” not entitled as such to recognition & enforcement. They can be enforced in
vast majority of cases by a suit in an Indian court having appropriate jurisdiction and are
occasionally said to confer a “cause of action” 5. The “original cause of action”, wherever this
may exist, may often help to give jurisdiction to a particular court & indeed may be proceeded
upon by a suit regardless of the foreign judgment.

Recognition and enforcement of foreign judgements on the basis of reciprocity, however, did not
find a place on the Indian statute-book till 1933. And even then, as now, the application of such
statutory reciprocity is limited to a small number of countries, 6 though pleas for more extensive
reciprocal arrangements have not been wanting.
4
AIR 1967 Mad 47
5
Badat and Co. v. East India Trading Co., AIR 1964 SC 538
6
So far extended to Commonwealth Countries
Tentative Chapterisation

 INTRODUCTION
 Circumstances
A. Not pronounced by a court of competent jurisdiction
B. Not given on the merits of the case
C. Where the judgment is passed disregarding the Indian Law or the International
Law
D. Where the proceedings in which judgment was obtained are opposed to natural
justice
E. Where it has been obtained by fraud
F. Where it sustains a claim founded on a breach of any law in force in India
G. Reciprocity
 Conclusion
 Bibliography

Research Methodology
SOURCES OF DATA

The non-empirical approach of research has been used by the researcher for making this project.
Various books, articles and web sources have been consulted and taken inspiration from in the
making of this project.

METHOD

Descriptive and analytical approach.

Literature Survey
 www.manupatra.com
 www.indiankanoon.com
 www.scconline.com
 http://indiankanoon.org/search/?formInput=foreign%20judgment%20enforcement
 http://bni-india.com/law-reciprocity-works-mysterious-ways/

 http://www.maheshwariandco.com/repository/articles/downloads/enforcea
 http://legalinformationindia.wordpress.com/2011/06/03/can-judgments-from-
foreign-courts-be-enforced-in-
india/bility_of_foreign_judgments_and_foreign_awards.pdf
 http://astrealegal.com/enforcement-of-foreign-judgments
 http://madaan.com/enforcingjudgment.html
 http://msmlawfirm.wordpress.com/2009/10/15/execution-of-foreign-
decreesjudgments-in-india/
Books
 Halsbury’s Laws of India, Vol 7, p 65.0001
 Conflict of Laws, 6th Edition
 Sir John Woodroffe & Ameer Ali’s Commentary of Code of Civil Procedure,
1908; 4th Edition, Vol I
 The Conflict of Laws, Dicey & Morris, 8th Ed.