CONCLUSIVENESS OF FOREIGN JUDGMENTS

S. 13 of the Code provides that 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 in certain situations covered
by clauses (a) to (f) of this Section. 
In Brijlal Ramjidas v. Govindram Gordhandas Seksaria [AIR 1947PC 192 (194)],
Supreme Court  held that-

8.“Section 13 speaks not only of “Judgment” but “any matter thereby directly adjudicated
upon”. The word ‘any’ clearly shows that all the adjudicative parts of the judgment are
equally conclusive.”

NON ENFORCEMENT
Under Section 13, there are six cases when a foreign judgment shall not be conclusive.

 Foreign Judgment not by a competent court

R.M.V. Vellachi Achi vs R.M.A. Ramanathan Chettiar [AIR 1973 Mad. 141]

28. “It is clear from Section 13(b) Civil Procedure Code that the foreign judgment will be
conclusive only if there was an adjudication between the same parties on the merits of the
case. In other words, if the foreign judgment is not based upon the merits, whatever the
procedure might be in the foreign country in passing judgments, those judgments will not
be conclusive. It is, therefore, open to the party against whom such foreign decrees are
sought to be executed under Section 44-A, Civil Procedure Code to resist the execution on
the ground that such foreign decrees are not conclusive as they are not passed on merits.”

R. Viswanathan vs Rukn-Ul-Mulk Syed Abdul Wajid [AIR 1961 SC 1]

"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 section 13
of the Code of Civil Procedure is in an international sense and not merely by the law of
foreign State in which the Court delivering judgment functions"

 Foreign Judgments not on Merits

The Actual test for deciding whether the judgment has been given on merits or not is to see
whether it was merely passed as a matter of course, or by way of penalty of any conduct of
the defendant, or is based upon a consideration of the truth or falsity of the plaintiff”s claim.

Gurdas Mann v. Mohinder Singh Brar [AIR 1993 P&H 92.]

“12. An exparte judgment and decree which did not show that the plaintiff had led evidence
to prove his claim before the Court, was not executable under Section 13(b) of the CPC since
it was not passed on the merits of the claim.”

 Foreign Judgments against International or Indian Law

I & G Investment Trust v. Raja of Khalikote [AIR 1952 Cal.  508.]

44. I have shown above that each of these propositions are incorrect. Therefore, the
decisions on the face of them are based on an incorrect view of international law…...
"Refusal" to apply any particular law does seem to connote that someone must put it forward
as a defence and the Court should ignore it.”
Gurudayal Singh v. Rajah of Faridkota [(1895) ILR 22 Cal 222]

“It is a fundamental principle of private international law that the rights and liabilities of the
parties to a contract are determined by the place of contract.”

 Foreign Judgments opposed to the principle of Natural Justice

Lalji Raja & Sons v. Firm Hansraj Nathuram [AIR 1971 SC 974]
“The judgment-debtors were served with the notice of the suit. They did not choose to appear
before the court, Hence there is no basis for the contention that any principle of natural
justice had been contravened. Further as held earlier the judgment in question is not a
foreign judgment.”

 Foreign judgment obtained by fraud

S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1]

“1.It is the settled proposition of law that a judgment or decree obtained by playing fraud on
the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court
or by the highest court has to be treated as a nullity by every court, whether superior or
inferior. It can be challenged in any court even in collateral proceedings.”

A.V. Pappaya Sastry v. Government of Andhra Pradesh [(2007) 4 SCC 211]

“Judgement, decree or order obtained by practicing fraud on the court or authority is nullity
and non est in the eyes of law.”

 Foreign Judgments founded on breach of Indian Law

ENFORCEMENT OF FOREIGN JUDGMENTS- IF NOT CONCLUSIVE, WHAT WEIGHT DO THEY

HOLD?

A foreign Judgment which is conclusive and does not fall within section 13 (a) to (f), may be
enforced in India in either of the following ways.

Even though a decree has been passed ex parte it will be binding if evidence was taken and
decision was given on consideration of evidence. The real test is not whether decision was
or was not ex parte but whether it was merely formerly passed as a matter of course or by
way of penalty or it was based upon a consideration of the truth or otherwise of plaintiff’s
claim.
By instituting execution proceedings

A foreign Judgment may be enforced by proceedings in execution in certain specified cases

mentioned in Section 44-A of the CPC.

Maloji Rao Narsingh Rao vs Sankar Saran And Ors. [AIR 1962 SC 1737]

“31. The reason given by the Court was that Pakistan was not a "reciprocating territory"
and since no notification had been made permitting the execution of decrees of one Dominion
in the other, the decree-holder could not put the decree in execution against the judgment-
debtor.”

Mohanlal v. Tribhovan, [AIR 1963 SC 358.]

A foreign judgement may also be enforced by proceedings in execution in certain specific

circumstances mentioned in Section 44A of the Code which provides that when a certified
copy of a decree from any of the superior courts of any reciprocating territory is filed in a
District Court, it shall be executed in India. It is open to the defendant to file any objections
open to him/her under Section 13 of the Act when the foreign judgement is sought to be
enforced under Section 44A. It is to be noted that the judgement must comply with all the
conditions specified under Section 13