CPC Presenation

Imp stuff

“Foreign Court” means a Court situate outside India and not established or continued by the
authority of the Central Government u S.2(5). “Foreign judgment” means the judgment of a foreign
Court u S.2(6). CPC sections that deal with foreign judgment/decrees are Section 13, Section 14 and
Section 44. Section 13 embodies the principle of Private International Law that court will not enforce
a foreign judgment if the judgment is not that of a competent court. The Hon’ble Supreme Court in
the case of Moloji v Shankar1 held that the rules laid down under Section 13 are of substantive law,
as well, along with being that of procedural law.

Section 13 lays down the basic rules, which should not be violated by any foreign court in passing a
decree/judgment. Every foreign judgment/ decree has to pass these ‘tests’ laid down under Section
13 of the CPC. Section 13 of the CPC reads- When foreign judgment not conclusive— 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— (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; (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 the 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.2

In deciding whether the same is conclusive, courts in India will not consider whether are supported
by evidence or are otherwise correct, because its binding character may be displaced only by
establishing whether the case calls within one or more of the six clauses in Section 13 in case of
Vishwanath v Abdul Wajid [1963]. A foreign judgment to be conclusive must be by a court of
competent jurisdiction and the so called competence must be in an international platform, and not
merely by the law of the foreign state, which delivered the judgment which was held in the case of
Vishwanath v Abdul Wajid.

If the judgment falls within one or more clauses of section 13, it will cease to have a conclusive value
as to any matter thereby adjudicated upon and will be open to attacks from the opposing party on
the grounds mentioned in Section 13.

A foreign judgment may operate as res judicata except in the six cases specified in the section 13 and
subject to the other conditions mentioned in Section 11 of C.P.C. The rules laid down in this section
are rules of substantive law and not merely of procedure.

Distinction bw foreign judgment and res judicata..

A foreign judgment suit can be effective in a Court in this country even though the foreign court had
no jurisdiction if the defendant submitted to the jurisdiction and defended in without any objection.
When the defendant submits to the jurisdiction of foreign court by falling written statement the
decree passed by it is valid and executable and the same was held in the case of Narhari v Pannalal.3

1
Moloji v Shankar [1962] SCC 1737.
2
Code of Civil Procedure 1908, s 13.
3
Narhari v Pannalal [1977] SCC 164.
When it comes to the enforcement of a foreign Judgment, it can be either enforced under Section 44
of CPC or by filing a suit upon the foreign judgment/decree. . A country, which has a reciprocating
status, its judgment/decree, can be executed directly by an Indian court. A judgment/decree by a
non-reciprocating country is not directly enforceable under the Indian courts. A suit has to be filed
pertaining to the issue at hand, where the judgments/decree by a non-reciprocating country will be
treated of evidentiary value.

Under section 13(e) of the Civil Procedure Code, the foreign judgment is open to challenge “where it
has been obtained by fraud”. In the case of Sankaran v Lakshmi4 the Supreme Court held as follows:
“In other words, though it is not permissible to show that the court was mistaken, it might be shown
that it was misled/ tricked into giving the judgment.

In the case of Satya v Teja Singh5 the Supreme Court held that since the plaintiff had misled the
foreign court as to its having jurisdiction over the matter, although it could not have had the
jurisdiction, the judgment and decree was obtained by fraud and hence inconclusive. Section 13 of
the Code makes a foreign judgment obtained by fraud unenforceable in India. The SC in this case
held that fraud as to the merits of the case may be ignored but fraud as to the jurisdiction of the
foreign court delivering the judgment is a vital consideration in the recognition of the decree passed
by that foreign court.

Such fraud, however, should not be merely constructive, but must be actual fraud consisting of
representations designed and intended to mislead; a mere concealment of fact is not sufficient to
avoid a foreign judgment.

4
Sankaran v Lakshmi AIR 1974 SC 1764 at p. 1770.
5
Satya v Teja Singh AIR 1975 SC 105 at p. 117 ¶ 50.