Code of Civil Procedure, 1908 (CPC)
Foreign Judgment and Foreign Decree Distinguished
A judgment given abroad may be worth a great deal or very little in India, and which it is depends on two things: whether it satisfies Section 13 of the Code of Civil Procedure, 1908, and whether it can be executed directly under Section 44A or must be sued upon afresh. The distinction between a foreign judgment and a foreign decree matters precisely because Section 44A speaks of a decree of a superior court of a reciprocating territory. These notes set out the definitions, the two routes, and the six exceptions.
The two routes into an Indian court, and the six exceptions in Section 13
1. The Definitions
§ Sections 2(5) and 2(6), CPC 1908 Section 2(5): foreign Court means a Court situate outside India and not established or continued by the authority of the Central Government. Section 2(6): foreign judgment means the judgment of a foreign Court. |
§ Foreign decree: Explanation 2 to Section 44A 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 a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment. |
§ Three points on the definitions • Foreign judgment is the wider term. Any judgment of any foreign court, whatever its subject matter, is a foreign judgment, and Section 13 tells us when it is conclusive. • Foreign decree, for the purposes of Section 44A, is much narrower. It must be a decree of a superior court of a reciprocating territory notified by the Central Government, and it must be for a sum of money of the kind described. • So a foreign judgment for possession, or an injunction, or a declaration, cannot be executed under Section 44A, however impeccable the court that gave it. The route for it is a fresh suit. |
2. The Two Routes
Basis | Section 44A: direct execution | A fresh suit on the judgment |
|---|---|---|
Available for | A DECREE of a SUPERIOR COURT of a RECIPROCATING TERRITORY, for a sum of money as defined | Any foreign judgment that is conclusive under Section 13 |
What is filed | A CERTIFIED COPY of the decree in a District Court, with a CERTIFICATE from the superior court stating the extent of satisfaction or adjustment | An ordinary plaint, on which court fee is paid and process issues |
How it is treated | As if it had been passed by the District Court itself | As the cause of action for a new suit, the judgment being conclusive under Section 13 |
What must be proved | The decree and the certificate; the certificate is conclusive proof of the extent of satisfaction | The judgment and its conclusiveness; Section 14 raises a presumption of competent jurisdiction |
Defences available | Sub-section (3): the court shall refuse execution if the decree falls within any of the exceptions in Section 13 | The same six exceptions, pleaded as a defence to the suit |
Excluded subject matter | Taxes and like charges, fines and penalties, and arbitration awards | No such exclusion, though the suit must otherwise be maintainable |
Time and cost | Execution proceedings only | A full suit, with the delay and cost that implies |
3. Section 13: When a Foreign Judgment Is Conclusive
§ Section 13, CPC 1908 (in substance) 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. |
§ Three of the exceptions worth expanding • Clause (b): not on the merits. A judgment given by default, without any consideration of the plaintiff's case, is not a judgment on the merits, and does not become conclusive merely because the defendant did not appear. • Clause (d): natural justice. This looks at the procedure, not the result: whether the party had notice and a fair opportunity to be heard before an impartial tribunal. An erroneous decision reached fairly is not opposed to natural justice. • Clause (e): fraud. Consistently with the general principle that fraud vitiates the most solemn proceedings, a foreign judgment obtained by fraud is not conclusive, and this exception is expressly stated rather than left to implication. |
4. Section 14: The Presumption
§ Section 14, CPC 1908 The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. |
i. The presumption is of jurisdiction only, not of the correctness of the judgment or of its conformity with the other five exceptions.
ii. It is rebuttable, and the burden of displacing it lies on the party resisting the judgment.
iii. The competence referred to is in the international sense, that is, whether the foreign court had jurisdiction over the defendant on principles the Indian courts recognise, not merely under its own law.
5. Landmark Points
- Section 2(5) and 2(6). A foreign court is one outside India not established or continued by the authority of the Central Government; a foreign judgment is the judgment of such a court.
- Section 13. A foreign judgment is conclusive as to any matter directly adjudicated upon, except on the six grounds stated.
- Section 14. On production of a certified copy, the court presumes that the judgment was pronounced by a court of competent jurisdiction, rebuttably.
- Section 44A. A decree of a superior court of a reciprocating territory may be executed in India as if it had been passed by a District Court.
- Explanation 2 to Section 44A. Decree here means one under which a sum of money is payable, excluding taxes, fines and penalties, and never an arbitration award.
- Section 44A(3). Execution shall be refused where the decree falls within any of the exceptions in Section 13.
- Where Section 44A does not apply, the remedy is a fresh suit on the foreign judgment, which is conclusive under Section 13.
6. Frequently Asked Questions
What is a foreign judgment?
Under Section 2(6), the judgment of a foreign court; and under Section 2(5), a foreign court is one situate outside India and not established or continued by the authority of the Central Government.
How is a foreign decree executed in India?
Where it is a decree of a superior court of a reciprocating territory, a certified copy may be filed in a District Court under Section 44A, together with a certificate from the superior court stating the extent to which the decree has been satisfied or adjusted, and it is then executed as if passed by that District Court.
What if the country is not a reciprocating territory?
Section 44A does not apply, and the judgment cannot be executed directly. The remedy is a fresh suit on the foreign judgment, in which the judgment is conclusive under Section 13 unless one of the six exceptions is established.
Can any foreign decree be executed under Section 44A?
No. Explanation 2 confines it to a decree under which a sum of money is payable, excluding sums payable in respect of taxes or other charges of a like nature and fines or other penalties, and excluding arbitration awards in every case.
When is a foreign judgment not conclusive?
Under Section 13, where it was not pronounced by a court of competent jurisdiction, not given on the merits, founded on an incorrect view of international law or a refusal to recognise Indian law where applicable, obtained by proceedings opposed to natural justice, obtained by fraud, or sustaining a claim founded on a breach of any law in force in India.
Is a judgment given by default conclusive?
Ordinarily not, because clause (b) of Section 13 requires the judgment to be given on the merits. A decree passed without any consideration of the plaintiff's case is not on the merits merely because the defendant did not appear.
What does Section 14 presume?
That a judgment of which a certified copy is produced was pronounced by a court of competent jurisdiction, unless the contrary appears on the record. The presumption goes only to jurisdiction, and may be displaced by proving want of it.
7. Related Topics in This CPC Series
- Foreign Judgments: Sections 13, 14 and 44A
- Execution of Decrees: Sections 36 to 74 and Order XXI
- Doctrine of Res Judicata: Section 11
- Fraud Vitiates Judicial Proceedings