Dr.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

Conflict of Laws
Project
Recognition and Enforcement of Foreign Judgment-
An Indian Perspective

Submitted to:
Submitted by:

Mr. P.K. Gautam Sugandha

Chaudhary

1
Assistant Professor of Law Roll No.
141

VIII th
Semester

TABLE OF CONTENTS

1. INTRODUCTION
2. NATURE, SCOPE AND OBJECT
3. PRINCIPLES OF INTERNATIONAL LAW AND INTERNATIONAL
DOCUMENTS ON THE SUBJECTS
4. POSITION IN ENGLAND
5. JURISDICTION OF A FOREIGN COURT
6. THE STATUTORY PROVISIONS FOR RECOGNITION AND
ENFORCEMENT OF FOREIGN JUDGMENTS
7. CONCLUSIVENESS OF FOREIGN JUDGMENT
8. JUDGMENTS IN REM
9. PROOF OF FOREIGN JUDMENT
10. WHEN FOREIGN JUDGMENT IS NOT BINDING
 Foreign judgment not by a competent court;
 Foreign judgment not on merits;
 Foreign judgment against international or Indian law
 Foreign judgment opposed to natural justice
 Foreign judgment obtained by fraud
 Foreign judgment founded on a breach of Indian law
11. FOREIGN JUDGMENT AND RES JUDICATA
12. SUBMISSION TO JURISDICTION OF FOREIGN COURT
13. PRESUMPTION AS TO FOREIGN JUDGMENT, APPLICATION OF
SECTION 14

2
14. ENFORCEMENT OF FOREIGN JUDGMENT
15. BY INSTITUTING A SUIT ON SUCH FOREIGN JUDGMENT
16. EXECUTION PROCEEDINGS
17. CONCLUSION

1. Statement of the Problem:

The project examines the challenges and legal implications involved in the Recognition and
Enforcement of Foreign Judgments from an Indian perspective, particularly in relation to
Sections 13 and 14 of the Indian Code of Civil Procedure. The problem centers on understanding
how Indian courts interpret and apply foreign judgments and the exceptions where such
judgments may not be binding.

2. Objectives of the Study:

 To analyze the legal framework for the recognition and enforcement of foreign judgments
in India.
 To assess the efficacy and applicability of Sections 13 and 14 of the Code of Civil
Procedure, particularly in cases involving foreign judgments.
 To explore the various defenses available against foreign judgments in India, especially
focusing on grounds such as fraud, natural justice, and breach of Indian law.
 To examine international conventions and the principles of private international law that
influence the recognition of foreign judgments.

3. Research Questions:

 What are the statutory provisions governing the recognition and enforcement of foreign
judgments in India?
 Under what circumstances can a foreign judgment be challenged or not recognized in
India?
 How do Indian courts balance international law principles and Indian legal frameworks in
recognizing foreign judgments?
 What are the key differences between judgments in rem and in personam in the context
of foreign judgment recognition?

4. Chapterisation:

Here is a brief outline of the chapters based on the content:

3
1. Introduction
o Definition and significance of foreign judgments in Indian law.
o Overview of Sections 13 and 14 of the Code of Civil Procedure.
2. Nature, Scope, and Object
o Detailed explanation of the scope of foreign judgments and when they are
enforceable or not.
o Conditions under which a foreign judgment is valid or not under Indian law.
3. Principles of International Law and International Documents
o Overview of international conventions and practices, such as the Hague
Convention, regarding the enforcement of foreign judgments.
4. Position in England
o Historical context and the evolution of foreign judgment recognition in English
courts, and how it influences Indian law.
5. Jurisdiction of a Foreign Court
o Analysis of when a foreign court has jurisdiction to deliver a binding judgment.
6. Statutory Provisions for Recognition and Enforcement of Foreign Judgments
o Detailed examination of Sections 13 and 14 of the Code of Civil Procedure.
7. When Foreign Judgments Are Not Binding
o Conditions under which foreign judgments can be contested in India (e.g., fraud,
natural justice, breach of Indian law).
8. Foreign Judgments and Res Judicata
o Discussion of the principle of res judicata as applied to foreign judgments.
9. Conclusion
o Summary of findings and implications for the recognition of foreign judgments in
India, with a look toward future legal developments in this area.

4
 INTRODUCTION
The laws of other countries in the course of their business transactions or in
their personal matters also, sometimes govern Indian citizens. A case decided
by a foreign court may create a right in one party, which may need to be
enforced in India. Similarly, Indian courts may try cases involving foreigners.
All such judgments would be foreign judgments. The Code of Civil Procedure
has made provisions for such cases. Thus, an Indian Court cannot refuse to
entertain a suit founded upon a foreign judgment just because it has not been
decided in India. Sections 13 and 14 enact a rule of res judicata in case of
foreign judgments. These provisions embody the principle of private
international law that a judgment delivered by a foreign court of competent
jurisdiction can be enforced by an Indian court and will operate as res
judicata between the parties thereto except in the cases mentioned in Section
13. Now it is important to comprehend the basic features of a foreign court
and it’s Judgment. Therefore, it can be said that A Foreign Court is defined as
a court situated outside India and not established or continued by the
authority of the Central Government. And a Foreign Judgment means a
judgment of a foreign court. . In other words, a foreign judgment means
adjudication by a foreign court upon a matter before it. Thus judgments
delivered by courts in England, France, Germany, USA, etc. are foreign
judgments.1 Technically with more elaboration: The word ‘foreign judgment’ is

1
C.K. Takwani, Civil Procedure, Eastern Book Company, 6th Ed. 2009 (reprinted 2010)

5
defined in Section 2(6) of the Civil Procedure Code and denotes ‘a judgment of
a foreign court.’ The word judgment used in this sub-clause is not to be
understood by the definition stated in Section 2(9). 2 Instead it has to be
understood to mean ‘an adjudication by a foreign court upon a matter before
it’ and not to mean the reasons for a decision or order. 3 Section 2(5) defines a
foreign court. Two conditions have to be satisfied in order to call a Court a
foreign court within the meaning of this sub-clause, namely,-
It must be situate outside India and it should not be established or continued
by the authority of the Central Government. Thus, the above-said definition
shows that the fact that, for administrative purposes, the various Courts in
India are given separate territorial jurisdiction does not make them foreign
courts with respect to one another.4 For example, the Privy Council, which
was the highest Court of India during the British era, is a foreign court now.
Sections 13 and 14 of the Code of Civil Procedure enact a rule of res judicata
in respect of foreign judgments and are based on a principle of private
international law, which states that a judgment delivered by a foreign court of
competent jurisdiction can be enforced by the courts in India and this will
operate as res judicata between the parties in all cases, except those which
fall within the exception clauses mentioned in Section 13. 5 These sections are
applicable not only to cases where the foreign judgment is set up as a defence
but also to cases where the plaintiff seeks to obtain a decree in an Indian
court on the foreign judgment. For an Indian Court to give effect to a foreign
judgment many different factors need to be considered, such as, the
nationality of the Court which gave judgment, the dates at which the
proceedings were commenced which culminated in the judgment, the nature
of the order made by the foreign Court.

2
Section 2(9): “Judgment” means the statement given by the Judge of the grounds of a
decree or order.
3
Brijalal Ramjidas v. Govindram Gordhandas Seksaria, 74 IA 203 at 210.
4
V.R.Manohar and W.W.Chitaley, The Code of Civil Procedure, Volume 1, 9th edn., All India
Reporter Limited, Bombay, 1977, p. 36.
5
Justice C.K.Thakker, Civil Procedure, 5th edn., Eastern Book Company, Lucknow, 2003, p.
93.

6
The following pages examine the reasons as to why there is such a rule as the
one enacted in Section 13, as well as the defences available to a defendant in
a suit upon a foreign judgment, i.e., the exceptions to the rule enunciated in
Section 13. The drafting prerequisites to a suit upon a foreign judgment are
also examined.

NATURE, SCOPE AND OBJECT

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
Sec. 11 of C.P.C. The rules laid down in this section are rules of substantive
law and not merely of procedure. The fact that the foreign judgment may
fail to show that every separate issue, such as, the status of the contracting
parties, or the measure of damages, was separately framed and decided, is
irrelevant unless it can be shown that failure brings the case within the
purview of one of the exceptions to Section 13.
The judgment of a foreign court is enforced on the principle that where a
court of competent jurisdiction has adjudicated upon a claim, a legal
obligation arises to satisfy that claim. The rules of private international law
of each State must in the very nature of things differ, but by the comity of
nations certain rules are recognized as common to civilized jurisdictions.
Through part of the judicial system of each State these common rules have
been adopted to adjudicate upon disputes involving a foreign element and
to effectuate judgments of foreign courts in certain matters, or as a result of
international conventions. Such recognition is accorded not as an act of
courtesy but on considerations of justice, equity and good conscience. An
awareness of foreign law in a parallel jurisdiction would be a useful
guideline in determining our notions of justice and public policy. We are
sovereign within our territory but "it is no derogation of sovereignty to take
account of foreign law."
As has been rightly observed by a great jurist: "We are not so provincial as
to say that every solution of a problem is wrong because we deal with it
7
otherwise at home"; and we shall not brush aside foreign judicial process
unless doing so "would violate some fundamental principle of justice, some
prevalent conception of good morals, some deep-rooted tradition of the
common weal."

PRINCIPLES OF INTERNATIONAL LAW AND

INTERNATIONAL DOCUMENTS ON THE SUBJECTS
Under the traditional rules of international law, courts had no jurisdiction
over persons who owed no allegiance to the country in which the court was
situate. The position at international law was summarized through judicial
pronouncement in the year 1894, to quote Lord Selborne in this occasion:
Territorial jurisdiction attaches (with special exceptions) upon all persons
either permanently or temporarily resident within the territory while they
are within it; but it does not follow them after they have withdraw from it,
and when they are living in another independent country. It exists always as
to land within the territory, and it may be exercised over movables within
the territory; and in questions of status or succession governed by domicile,
it may be exist as to persons domiciled, within the territory. 6
However, in order to derive right position it is apt to mention that these
rules were unduly narrow and did not reflect the practice in most of the
Common law Countries along with some civil law countries, which
conferred jurisdiction on their courts in several cases where the cause of
action had arisen within the country. There is a common practice in the
realm of commercial contracts with an international element to specify in
the contract itself that the courts in a particular country would alone have
jurisdiction to determine any disputes that may arise between them relating
to the contract.
In order to bring parity and strike a balance among the divergent concepts
of law regarding the subject matter an international convention called the
6
Gurdayal Sigh v. Rajah of Faridkot (1895) 22 Cal 222 (PC)

8
Hague Convention on the Choice of Court was entered into in 1965,
followed by the Hague Convention on the Recognition and Enforcement of
Judgments in Civil and Commercial Matters in 1971. It is important to
mention here that the latter should be read with a Protocol agreed to on the
same date.
The principle provisions of the Convention permit parties to agree, in
advance, in civil and commercial matters, that any dispute that may arise
between them, would be decided in the courts of a particular country; the
judgment of a court so chosen will be recognized and enforced in other
states which have implemented the Convention.

POSITION IN ENGLAND
English Courts have recognized and enforced foreign judgments from the
17th Century. The reason such judgments were enforced was said earlier to
be the regard English Courts had to comity. The reason why such
judgments are enforced is said now to be found on the principle that the
judgment of a competent foreign court imposes a duty or obligation on the
defendants which the courts in England are bound to enforce. However
there are some exceptions in the matters of matrimony and maintenance. It
is to be observed that if a foreign judgment cannot be impeached on any of
the grounds; it will be enforced even if it is erroneous as English Courts do
not go into the merits of the case. Admission of Evidence is not admissible
in England, an erroneous conclusion as to English Law, or its own law or
procedural errors, will not result in an English Court declining to enforce
judgment.
Presently, the rules of the common law apply only in the relatively few cases
where statutory provisions are not attracted. Judgments of Commonwealth
countries can be executed under a statute on the basis of reciprocity, and so
can the judgments of countries of the European Union and some other
countries.

9
 JURISDICTION OF A FOREIGN COURT
It is well settled proposition in private international law that unless a
foreign Court has jurisdiction in the international sense, a judgment
delivered by the court would not be recognized and enforced in India. 7 It is
also to be noted that the jurisdiction which is important in such matters is
only the competence of the Court, which can be explained as territorial
competence over the subject matter and over the defendant. Its competence
or jurisdiction in any other sense is not regarded as material by the courts
in this country.8 As a procedure it is apt to mention that the material date to
decide the jurisdiction of the court is the time when the suit is instituted. 9
Normally in the following circumstances would give jurisdiction to foreign
courts:
i. Where the person is a subject of the foreign country in which the
judgment has been obtained;
ii. Where he was a resident in the foreign country when the action was
commenced and the summons was served on him;
iii. Where the person in the character of plaintiff selects the foreign
court as the forum for taking action in which forum he issued later;
iv. Where the party on summons voluntarily appeared; and
v. Where by an agreement, a person has contracted to submit himself to
the forum in which the judgment is obtained.

THE STATUTORY PROVISIONS FOR RECOGNITION AND

ENFORCEMENT OF FOREIGN JUDGMENTS

"A foreign judgment is conclusive as to any matter thereby adjudicated

upon and cannot be impeached for any error either of fact or of law"
--Dicey

7
Sankaran Govindan vs. Lakshmi Bharati, (1975) 3 SCC 351 at p. 368
8
R. Viswanathan vs. Rukun-ul-Mulk Sayed Abdul, AIR 1963 SC 1
9
Andhra Bank Ltd. vs. R. Srinivasan AIR 1962 SC 232

10
As stated earlier that the application of Section 13 C.P.C along with
application of Sections 14 and 44 A govern all the legality regarding
recognition and enforcement of foreign judgment in the country, it is
necessary to dissect the statutory provision in light of the analytical
approach-
The provision laid down under Sec. 13 of the Code, a foreign judgment is
conclusive and will operate as res judicata between the parties there to
accept in the cases mentioned therein. In other words, a foreign judgment is
not conclusive as to any matter directly adjudicated upon, if one of the
conditions specified in clauses (a) to (f) of section 13 is satisfied and it will
then be open to a collateral attack. In the following six cases, a foreign
judgment shall not be conclusive:
 Foreign judgment not by a competent court;
 Foreign judgment not on merits;
 Foreign judgment against international or Indian law
 Foreign judgment opposed to natural justice
 Foreign judgment obtained by fraud
 Foreign judgment founded on a breach of Indian law

 A judgment for the costs of a suit can be enforced under section 3 as

it is a decision on ‘any matter’ within the meaning of section 13. 10
 The court has discretion to award interest pedente lite for the period
a suit for the enforcement of a foreign judgment is pending.11

CONCLUSIVENESS OF FOREIGN JUDGMENT

As per the application of law a foreign judgment is conclusive and will
operate as res judicata between the parties and privies though not
strangers. It is firmly established that a foreign judgment can be examined
from the point of view of competence but not of errors. In considering

10
Janardhan Mohandas Rajan Pillai v. Madhubhai Patel AIR1953 Sau16
11
Barket Lal v. Devidas AIR1953Hyd 29

11
whether a judgment of a foreign court is conclusive, the courts in India will
not require whether conclusions recorded by a foreign court are correct or
findings otherwise tenable. In other words, the court cannot go into the
merits of the original claim and it shall be conclusive as to any matter
thereby directly adjudicated upon between the same parties subject to the
exception enumerated in clauses (a) to (f) of Section 13.12
It is important to mention as a rule of international law regarding the
conflict existing, that judgment cannot be questioned on Merits because a
foreign judgment is conclusive under section 13 of C.P.C. Thus, its
conclusions on the assessment of evidence, or the reliability of witnesses,
cannot be assailed.

JUDGMENTS IN REM
Section 41 of the Indian evidence Act, 1872 is one of a group of sections
providing when a judgment of a court is relevant evidence in relevant
evidence in other civil proceedings. It deals with judgments in rem, that is,
a judgment of a competent court which confers upon any person any legal
character, or which declares any person to be entitled to any specific thing,
not as against any specified person but absolutely; such judgments are
relevant when the existence of any such legal character, or the title of any
such person to any such thing, is in issue. Section 41 has to be read with
Section 44, which provides that a judgment would not be conclusive under
section 41 if it was shown that the Court which delivered it was not a
competent court, or that it had obtained by fraud or collusion.

PROOF OF FOREIGN JUDGMENT

A foreign judgment can be proved by producing a certified copy, which
could be a photostat copy, provided that it was duly certified as required by
section 86 of the Indian Evidence Act 1872. There are three requirements

Badat & Co. vs. East India Trading Co. AIR 1964 SC 538, See also Satya vs. Teja Singh
12

AIR 1975 SC 105, Narsimha Rao vs. Venkata Lakshmi (1991) 3 SCC 451

12
for such proof, they are as follows there must be a certificate by a legal
keeper of the document in the foreign court, a certificate by the Indian
consular authorities and proof of the character of the document under
foreign law, though the last requirement can be established by direct or
circumstantial evidence and may be presumed under section 86 of Indian
Evidence Act, 1872.

WHEN FOREIGN JUDGMENT IS NOT BINDING

 Competency of Court
It is a fundamental principle of law that the judgment or order passed by
the court, which has no jurisdiction, is null and void. Thus, a judgment of a
foreign court to be conclusive between the parties must be a judgment
pronounced by a court of competent jurisdiction. 13 Such judgment must be
by a court competent both by the law of state, which has constituted it and
in an international sense and it must have directly adjudicated upon the
"matter" which is pleaded as res judicata. But what is conclusive is the
judgment, i.e. the final adjudication and not the reasons for the judgment
given by the foreign court.14
Thus if A sues B in a foreign court, and if the suit is dismissed, the decision
will operate as a bar to a fresh suit by A in India on the same cause of
action. On the other hand, if a decree is passed in favor of A by a foreign
court against B and he sues B on the judgment in India, B will be precluded
from putting in issue the same matters that were directly and substantially
in issue in the suit and adjudicated upon by the foreign court. The leading
case on the point is Gurdayal Sigh v. Rajah of Faridkot15 in this case, A filed
a suit against B in the court of the Native State of Faridkot, claiming Rs.
60,000 alleged to have been misappropriated by B, while he was in A's
service at Faridkot. B did not appear at the hearing, and an ex parte decree
was passed against him. B was a native of another Native State Jhind. In
13
Supra 5
14
Viswanath vs. Abdul Wajid (ibid.)
15
(1895) 22 Cal 222 (PC)

13
1869, he left Jhind and went to Faridkot to take up service under A. But in
1874, he left A's service and returned to Jhind. The present suit was filed
against him in 1879; when he neither resided at Faridkot nor was he
domiciled there. On these facts, on general principles of International Law,
the Faridkot court had no jurisdiction to entertain a suit against B based on
a mere personal claim against him. The decree passed by the Faridkot court
in these circumstances was an absolute nullity. When A sued B in a court in
British India, against B on the judgment of the Faridkot court, the suit was
dismissed on the ground that Faridkot court has no jurisdiction to entertain
the suit. The mere fact that the embezzlement took place at Faridkot, was
not sufficient to give jurisdiction to the Faridkot court would have had
complete jurisdiction to entertain the suit and to pass a decree against him.
Similarly, a court has no jurisdiction to pass a decree in respect of
immovable property situated in a foreign State.
 Judgment not on merits
In order to operate as res judicata, a foreign judgment must have been
given on merits of the case.16 A judgment is said to have been given on
merits when, after taking evidence and after applying his mind regarding
the truth or falsity of the plaintiff's case, the Judge decides the case one way
or the other. Thus, when the suit is dismissed for default of appearance of
the plaintiff; or for non-production of the document by the plaintiff even
before the written statement was filed by the defendant, or where the
decree was passed in consequence of default of defendant in furnishing
security, or after refusing leave to defend, such judgments are not on
merits.17 However, the mere fact of a decree being ex parte will not
necessarily justify a finding that it was not on merits. 18

16
Narsimha Rao vs. Venkata Lakshmi (1991) 3 SCC 451
17
Keymer v. P.Visvanatham, AIR 1916 PC 121 see also Isodore Fernando v. Thommai Antoni
AIR 1933 Mad 544, K.M. Abdul Jaffar v. Indo-Singapore Traders, Private Limited, AIR 1981
Mad 118, Lalji Raja v. Firm Hansraj Nathuram AIR 1971 SC 974, International Woollen
Mills v. Standard Wool (U.K.) Limited, (2001) 5 SCC 265
18
R.M.V.Vellachi Achi v. R.M.A.Ramanatthan Chettiar AIR 1973 Mad 141

14
 The real test for deciding whether the judgment has been given on merits
or not is to see whether it was merely formally passed as a matter of course,
or by way of penalty for any conduct of the defendant, or is based upon a
consideration of the truth or falsity of the plaintiff's claim, notwithstanding
the fact that the evidence was led by him in the absence of the defendant.
 Judgment in derogation with International or Indian Law
A judgment based upon an incorrect view of international law or a refusal to
recognize the law of India where such law is applicable is not conclusive. 19
But the mistake must be apparent on the face of the proceedings. Thus,
where in a suit instituted in England on the basis of a contract made in
India, the English court erroneously applied English law, the judgment of
the court is covered by this clause in as much as it is a general principle of
Private International Law that the rights and liabilities of the parties to a
contract are governed by the place where the contract is made (lex loci
contractus).20
It is essential to mention here that the Court observed: "When a foreign
judgment is founded on a jurisdiction or on a ground not recognized by
Indian law or International Law, it is a judgment which is in defiance pf the
law. Hence, it is not conclusive of the matter adjudicated therein and,
therefore, unenforceable in this country."21
 Judgment Opposed to Natural justice
It is the essence of a judgment of a court that it must be obtained after due
observance on the judicial process, i.e., the court rendering the judgment
must observe the minimum requirements of natural justice - it must be
composed of impartial persons, act fairly, without bias, and in good faith; it
must give reasonable notice to the parties to the dispute and afford each
party adequate opportunity of presenting his case. A judgment, which is the

19
Badat & Co. vs. East India Trading Co. AIR 1964 SC 538 see also R. Viswanathan vs.
Rukun-ul-Mulk Sayed Abdul, AIR 1963 SC 1
20
Gurdayal Sigh v. Rajah of Faridkot (1895) 22 Cal 222 (PC)
21
Narsimha Rao vs. Venkata Lakshmi (1991) 3 SCC 451 see also Satya vs. Teja Singh AIR
1975 SC 105,

15
result of bias or want of impartiality on the part of a judge, will be regarded
as a nullity and the trial "corum non judice".22
Thus a judgment given without notice of the suit to the defendant or without
affording a reasonable opportunity of representing his case is opposed to
natural justice. Similarly, a judgment against a party not properly
represented in the proceedings or where the judge was biased is contrary to
natural justice and, therefore, does not operate as res judicata. The
expression "natural justice" in clause (d) of Section 13 relates to the
irregularities in procedure rather than to the merits of the case. 23 A foreign
judgment of a competent court, therefore, is conclusive even if it proceeds
on an erroneous view of the evidence or the law, if the minimum
requirements of the judicial process are assured; correctness of the
judgment in law or evidence is not predicated as a condition for recognition
of its conclusiveness by the municipal court. 24 Thus, a foreign judgment is
not open to attack on the ground that the law of domicile had not been
properly applied in deciding the validity of adoption or that the court
disagrees with the conclusion of the foreign court, if otherwise the
principles of natural justice have been complied with.
Procedure for lex fori is an important part of recognition and enforcement
of foreign judgment. There is no violation of natural justice if a foreign court
records evidence, and admits documents on record, following its own
procedure even if that procedure differs from the procedure established in
India.25
 Judgment obtained by fraud
Fraus et jus nunquam cohabitatnt and fraus et dolus nemini
patrocinari debent

22
Sankaran Govindan v. Lakshmi Bharathi, (1975) 3 SCC 351 see also R. Viswanathan vs.
Rukun-ul-Mulk Sayed Abdul, AIR 1963 SC 1
23
Ibid.
24
Ibid.
25
Wazir Shah v. Munshi Das AIR1941 Pat 109

16
In the light of above stated Latin maxims which mean “Fraud and justice
never dwell together” or “Fraud and deceit ought to benefit none” 26 it is
discussed that
The well-established principle of Private International Law is that if a
foreign judgment is obtained by fraud, it will not operate as res judicata. 27
Lord Denning observed: “No judgment of a court, no order of a Minister,
can be allowed to stand, if it has been obtained by fraud." Cheshire rightly
states: "It is firmly established that a foreign judgment is impeachable for
fraud in the sense that upon proof of fraud it cannot be enforced by action
in England." All judgments whether pronounced by domestic or foreign
courts are void if obtained by fraud, for fraud vitiates the most solemn
proceeding of a court of justice.
Explaining the nature of fraud, de Grey, C.J. stated that though a judgment
would be res judicata and not impeachable from within, it might be
impeachable from without. In other words, though it is not permissible to
show that the court was "mistaken", it might be shown that it was "misled".
There is an essential distinction between mistake and trickery. The clear
implication of the distinction is that an action to set aside a judgment
cannot be brought on the ground that it has been wrongly decided, namely,
that on the merits, the decision was one which should not have been
rendered, but it can be set aside if the court was imposed upon or tricked
into giving the judgment.
In the leading case of Satya v. Teja Singh28 , where a husband obtained a
decree of divorce against his wife from an American Court averring that he
was domiciled in America. Observing that the husband was not a bonafide
resident or domicile of America, and he had played fraud on a foreign court
falsely representing to it incorrect jurisdictional fact, the Supreme Court
held that the decree was without jurisdiction and a nullity.

26
A.V. Papayya Sastry vs. Govt. A.P. AIR 2007SC 1546
27
Supra 15
28
(1975) 1 SCC 120

17
Again, in Narsimha Rao v. Venkata Kakshmi29 , A husband obtained a decree
of divorce against his wife B again from an American High Court on the
ground that he was a resident of America. Then he remarried C. B filed a
criminal complaint against A and C for bigamy. A and C filed an application
for discharge. After dismissing the application, the Supreme Court held that
the decree of dissolution of Marriage was without jurisdiction in as much as
the marriage was not solemnized nor the parties last resided together in
America. It was, therefore, unenforceable in India.
In S.P. Chengalvaraya Naidu v. Jagannath30 , the Supreme Court stated: “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 the 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."
The fraud may be either fraud on the part of the party invalidating a foreign
judgment in whose favor the judgment is given or fraud on the court
pronouncing the judgment. 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.
 Judgment founded on breach of Law
Where a foreign judgment is founded on a breach of any law in force in
India, it would not be enforced in India. The rules of Private International
Law cannot be adopted mechanically and blindly. Every case, which comes
before an Indian Court, must be decided in accordance with Indian law. It is
implicit that the foreign law must not offend our public policy. Thus a
foreign judgment for a gaming debt or on a claim, which is barred under the
Law of Limitation in India, is not conclusive. Similarly, a decree for divorce

29
(1991) 3 SCC 451
30
(1994) 1 SCC 1 at 2

18
passed by a foreign court cannot be confirmed by an Indian court if under
the Indian law the marriage is indissoluble.
It is implicit that the foreign law and foreign judgment would not offend the
public policy.

FOREIGN JUDGMENT AND RES JUDICATA

A foreign judgment is conclusive as to any matter adjudicated upon by a
competent foreign court. Section 13 of the code in essence enacts a rule of
res judicata in relation to foreign judgments. Hence if a foreign judgment is
delivered by a court having jurisdiction in the matter, it would operate as
res judicata. In R. Viswanathan vs. Rukun-ul-Mulk Sayed Abdul 31 Justice J.C
Shah explained the difference in the following manner which endeavours to
show the dissimilarities between the concept of conclusiveness of the
judgment and res judicata:
The rule of conclusiveness of a foreign judgment as enacted in section 13 is
somewhat different in its operation from the rule of res judicata.
Undoubtedly both the rules are founded upon the principle of sanctity of
judgment competently rendered. But the rule of res judicata applies to all
matters in issue in a former suit which have been heard finally decided
between the parties and includes matters which might and ought to have
been made [a] ground of attack or defence in the former suit. The rule of
conclusiveness of foreign judgments applies only to matters directly
adjudicated upon. Manifestly, therefore, every issue heard and finally
decided in a foreign court is not conclusive between the parties. What is
conclusive is the judgment……….”

SUBMISSION TO JURISDICTION OF FOREIGN COURT

31
AIR 1963 SC 1

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It is well established that one of the principles on which foreign courts are
recognized to be internationally competent is voluntary submission of the
party to the jurisdiction of such foreign court. The reason behind this
principle is that having taken a chance of judgment in his favor by
submitting to the jurisdiction of the court, it is not open to the party to turn
round when the judgment is against him and to contend that the court had
no jurisdiction.
Submission to jurisdiction of a foreign court may be express or implied.
Whether the defendant has or has not submitted to the jurisdiction of a
foreign court is a question of fact, which must be decided in the light of the
facts, and circumstances of each case.

PRESUMPTION AS TO FOREIGN JUDGMENT, AN

APPLICATION OF SECTION 14
Section 14 of the Code declares that 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, or is proved.
However, if for admissibility of such copy any further condition is required
to be fulfilled, it can be admitted in evidence only if that condition is
satisfied. To illustrate it can be mentioned in the light of Nazrsimha Rao’s32
case that the mere production of a Photostat copy of a decree of a foreign
court is not sufficient. It is required to be certified by a representative of the
central Government in America.

ENFORCEMENT OF FOREIGN JUDGMENT

A foreign judgment, which is conclusive under Section 13 of the Code, can
be enforced in India in the following ways:
 By instituting a suit on such foreign judgment

32
(1991) 3 SCC 451

20
A foreign judgment may be enforced by instituting a suit on such foreign
judgment. The general principle of law is that any decision by a foreign
court, tribunal or quasi-judicial authority is not enforceable in a country
unless such decision is embodied in a decree of a court of that country. 33 In
such a suit, the court cannot go into the merits of the original claim and it
shall be conclusive as to any mater thereby directly adjudicated upon
between the same parties. Such a suit must be filed within a period of three
years from the date of the judgment.34

 Execution Proceedings
A foreign judgment may also be enforced by proceedings in execution in
certain specified cases mentioned in Section 44-A of the Code. The said
section provides that where a certified copy of a decree if any of the
superior courts of any reciprocating territory has been filed in a District
Court, the decree may be executed in India as if it had been passed by the
District Court. When a foreign judgment is sought to be executed under
Section 44-A, it will be open to the judgment-debtor to rake all objections,
which would have been open to him under Section 13 if a suit had been filed
on such judgment.35 The fact that out of six exceptions there has been due
compliance with some of the exceptions is of no avail. The decree can be
executed under Section 44-A only if all the conditions of Section 13 (a) to (f)
are satisfied.36

CONCLUSION
In the preceding pages, the general rule contained in Section 13 has been
explained and elucidated on. Section 13 thus enunciates the principle of

33
Roshan Lal vs. R.B. Mohan Singh AIR 1975 SC824
34
Limitation Act,1963, Section 101
35
R.M.V.Vellachi Achi v. R.M.A.Ramanatthan Chettiar AIR 1973 Mad 141.
36
Mohanlal vs.Ttribhovan Lal AIR1963 SC 358 see also Narhari Shivram vs. Pannalal
Umediram AIR1977 SC164

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Private International Law that the rights and liabilities validly acquired by
the judgment rendered by a foreign Court of competent jurisdiction would
be recognized as valid in India within the legal ambit of Civil procedure
code, 1908. A bare reading of section suggests that a foreign judgment
would be conclusive as to any matter thereby directly adjudicated upon
between the same parties. Hence we can conclude that a judgment of a
foreign Court creates estoppel or res judicata between the same parties,
provided such judgment is not subject to attack under any of the clauses (a)
to (f) of Section 13 of the Code. If any claim is made by any party and
subsequently abandoned at the trial of a suit and if the decree in that suit
necessarily implies that claim has not met with acceptance at the hands of
the court, then the court must be deemed to have directly adjudicated
against it.
The rule is of course not absolute and is subject to the six exceptions
mentioned in clauses (a) to (f) of Section 13. Numerous cases have come up
before the Courts as regards the interpretation to be given to these
exceptions as well as the general provisions. A large number of cases are in
the pre-Independence era, as at that time each Princely State was
considered as a sovereign Independent State with respect to the other
Princely States as well as with respect to British India. Many Privy Council
cases still hold the field in this area. This is also because the Indian law has
developed along the same lines as the English Law which finally led to do
justice to the parties and to prevent miscarriage of justice only on the
ground of territorial limitations. With the increase in trade between the
countries and trade barriers being reduced, the opportunities for the
application of this Section are only going to multiply. More and more suits
will be filed in the Indian courts on foreign judgments. The Courts will also
have to thus give effect to these judgments on the basis of the comity of
nations, but should also be cautious that such judgments are not against our
public policy. For instance, even in matrimonial matters, it is becoming
increasingly frequent that the parties, who are not resident in India, though

22
bound by Indian laws, might resort to the settlement of disputes in a foreign
Court for various reasons. In such cases, it is not necessary that the
judgment given by the foreign Court is going to be in consonance with the
Indian law on these issues. The Indian law on matrimonial issues, being a
complex area of law, the Courts would necessarily have to scrutinize these
judgments using the yardstick of Indian law, though the foreign judgment
may be perfectly valid in the country where it was pronounced.
Thus, the relevance of Section 13 will play a pivotal role in the years to
come and the judgments might require the Courts at times to balance, on
the one hand, the respect needed to be accorded to the foreign judgment
and on the other hand, the public policy and morals of the country.

BIBLIOGRAPHY

BOOKS
1. Black’s Law Dictionary, Bryan Garner (editor), 7th edn., West Group,
Minnesota, 1994
2. Atul M Setalvad, Conflict of Laws, LexisNexis Butterworths, 1st Ed.
2008
3. C.K. Takwani, Civil Procedure, EBC, sixth edn.2009
4. D.F.Mulla, The Code of Civil Procedure, 12th edn., N.M.Tripathi,
Bombay, 1990.
5. M.C.Sarkar, Civil Court Practice and Procedure Manual, 10th edn.,
Wadhwa and Company, Nagpur, 1997.
6. V.R.Manohar and W.W.Chitaley, The Code of Civil Procedure, Volume
1, 9th edn., All India Reporter Limited, Bombay, 1977.
7. Halsbury’s Laws of India, Volume 7, Civil Procedure, Butterworths
India, New Delhi, 2002
8. Justice C.K.Thakker, Civil Procedure, 5th edn., Eastern Book
Company, Lucknow, 2003

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ARTICLES
1. The Law and Practice of the Courts of the United Kingdom relating to
Foreign Judgments, Book Review by F.T.Piggot, (1885) 1 L.Q.R. 246.
2. Zelman Cowen, Foreign judgments and the Defence of Fraud, (1949)
65 L.Q.R. 82. Books

WEBSITES
1. http://www.legalservicesindia.com/articles/fore.htm
2. www.lexisnexis.com
3. www.manupatra.com

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