Execution of foreign judgements/decrees in India is a grey area of law in
which a lot more is needs to be done by legislation, executive and judicial
branch of government. The emerging legal issues on jurisdiction
as regards transactions
over the internet can hardly ignore the legal aspects involved in the
execution/enforcement of foreign decrees.
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 judgements 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 (CPC) (as amended from
time to time).
How Foreign Judgement/Decree Are Executed In India:
As per Civil Procedure Code, there are two ways of getting a foreign judgement
- Firstly, by filing an Execution Petition under Section 44A of the CPC
(in case the conditions specified under sec 13 of CPC are fulfilled).
by filing a suit upon the foreign judgement/decree.
The execution under section
44A is done only when the decree is passed by the superior court of
reciprocating countries. Who are the reciprocating countries, shall be notified
by government of India.( Presently United Kingdom, Singapore, Bangladesh,
Malaysia, Trinidad andTobago, New Zealand, Cook Island, Trust Territories of
Western Samoa, Hongkong, Papua New Guinea, Fiji, Aden and UAE are notified as
Reciprocating territory) In case of reciprocating countries, the foreign decrees
are passed as such without filing of any fresh suit in Indian court because such
decrees are deemed to be passed by Indian courts of competent jurisdiction.
non-reciprocating countries, the decree holder of foreign judgement will have to
file the fresh suit in domestic court of India. The foreign judgement/decree
passed thereby is used only as evidence in this fresh suit in India against the
defendant. The foreign decree act as a conclusive evidence in the fresh suit in
India except the scenario when any of the deficiencies as provided under section
13 of CPC is present.
It is pertinent to note that even if a decree is passed by a reciprocating
country then such decree/judgement needs to pass the test of section 13 of CPC
before its execution. The only benefit which the decree of a reciprocating
country enjoy in India is that the plaintiff need not to file a fresh suit in
domestic court rather the foreign decree as such is executed subject to the test
of section 13.
Test of Section 13 of Code of Civil Procedure 1908:
Section13 of the Code of Civil Procedure, 1908 says that a foreign judgment
becomes inconclusive and consequently unenforceable in the following
- where it has not been pronounced by a Court of competent jurisdiction;
- where it has not been given on the merits of the case;
- 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;
- where the proceedings in which judgment was obtained are opposed to
- where it has been obtained by fraud;
- where it sustains a claim founded on a breach of any law in force in
If any foreign decree passes these six grounds given in section 13 (a)-(f) then
it shall be executed as such in India without further enquiry or fresh suit if
the decree is from a superior court of reciprocating country. Even in the decree
from non-reciprocating countries, such decree becomes conclusive evidence and it
is converted in to decree of domestic court in India if they pass the test of
section 13 of CPC.
Through this article, I would like to discuss with the help of judicial
precedents, the grounds provided in Section 13 of CPC on the basis of which a
foreign decree or judgements are challenged to proscribe its execution or to
determine its conclusiveness.
13 (A): Not Pronounced By A Court Of Competent Jurisdiction:
The following are the cases in which the Courts have held that there is no
jurisdiction with the foreign Court and hence the Judgment or decree is
unenforceable due to violation of section 13(a).
In the case of Sirdar Gurdial Singh v. Maharaja of Faridkot
, a Privy Council
Judgment delivered by Lord Selbourne, where it was held that
In a personal action to which none of these causes of jurisdiction previously
discussed apply, a decree pronounced in absentem by a foreign Court to the
jurisdiction of which the defendant has not in any way submitted himself is by
international law an absolute nullity. He is under no obligation of any kind to
obey it, and it must be regarded as a mere nullity, by the Courts or every
nation except (when authorized by special local legislation) in the country of
the forum by which it was pronounced.
In the case of Kukadap Krishna Murthy v. Godmatla Venkata Rao
, while relying
upon the case of Sirdar Gurdial Singh's it was held by a Full Bench of the
Andhra Pradesh High Court that a decree passed in absentem was a total nullity
as a foreign judgment, in other words, it is not a valid foreign judgment, the
execution of which could be executed in Courts situated in a foreign territory
but not in India.
Similarly the Madras High Court in the case of Ramanathan Chettiar v. Kalimuthu
3 which lays down the circumstances when the foreign courts would have
jurisdiction under this Section.
The circumstances mentioned are as follows:
- Where the person is a subject of the foreign country in which the
judgment has been obtained against him on prior occasions.
- Where he is a resident in foreign country when the action is commenced.
- Where a person selects the foreign Court as the forum for taking action
in the capacity of a plaintiff, in which forum he is sued later
- Where the party on summons voluntarily appears
- Where by an agreement a person has contracted to submit himself to the
forum in which the judgment is obtained.
13(B): Where It Has Not Been Given On The Merits Of The Case:
The following are the cases in which the Courts have held that the judgments
were not passed on the merits of the case and hence were inconclusive.
It is significant to mention the decision of the Privy Council in the case of
D.T. Keymer v. P. Viswanatham
4. In which a suit for money was brought in the
English Courts against the defendant as partner of a certain firm, wherein the
latter denied that he was a partner and also that any money was due.
the defendant was served with certain interrogatories to be answered. On his
omission to answer the interrogatories, his defence was struck off and judgment
entered for the plaintiff. When the judgment was sought to be enforced in India,
the defendant raised the objection that the judgment had not been given on the
merits of the case and hence was not conclusive under the meaning of S. 13(b) of
The matter reached the Privy Council, where the Court held that since the
defendant's defence was struck down and it was treated as if the defendant had
not defended the claim and the claim of the plaintiff was not investigated into,
the decision was not conclusive in the meaning of S. 13(b) and therefore, could
not be enforced in India.
In the case of Gurdas Mann v. Mohinder Singh Brar
5, the Punjab & Haryana High
Court held that an exparte judgment and decree which did not show that the
plaintiff was given a opportunity to led evidence to prove his claim before the
Court, was not executable under S. 13(b) of the CPC since it was not passed on
the merits of the claim.
In the case of K.M. Abdul Jabbar v. Indo Singapore Traders P. Ltd.
6, the Madras
High Court held that passing of a decree after refusing the leave to defend
sought for by the defendant was not a conclusive judgment within the meaning of
S. 13(b) of CPC.
13(C): Where The Judgment Is Passed Disregarding The Indian Law Or The International Law.
The case of Anoop Beniwal v. Jagbir Singh Beniwal
7 is about the matrimonial
dispute between the parties. The facts of the case are that the plaintiff had
filed a suit for divorce in England on the basis of the English Act, namely the
Matrimonial Causes Act, 1973.
The particular ground under which the suit was
filed was that the respondent has behaved in such a way that the petitioner
cannot reasonably be expected to live with the respondent. This ground is
covered by S. 1(1)(2)(b) of the Matrimonial Causes Act, 1973. The decree was
obtained in England and came to India for enforcement. The respondent claimed
that since the decree was based on the English Act, there was refusal by the
English Court to recognise the Indian Law.
The Court held that under the Indian
Hindu Marriage Act under S. 13(1)(ia), there is a similar ground which is
cruelty on which the divorce may be granted. Therefore the English Act, only
used a milder expression for the same ground and therefore there was no refusal
to recognize the law of India. Thus the decree was enforceable in India and
section 13(c) of code of civil procedure is no bar to its enforceability.
A catena of judgments on the subject has been given by different High Courts
from which it can be proposed that:
- A judgment or decree passed by a foreign Court upon a claim for
immovable property which is situate in the Indian territory may not be
enforceable since it offends International Law as prohibited under sec 13(c)
- A judgment or decree passed by the foreign Court before which a contrary
Indian law had been shown, but the Court refused to recognise the law, then that
Judgement or decree may not be enforceable. However if the proper law of
contract is the foreign law then this may not be applicable.
13(D): Where The Proceedings In Which Judgment Was Obtained Are Opposed To Natural Justice
The Foreign Court which delivers the judgment or decree must be composed of
impartial persons, must act fairly, without bias in good faith, and it must give
reasonable notice to the parties to the dispute and afford each party adequate
opportunity of presenting his case, in order to avoid any allegation of not
fulfilling the principles of natural justice in case the judgment or decree
comes to the Indian court for enforcement. Unless this is done the judgment or
decree passed by a foreign Court may be opposed to Principles of Natural
In the case of Hari Singh v. Muhammad Sad
8 the Court found that the foreign
Court did not appoint a person willing to act as a guardian ad litem of the
minor defendant. The court also held that proceedings could not have proceeded
ex-parte against the minor. The Court further held that the minor defendant did
not have any knowledge of the suit being pending against him even after he
became a major which was before the judgment was passed. On this basis the court
held that the passing of the judgment against the minor was opposed to natural
justice within the meaning S. 13(d) of CPC.
In the case of Lalji Raja & Sons v. Firm Hansraj Nathuram
9 the Supreme Court
held that just because the suit was decreed ex-parte, although the defendants
were served with the summons, does not mean that the judgment was opposed to
13(E): Where It Has Been Obtained By Fraud:
In case the plaintiff misleads or lies to the Foreign court and the judgment is
obtained on that basis, the said Judgment may not be enforceable, however if
there is a mistake in the judgment then the Indian courts will not sit as an
appeal Court to rectify the mistake.The difference between bonafide mistake and
fraud or misleading the court by misrepresentation are well recognized by
In the case of Satya v. Teja Singh
10 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.
In the case of Maganbhai Chhotubhai Patel v. Maniben
11 the court held that since
the plaintiff had misled the court regarding his place of residence , the decree
having been obtained by making false representation as to the jurisdictional
facts, the decree was obtained by fraud and hence was inconclusive.
13(F): Where It Sustains A Claim Founded On A Breach Of Any Law In Force In India
A judgment or a decree, passed by a foreign court, on a claim founded on a
breach of any law in force in India may not be enforceable. However, in case it
is based upon a contract having a different proper law of the contract
may be enforced.
In the case of T. Sundaram Pillai v. Kandaswami Pillai
12, the plea of the
defendant was that the judgment was obtained in breach of the Contract Act since
the defendants at the relevant time were minors when the contract was entered
into and since under the Contract Act they were not competent to enter into a
contract, the claim was founded on the breach of the Indian Law.
The Court held
This claim is founded partly perhaps upon a breach of the contract Act, but
also partly upon a claim under the Contract Act which in no way involves its
breach. Whether that claim is a good one or a bad one is not for me now to
decide. The District Munsif of Trivandrum has given a decree to the appellant
and that decree sustains a claim which was not wholly founded upon a breach of
the Contract Act. It seems to me therefore that the appellant cannot be
prevented by clause (f) of S. 13 from executing his decree in British India.
In the case of I & G Investment Trust v. Raja of Khalikote
13, it was held as
It is argued that the Orissa Money Lender's Act precludes a decree being passed
for more than double the principal amount and in passing a decree, based on a
claim which violates that rule, the English Court sustained a claim founded on
the breach of a law in force in the State of Orissa. I am unable to accept the
The claim was not based on the law as prevailing in India at all.
Rightly or wrongly, the plaintiffs alleged that the parties were governed not by
the Indian law but the English Law. The English Court accepted that plea and
were consequently not sustaining a claim based on any violation of the law in
Suppose, that the defendant had submitted to the jurisdiction of the
English Court and that Court passed a decree. Such a decree would by implication
have decided that the defendant was bound by English Law and that the Orissa
Money Lender's Act did not apply. Such a decision would be binding from the
international point of view and the point could not be further agitated in these
Limitation Period Of Execution Of Foreign Decree In India:
The question of limitation for execution of foreign decrees in India was
reiterated by honourable Supreme Court of India in Bank of Baroda Vs Kotak
Mahindra Bank Limited (Civil Appeal No 2175 of 2020) and apex court held that
limitation period of cause country shall be the limitation period for the
purpose of execution of foreign decree in India.
Honourable court did not accept the contention that the limitation period starts
when application under section 44 A is filed. Court held that execution of
decree is controlled by section 47 and order 21 of code of civil procedure 1908.
The view worldwide appears that the limitation law of cause country (Foreign
court in this case) should be applied even in forum country (Indian courts in
this case. Furthermore, we are of this opinion that in those cases where the
remedy stands extinguished, the rights of the decree holder to execute the
decree in forum country also dies.
A judgment or a decree is passed by a foreign Court against an Indian defendant,
the judgment or decree may not be enforceable against him due to the operation
of S. 13 of CPC. The plaintiff has to come to the Indian courts to either get
the foreign judgment executed under S. 44A or file a fresh suit upon the
judgment for its enforcement.
Therefore by getting a decree in the foreign
Court, the plaintiff only avoids the inconvenience of leading evidence in the
Indian Courts but runs a much bigger risk under S. 13. Therefore it may
advisable for a foreign plaintiff to institute claims in India itself in case
the defendant is in India provided it is acceptable to him to go through the
lengthy court procedures in civil cases.
- 21 Ind. App. 171
- AIR 1962 A.P. 400.
- AIR 1973 Mad. 141
- AIR 1916 PC 121.
- AIR 1993 P&H 92.
- AIR 1981 Mad. 118
- AIR 1990 Del. 305 at 311.
- AIR 1927 Lah. 200
- AIR 1971 SC 974 at p. 977
- AIR 1975 SC 105 at p. 117 para 50
- AIR 1985 Guj. 187
- AIR 1941 Mad. 387.
- AIR 1952 Cal. 508 at p. 525 para 46.
, is a Delhi Based Lawyer & Research Scholar.