Under the Indian law there are two ways of getting a foreign judgment enforced. Firstly by filing an Execution Petition under Section 44A of the CPC (in case the conditions specified therein are fulfilled). Secondly by filing a suit upon the foreign judgment /decree.
1. Mode of Enforcement of Foreign Judgments
A foreign judgment which is conclusive under Section 13 of the Code of Civil Procedure, 1908, can be enforced in India by:
1 .Instituting a suit on such judgment; or
2. By instituting execution proceedings.
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 by a country, unless such decision is embodied in a decree of a court of that country. A suit on a foreign judgment must be filed within a period of three years from the date of the judgment.
1. Under S. 44A of the CPC, a decree of any of the Superior Courts of any reciprocating territory are executable as a decree passed by the domestic Court. Therefore in case the decree does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India. In case the decree pertains to a country which is not a reciprocating territory then a fresh suit will have to be filed in India on the basis of such a decree or judgment, which may be construed as a cause of action for the said suit. In the fresh suit, the said decree will be treated as another piece of evidence against the defendant.
However in both cases the decree has to pass the test of S. 13 CPC which specifies certain exceptions under which the foreign judgment becomes inconclusive and is therefore not executable or enforceable in India.
1. In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar, AIR 1973 Mad. 141, it was alleged by the respondent that since he was not a subject of the foreign country, and that he had not submitted to the jurisdiction of the Foreign Court (Singapore Court), the decree could not be executed in India. The Appellant, in defense of this argument, stated that the Respondent was a partner of a firm which was doing business in Singapore and had instituted various suits in the Singapore Courts. Therefore, the Appellant argued, that the Respondent had accepted the Singapore Courts jurisdiction. The Court held that it was the firm which had accepted the jurisdiction of the foreign Court and the Respondent, in an individual capacity, had not accepted the jurisdiction. This was one of the reasons for which the High Court held that the decree against the Respondent was not executable.
2. The High Court in the above case had referred to a decision of the Madras High Court in the case of Ramanathan Chettiar v. Kalimuthu Pillai AIR 1914 Mad. 556, which lays down the circumstances when the foreign courts would have jurisdiction under this Section. The circumstances mentioned are as follows:
a) Where the person is a subject of the foreign country in which the judgment has been obtained against him on prior occasions.
b) Where he is a resident in foreign country when the action is commenced.
c) 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.
d) Where the party on summons voluntarily appears
e) Where by an agreement a person has contracted to submit himself to the forum in which the judgment is obtained.
2. Thus India’s Code of Civil Procedure, 1908 (Code) provides the statutory framework for the enforcement of judgments and the execution of decrees passed by competent courts in foreign countries. Under Section 44-A of the Code, a judgement-creditor with a certified copy of a foreign judgment can apply to an Indian district court for enforcement of the judgement as if it were passed by the district court itself. The application must be filed under Order XXI of the Code within three years of obtaining the judgment from a foreign court, as held by the Bombay High Court in the case of Algemene Bank Nederalnd vs SD Choksi, AIR 1990 Bom 170.
3. To be enforceable in India, foreign judgments must be passed by superior courts in reciprocating territories notified in the official gazette by the Government of India (GOI). The Supreme Court held in the case of Moloji Nar Singh Rao vs Shankar Saran AIR 1962 SC 1737 that a foreign judgment which does not arise from the order of a superior court of a reciprocating territory cannot be executed in India. It ruled that a fresh suit will have to be filed in India on the basis of the foreign judgement.
4. India’s courts also recognize and enforce ex-parte foreign judgments. In the case of Sivagaminatha vs Natraja AIR Mad 385, the Madras High Court held that the decree of a foreign court passed ex-parte would be binding, provided the evidence was taken and the decision was based on consideration of the evidence.
5. To avoid procedural delays, a judgment-creditor must ensure that an application for enforcement of a foreign judgment is filed before a court of competent jurisdiction and all parties necessary for its enforcement in India are made part of the proceedings.
6. Also, before making an application to enforce the judgment, the judgment-creditor should ascertain the assets of the judgment-debtor and the rights of third parties vested in those assets.
7. Our case falls under section 39 sub-clause b of cpc that is
39. Transfer of decree.
(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court 1[of competent jurisdiction]
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or
(b) If such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court.
The foreign judgment/ decree which can be executed could only be for payment of a sum of money and cannot be for an immovable property. The claim of money which is passed in a foreign currency could provisionally be claimed in Indian rupees converted at the rate prevailing on the institution of the proceedings.
It is manifestly clear that a foreign judgment and decree in India can only be executed if the same is passed by the courts of reciprocating territory and should pass the seven tests as laid down in Section 13 of the Code of Civil Procedure, 1908.