Enforcement of Foreign Judgment

 

Enforcement of Foreign Judgment

A foreign judgment which is conclusive under section 13 of the code can be enforced in India in two ways:

1. By instituting the execution proceedings.

2.By instituting a suit on such foreign judgment;

    If the foreign judgment is passed by the superior court of the reciprocating territory then it will be enforced by filing the execution proceedings. But if the foreign judgment is not passed by the superior court of reciprocating territory then it will be enforced by instituting a civil suit on the basis of such foreign judgment.

                                                  1. Execution Proceedings

A foreign judgment  which is passed by the superior court of reciprocating territory can be enforced by filing the execution proceedings in India under the provisions of Section 44-A of the Code.

Section 44-A : Execution of decrees passed by courts in reciprocating territory : 1. Where a Certified Copy of a decree of any of the superior court 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. 

2. Together with the certified copy of the decree shall be filed a certificate from such superior court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, shall be conclusive proof of the extent of such satisfaction or adjustment.

3. The provisions of Section 47 shall from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this Section and the District Court shall refuse execution of any such decree, if it shown to the satisfaction of the court that the decree falls within any of the exceptions specified in clauses (a) to (f) of Section 13.

Explanation 1. “Reciprocating Territory” means any country or territory outside India which the Central Government may, by notification in the official Gazette, declare to be a reciprocating territory for the purpose of this Section; and “ Superior Court” with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 2. “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.

 

List of the Reciprocating Territories as per the provisions of Section 44A of CPC

•      United Kingdom.

•      Singapore.

•      Bangladesh.

•      UAE.

•      Malaysia

•      Trinidad & Tobago

•      New Zealand.

•      The Cook Island ( including Niue) and The trust Territories of Western Samoa.

•      Hong Kong

•      Papua and New Guinea.

•      Fiji

•      Aden.

In Moloji Nar Singh Rao vs. Shankar Saran AIR 1962 SC 1737 the Supreme Court of India held 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 judgment.

                                    2. Suit on Foreign Judgment

•      Where a judgment or decree is not of a superior court of a reciprocating territory then that foreign judgment may be enforced in India 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.

•      In such suits, 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.

•      Such a suit must be filed within 3 years from the date of the judgment.

Foreign Currency conversion rate

•      In a decree passed by foreign court, the amount awarded is generally in a foreign currency. Therefore, while enforcing the foreign decree in India, the amount has to be converted into Indian currency.

•      In Forasol vs. ONGC AIR 1984 SC 241 it was held by the Supreme Court of India that the date of the decree should be used for the calculation.