Section 13 : When Foreign Judgment not conclusive with the videos
Foreign Judgment
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In this lecture we will
discuss as to when the foreign judgments will be operative as res judicata in
India and when it will not operate as res judicata in India.
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Section 13 and 14 of The
Code of Civil Procedure 1908 enacts a rule of res-judicata in case of foreign judgments.
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Section 13 of CPC is
divided into two parts. The first part of Section states about the general rule
of private international law that the
foreign judgments shall be conclusive in nature and will be enforceable by
Indian Courts between the same parties to the suit. Whereas the second part of
section 13 contains 6 exceptions
under which the foreign judgments
shall not be conclusive and will operate not as res judicata in Indian Courts.
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The expression “Foreign
Judgment” under section 2(6) of the code means the judgment of a foreign court.
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Foreign Court under
section 2(5) of the code means a court situated outside India and not
established or continued by the authority of the Central Government.
Section 13 : When Foreign Judgment not conclusive
: A Foreign Judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties or between parties under 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 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
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.
Before a foreign judgment may be said to be
conclusive, the following conditions must be satisfied:-
i.
It must be by a
competent court, meaning thereby that such court must have jurisdiction over
the subject-matter of controversy and jurisdiction over parties as recognised
by international law, and
ii.
Such court must have
directly adjudicated upon the matter.
Similarly, a Court has no jurisdiction
to pass a decree in respect of immoveable property situated in a foreign state.
Thus, a decree passed by the Ceylon
Court ( Which is a foreign Court) in a suit on a contract against a native of
India, who was not at the time of the action residing in Ceylon is a nullity
and cannot be enforced by a suit in an Indian Court.
Now students we will discuss the
exceptions of Section 13 one by one.
Clause (a): Where the Foreign Judgment has been pronounced
not by a Competent Court : A judgment of a foreign court to be
conclusive between the parties must be a judgment pronounced by a Court of
Competent Jurisdiction. In private and international law, unless a foreign court
has jurisdiction in the international sphere, a judgment delivered by that
Court will not be recognised or enforced in India and a judgment or order
passed by a court having no such jurisdiction is null and void.
Clause (b): Judgment not on merits of the case :
To be conclusive and binding, the judgment of a foreign Court must have been
given on merits of the case and if a foreign judgment is not given on the
merits of the case, then it is not conclusive. Where a judgment is given on
evidence, then it is deemed to be judgment on the merits. However, if no
evidence is adduced by the plaintiff and the judgment is given against the
defendant by way of penalty, then it will not be conclusive.
Courts in
India have the right to examine a foreign judgment to see whether it has been
given on merits or not.
The mere fact of the decree being ex-parte will not
justify a finding that it was not on merits. An ex-parte judgment by a foreign
court is as valid and executable as a biparte judgment. [ Lalji Rama & Sons
Vs. Firm Hansraj Nathuram AIR 1974 SC 974].
In a
matrimonial dispute, both the parties were domiciled in the U.S. and last
resided together in the U.S. The wife filed a divorce petition before the Court
in the U.S. and judgment was passed on merits after due service of summons upon
husband and after the husband had filed a written statement. It was held that
the judgment of the court in the U.S. would be conclusive and binding upon the
parties. Merely because the husband did not appear before the court after
filing the written statement would not make the judgment exparte and hence not
liable to be excluded under section 13 of CPC. [ Kashmira Kale Vs. Kishore
Kumar Mohan Kale (2010) 2 AIR Bom 660]
Clause (C) Judgment based on incorrect view of law.
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A foreign judgment which
appears to be founded on an incorrect view of international law or a refusal to
recognise the Indian Law in cases in which such Indian Law is applicable, is
not conclusive.
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Such a judgment shall
not be recognised in this country and hence it is not conclusive of the matters
adjudicated.
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But it is very
important to note here that the mistake must be apparent on the face of the
proceedings.
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Thus, where in a suit
instituted in England on the basis of a contract made in India, the English
Court erroneously applied English Law, then the judgment of the Court is
covered clause (C) of Section 13.
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As it is the general
principle of Private International Law that the rights and liabilities of the
parties to a contract is governed by the law of the country where the contract
is made. This principle of law is known as lex loci contractus.
Clause (d) Foreign Judgment opposed to natural
justice.
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The Foreign Judgment to
be conclusive must not opposed the requirement of natural justice.
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That means that in the
judicial process it must comprise impartial persons and they should act fairly
to both the parties to the case; it must give reasonable notice to the parties
to the dispute and gave each party adequate opportunity of presenting his case.
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A judgment which is the
result of bias or want of impartiality on the part of the judge or 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
and will be regarded as a nullity.
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However, a judgment
rendered by a foreign court after observance of fundamental judicial procedure
and due observance of judicial process, is binding and conclusive even though
it might have proceeded on an erroneous view of evidence or law.[ Y.
Narasimha Rao Vs. Y. Venkata Lakshmi (1991) 3 SCC 451].
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Bias of the judge will
bring the case within clause (d).
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However if the judge
merely suggested compromise in the case or refused the request of adjournment
of the case, then it can not inferred that the judge had any bias against any
party to the case.
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It is not proper for a
judge to sit in appeal against his own judgment.
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Proceedings even can
not be said to be opposed to natural justice if the defendant does not make
proper use of the opportunity offered to him.
Clause (e) Judgment Obtained by Fraud
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It is well established
principle of Private International Law that if a foreign judgment is obtained
by fraud, then it will not operate as res-judicata.
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In Narasimha Rao
Vs.Venkata Lakshmi (1991) 3 SCC 451, A (husband) obtained a decree of
divorce against B (Wife) from an American Court on the ground that he was a
resident of America. Then he remarried with C. B filed a criminal complaint
against A and C for bigamy. A and C filed an application for discharge.
Dismissing the application, the Supreme Court held that the decree of
dissolution of marriage was without jurisdiction in as much as neither the
marriage was solemnized nor the parties last resided in America. It was
therefore not enforceable in India.
Clause (F) : Judgment founded on breach of Indian Law.
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Any foreign judgment
which comes before an Indian Court must be in conformity with and must not
offend the law in force in India or the public policy.
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But if the foreign
judgment is in any such breach, then it cannot be enforced in India.
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Thus, a foreign
judgment for a gambling debt or on a claim which is barred under the Law of
Limitation in India is not conclusive.
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“Section 14: Presumption as to foreign Judgments:- 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.”
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Section 13(a) of the
Code requires that the foreign Court must be a competent court.
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And Section 14 laid
down the presumption that once the certified copy of a foreign judgment is
tendered before the court, then the court shall presume that such judgment was
pronounced by a court of competent jurisdiction and the plaintiff need not
state that the foreign court had jurisdiction over the parties and subject
matter.
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This presumption is a
rebuttable presumption of law and the defendant may prove the want of
jurisdiction in the court pronouncing the judgment.
Submission to Jurisdiction of Foreign Court
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If the parties to the suit
voluntarily submits to the jurisdiction of a foreign court, then the judgment
of the foreign court shall be binding on both the parties to the case.
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Submission to the
jurisdiction of a foreign court may be express or implied.
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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.
Irregularities not affecting Foreign Judgment
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There is a distinction
between want of jurisdiction and irregular exercise of jurisdiction.
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