BY- RICHA CHOUDHARY
The Indian Code of Civil Procedure, 1908 (CPC) lays down the procedure for enforcement of foreign judgments and decrees in India.
A foreign judgment is defined under Section 2 (6) of the Code of Civil Procedure as a foreign court’s judgment. Under Section 2(5) of the Code of Civil Procedure, a foreign court simply means a court situated outside India and was not established, continued, or controlled by the authority of the Central Government.
Foreign Judgment Not by A Competent Court
It is a very basic and fundamental principle of law that the judgment or order which is passed by the court having no such jurisdiction, is considered null and void. Thus, for a foreign court’s judgment to make it conclusive between the parties then it must be a judgment that is pronounced by a court of competent jurisdiction. Such judgment must be competent by a court, both by the law of the state, which has constituted it and in a global or international sense and it must have directly adjudicated upon the “matter” which is pleaded as res judicata. But what’s conclusive is that the judgment, that is, the ultimate or final adjudication and not the mere explanations for the judgment given by the foreign court.
The leading case on this very purpose is Gurdayal Singh v. Rajah of Faridkot,
In that case, A filed a suit against B within the court of the Native State of Faridkot, claiming Rs. 60,000 alleged to are misappropriated by B, while he was in A’s service at Faridkot. B didn’t appear at the hearing, and thus, an ex parte decree was passed against him. B was a native of Jhind, another Native State. 1869, he left Jhind and visited Faridkot to take up service under A. But in the year 1874, he left A’s service and came back 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 held no jurisdiction to entertain a suit against B that supported a mere personal claim against him. The decree that was passed by the Faridkot court in these circumstances was an absolute nullity. When A sued B during 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 incontrovertible fact that the embezzlement happened at Faridkot, wasn’t sufficient to offer 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 during a foreign State.
Foreign Judgment Not on Merits
To operate as res judicata, a foreign judgment must be given on the merits of the case. A judgment is claimed to have been given on merits when, after taking evidence and after applying his mind regarding the reality or falsity of the plaintiff’s case, the judge clearly decides the case one way or the other. Thus, when the suit is dismissed on the ground of default of appearance of the plaintiff; or 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 the default of the defendant in furnishing security, or after refusing leave to defend, such judgments are considered not on merits.
However, the mere fact of a decree being ex parte won’t necessarily justify a finding that it had been not on merits. The real test which is given for deciding whether the judgment has been given on merits or not is to ascertain whether it had been merely formally passed as a matter after all, 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, even though that very evidence was led by him within the absence of the defendant.
Foreign Judgment Against International or Indian Law
A judgment, which relies upon an incorrect view of international law or a refusal to acknowledge the law of India where such law is applicable isn’t conclusive. But the error must be real and apparent on the face of the proceedings. Thus, wherein a suit instituted in England based on a contract made in India, the English court erroneously applied English law, the judgment of the court is covered by this clause in the maximum amount because it may be 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 formed (lex loci contracts).
“When a foreign judgment is founded on a jurisdiction or a ground not recognized by Indian law or international law, it’s a judgment which is in defiance of the law. Hence, it’s not conclusive of the matter adjudicated therein and, therefore, unenforceable in this country.”
Foreign Judgment Obtained based on Fraud
It is a well-established and known principle of international private law that if a foreign judgment is obtained by fraud, it will not operate as a res judicata.
In the leading case of Satya v. Teja Singh, during this case, a husband obtained a decree of divorce against his wife from an American Court averring that he was domiciled in America. But it was later on observed that the husband was actually not a bonafide resident or domicile of America, and he had played fraud on a foreign court because he represented an incorrect jurisdictional fact, the Apex Court held that the decree was without jurisdiction and a nullity.
Again, in Narsimha Rao v. Venkata Lakshmi, A husband obtained a decree of divorce against his wife B from an American High Court on the same ground that he was a resident of America. Then he remarried C. B later on filed a criminal complaint against A and C for the wrong of committing bigamy. A and C applied for discharge. Dismissing the application, the Apex Court held that the decree of dissolution of Marriage was actually without any jurisdiction in as much as neither the marriage was solemnized nor the parties last resided together in America. Therefore, it was unenforceable in India.
In Chengalvaraya Naidu v. Jagannath, the Supreme Court said: ” during this case, it’s the settled proposition of law that a judgment or decree which was obtained by performing fraud on the court will be considered as nullity and non-est in the eyes of the law. Such a judgment/decree by the primary court or by the highest court has got to be treated as a nullity by every court, whether superior or inferior. It is often challenged in any court even in collateral proceedings.”
The fraud could also 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 also must be actual fraud consisting of representations designed and with an intention to mislead; mere concealment of fact is not sufficient to avoid a foreign judgment.
Foreign Judgment Founded on Breach of Indian Law
When a foreign judgment is founded on a breach of any law that is currently in force in India, it would not be enforced in India. The rules of Private International Law can’t be adopted mechanically and blindly. Each case, which comes before an Indian Court or Indian Judiciary, must be decided following Indian law. It is implicit that foreign law must not offend the general public policy of India. Thus, a foreign judgment that is related to a gaming debt or on a claim, which is barred under the Law of Limitation in India, isn’t conclusive. Similarly, a decree for divorce passed by a foreign court can’t be confirmed by an Indian court if under Indian law the marriage is indissoluble.
It is implicit that the foreign law and foreign judgment would not offend our public policy.
It can easily be concluded by the above-mentioned information that the essential principle which is followed while enforcing a foreign judgment or decree in India is to make sure that the judgment or decree should be a conclusive one, passed on the merits of the case and by a higher or superior having competent jurisdiction.