Introduction

• A foreign Judgement means an adjudication by a foreign court upon a matter before it.
• The Judgement of a foreign court is enforced on the principle that where a court of competent jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim.

Foreign Judgement

• Section 2(6) of the Code of Civil Procedure, 1908 (CPC) defines foreign Judgement. It states that foreign Judgement means the Judgement of a foreign Court.
• As per Section 2(5) of CPC, a foreign Court means a Court situated outside India and not established or continued by the authority of the Central Government.

Foreign Judgement When Not Conclusive

• Section 13 of CPC states that a foreign Judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom 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 been 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 recognize the law of India in cases in which such law is applicable;
  • (d) where the proceedings in which the Judgement 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.
• This section provides that a foreign Judgement may operate as res judicata except in the aforementioned six clauses.

(a) Foreign Judgement Not by a Competent Court

• A Judgement of a foreign court to be conclusive between the parties must be a Judgement pronounced by a court of competent jurisdiction.
  • A competent court implies a court having jurisdiction over the parties and the subject matter.
• The court of a foreign country has jurisdiction in the following cases:
  • Where at the time of the commencement of the action the defendant was resident or present in such country, so as to have the benefit and be under the protection of laws.
  • Where the defendant is at the time of the Judgement in action, subject or citizen of such country.
  • Where the party objecting to the jurisdiction of the courts of such country has by his own conduct, submitted to such jurisdiction by
    • Appearing as plaintiff in the action or counterclaiming, or
    • Voluntarily appearing as defendant in such action, or
    • Having expressly or impliedly contracted to submit to the jurisdiction of such courts.
• In the case of Bharat Nidhi Limited v. Megh Raj Mahajan (1964), it was held that a foreign Judgement has to be passed only by a foreign court of competent jurisdiction to operate as res judicata in the Indian courts.

(b) Foreign Judgement Not on Merits

• In order to be conclusive, the foreign Judgement must be on the merits i.e., which involves the application of the mind of the court to the truth or falsity of the case.
• The Actual test for deciding whether the Judgement has been given on merits or not is to see whether it was merely passed as a matter of course, or by way of penalty of any conduct of the defendant or is based upon a consideration of the truth or falsity of the plaintiff's claim.

(c) Foreign Judgement Against Indian or International Law

• A Judgement based upon an incorrect view of international law or a refusal to recognize law of India where such law is applicable is not conclusive.
• The mistake must be apparent on the face of the proceeding.

(d) Foreign Judgement Opposed to Natural Justice

• The Judgement must observe the minimum requirements of natural justice, that is it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case.
  • It may be noted that the mere fact that the foreign court did not follow the procedure of Indian courts will not invalidate a foreign Judgement on the ground of proceedings being opposed to natural justice.
• In the case of Sankaran v. Lakshmi (1974), the Supreme Court held that the expression natural justice relates to the irregularities in procedure rather than to the merits of the case.

(e) Foreign Judgement Obtained by Fraud

• It is a well settled principle of Private International Law that if foreign Judgements are obtained by fraud, it will not operate as res judicata.
  • Fraud in any case, bearing on jurisdictional facts, vitiates all judicial acts.
  • The fraud may be either fraud on the party invalidating a foreign Judgement in whose favor the Judgement is given or fraud on the court pronouncing the Judgement.
• In the case of Satya v. Teja Singh (1975), the Supreme Court held that the plaintiff had misled the foreign court as to its having jurisdiction over the matter, although it could not have had the jurisdiction, the Judgement and decree was obtained by fraud and hence inconclusive.

(f) Foreign Judgement founded on Breach of Indian Law

• Section 13(f) does not require that the procedure of the foreign court should be identical with or similar to the procedure of the courts in India.
• However, when a foreign Judgement is founded on a breach of any law in force in India, it would not be enforced in India.

Presumption as to Foreign Judgements

Section 14 states that the Court shall presume upon the production of any document purporting to be a certified copy of a foreign Judgement, that such Judgement 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.