Cross-Border Justice: A Comprehensive Guide to Recognition and Enforcement of Foreign Decrees in India

 The globalization of commerce and increasing cross-border transactions have made the recognition and enforcement of foreign judgments a critical aspect of India's legal framework. The Code of Civil Procedure, 1908 (CPC) provides the primary mechanism through which Indian courts evaluate, recognize, and enforce judicial decisions rendered by foreign courts. This comprehensive system balances international judicial comity with the protection of Indian legal sovereignty and public policy.

Understanding the Foundation: Definitions and Scope

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Article on Recognition and enforcement of foreign divorce decrees in India

 Recognition of foreign divorce decrees in India is a complex legal issue that involves the interplay of private international law, Indian family law, and the concept of comity of nations.

Comity of Nations

Comity of nations is a principle of international law that requires courts to respect and give effect to the judgments and decrees of foreign courts, subject to certain conditions. This principle is based on mutual respect and cooperation between nations and aims to avoid legal conflicts and promote international harmony.

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Whether decree of the foreign court is enforceable even if it does not contain any reason?

 Section 2(9) defines a “judgment” to mean “the statement

given by the Judge of the grounds of a decree or order”. A “decree”, on the other hand, under Section 2(2), means “the formal expression of an adjudication” which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. An order, on the other hand, defined in Section 2(14), means “the formal expression of any decision of a Civil Court which is not a decree”. The CPC consolidates and amends laws relating to the procedure of courts of civil judicature in India. So far as our civil courts are

concerned, the code makes a clear distinction between a judgment, on the

one hand, and a decree or order, on the other. The latter two are formal

expressions of adjudication or decision of civil courts, whereas the former, a

judgment, is a statement of the grounds of such decree or order given by

the Judge. In so far, however, as judgments of reciprocating territories or

foreign judgments are concerned, the expression “decree” is defined under

Section 44A to mean “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 fine or other penalty”. What

is executed under Section 44A is a “decree” of any superior court of a

reciprocating territory and such decree means a decree or judgment of such

court as explained in Explanation II of Section 44A. In other words, so far

as execution of foreign decrees is concerned, the Code does not make any

distinction between a “decree” and a “judgment”. Any adjudication by a

foreign court upon a matter before it, including a formal expression of such

adjudication, is executable under Section 44A. This much appears from a

plain reading of the relevant provisions of the CPC. {Para 11}

12 Privy Council in the case of Brijlal Ramjidas vs. Govindram G. Seksaria AIR 1947 PRIVY COUNCIL 192 held that a “judgment” within the meaning of Section 13 of the

CPC meant “an adjudication by a foreign court upon the matter before it” and not a statement of reasons for the order. Authorities cited by Mr.Sakhardande for the proposition that in order to constitute a judgment, the order must contain reasons (Balraj Taneja vs. Sunil Madan (1999) 8 SCC 396 and Assistant Commissioner vs. Shukla and Bros. (2010) 4 SCC 785) are quite beside the point, since they do not deal with foreign judgments, but with judgments rendered by civil courts in India.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

APPEAL NO. 14 OF 2020

Arvind Jeram Kotecha Vs  Prabhudas Damodar Kotecha ..

CORAM : S.C. GUPTE & MADHAV JAMDAR, JJ.

PRONOUNCED ON : 9 NOVEMBER 2020

JUDGMENT (Per S.C. Gupte, J.) :

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