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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Supreme Court: Foreign decree should be executed in India as per limitation period of the foreign country

"What is the limitation for filing an application for execution of a foreign decree of a reciprocating country in India?" is the short but interesting question which arises for decision in this case.

 We clarify that for the purpose of this judgment we have used the expressions, "cause country" which will mean the country in which the decree was issued (in this case England), and "forum country" which would mean the country in which the decree is sought to be executed (in this case India).

The view worldwide appears to be that the limitation law of the cause country should be applied even in the forum country. Furthermore, we are of the view that in those cases where the remedy stands extinguished in the cause country it virtually extinguishes the right of the decree-holder to execute the decree and creates a corresponding right in the judgment debtor to challenge the execution of the decree. These are substantive rights and cannot be termed to be procedural. As India becomes a global player in the international business arena, it cannot be one of the few countries where the law of limitation is considered entirely procedural.

 The view worldwide appears to be that the limitation law of the cause country should be applied even in the forum country. Furthermore, we are of the view that in those cases where the remedy stands extinguished in the cause country it virtually extinguishes the right of the decree-holder to execute the decree and creates a corresponding right in the judgment debtor to challenge the execution of the decree. These are substantive rights and cannot be termed to be procedural. As India becomes a global player in the international business arena, it cannot be one of the few countries where the law of limitation is considered entirely procedural.

34. We have already clearly indicated that if the law of a forum country is silent with regard to the limitation prescribed for execution of a foreign decree then the limitation of the cause country would apply.

35. We answer question No. 2 by holding that the limitation period for executing a decree passed by a foreign court (from reciprocating country) in India will be the limitation prescribed in the reciprocating foreign country. Obviously this will be subject to the decree being executable in terms of Section 13 of the Code of Civil Procedure.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2175 of 2020 

Decided On: 17.03.2020

Bank of Baroda  Vs. Kotak Mahindra Bank Ltd.

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

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Whether interlocutory order passed by foreign court is enforceable in India?

The principles of comity of nation demand us to respect the order of
English Court. Even in regard to an interlocutory order, Indian Courts
have to give due weight to such order unless it falls under any of the
exceptions under Section 13 of the CPC. Hence we feel that the order in
the present case passed by the English Court does not fall under any of
the exceptions to Section 13 of the CPC and it is a conclusive one. The
contention of the appellant that the order is the one not on merits
deserves no consideration and therefore liable to be rejected.
Accordingly, Issue No. 1 is answered.
19. In re Issue No. 2 — The next ground put forth by the appellant is that
the order being an interlocutory order does not have the shades of a
‘judgment’ to be executed before the Indian Court and hence the order
not being a ‘decree’ is in executable. To appreciate this, it is appropriate
to have a look at Section 44A of CPC
44A. Execution of decrees passed by Courts in
reciprocating territory—
(1) Where a certified copy of decree of any of the superior
Courts 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, be conclusive proof of
the extent of such satisfaction or adjustment.
(3) The provisions of section 47 shall as 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 is 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 purposes of
this section; and "superior Courts", 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 to 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.
20. As far as the explanation with regard to reciprocal territory is concerned,
there is no dispute that England is a reciprocating territory for the
purpose of above Section. Section 44A of CPC indicates an independent
right conferred on a foreign decree holder for enforcement of a
Decree/Order in India. Section 44A was inserted by Section 2 of the Civil
Procedure Code (Amendment) Act, 1937 (Act No. 8 of 1937). This Section
is meant to give effect to the policy contained in the Foreign Judgments
(Reciprocal Enforcement) Act, 1933. It is a part of the arrangement
under which on one part decrees of Indian Courts are made executable
in United Kingdom and on the other part, decrees of Courts in the
United Kingdom and other notified parts of Her Majesty’s dominions are
made executable in India. It is to be seen that as United Kingdom is a
reciprocating territory and the High Court of Justice, Chancery Division,
England being a recognized superior Court in England. Therefore, the
order passed by that Court is executable in India under Section 44A of
the CPC. Now we come to the next limb of the argument put forth by the
appellant that the order passed by the English Court does not amount to
a decree and hence it is not executable. It is no doubt correct, Section
44A of CPC deals with “execution of decrees passed by Courts in
reciprocating territory”. Before we further decide this issue it is
appropriate to have a look at how decree, order and foreign judgment are
defined under the CPC.
21. As per Section 2(2) of the CPC, "decree" 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 and may be either preliminary
or final. It shall be deemed to include the rejection of a plaint and the
determination of any question within Section 144 of CPC but shall not
include (a) any adjudication from which an appeal lies as an appeal from
an order, or (b) any order of dismissal for default.
Then a “foreign judgment” is defined under Section 2(6) as
judgment of a foreign Court. “Judgment” as per Section 2(9) of C.P.C.
means the statement given by the Judge on the grounds of a decree or
order. Order is defined under Section 2(14) of CPC as a formal
expression of any decision of the Civil Court which is not a ‘decree’. Then
Explanation 2 to Section 44A (3) says "decree" with reference to a
superior Court means any ‘decree’ or ‘judgment’. As per the plain reading
of the definition ‘Judgment’ means the statement given by the Judge on
the grounds of decree or order and order is a formal expression of a
Court. Thus “decree” includes judgment and “judgment” includes
“order”. On conjoint reading of ‘decree’, ‘judgment’ and ‘order’ from any
angle, the order passed by the English Court falls within the definition of
‘Order’ and therefore, it is a judgment and thus becomes a “decree” as
per Explanation to Section 44A(3) of CPC. In this case, the Court at
England, after following the principles of natural justice, by recording
reasons and very importantly basing on the application of the appellant
itself, has conclusively decided the issue with regard to jurisdiction
and passed the order coupled with costs. Hence in our considered
opinion, the order passed by the Foreign Court is conclusive in that
respect and on merits. Hence executable as a decree and accordingly the
issue is answered.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10106 OF 2016
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 19791 OF 2013
M/S ALCON ELECTRONICS PVT. LTD
V
CELEM S.A. OF FOS 34320 ROUJAN, FRANCE & ANR. 
Dated:DECEMBER 09, 2016
Citation:(2017) 2 SCC253

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