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

Print Page

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.) :

Print Page

Whether Indian court should refuse to execute foreign decree due to practical difficulties?

 It is to the reciprocal advantage of the Courts of all nations to enforce
foreign rights as far as practicable. To this end, broad recognition of
substantive rights should not be defeated by some vague assumed
limitations of the Court. When substantive rights are so bound up in a
foreign remedy, the refusal to adopt the remedy would substantially
deprive parties of their rights. The necessity of maintaining the foreign
rights outweighs the practical difficulties involved in applying the foreign remedy. 

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10106 OF 2016

M/S ALCON ELECTRONICS PVT. LTD
V
CELEM S.A. OF FOS 34320 ROUJAN, FRANCE & ANR. 
Dated:DECEMBER 09, 2016
Citation:(2017) 2 SCC 253

Print Page

Whether Indian court can execute foreign decree for interest on costs?

 In re Issue No. 5 — It is the case of the appellant that the claim for
interest on costs is not recognized in the Indian law. It is to be noted that
matters of procedure are to be governed by the lex fori, whereas the
matters of the substance are governed by lex causae. In this case, the
question whether the interest on sum of decree of costs to be executed in
India is a matter of substance as the interest on decree is a substantive
right of the decree holder and does not concern itself with the procedural
law of the forum.
32. The appellant relied upon Section 35 of the CPC which enables Courts in
India to impose litigation costs at the discretion of the Court. However,
there is no provision under the CPC or the Interest Act, 1978 which

permits imposition of interest on litigation costs.

In India, although the interest on costs are not available due to
exclusion of Section 35(3), the same does not mean that Indian Courts
are powerless to execute the decree for interest on costs. Indian Courts
are very much entitled to address the issue for execution of the interest
amount. The right to 8% interest as per the Judgments Act, 1838 of UK
can be recognized and as well as implemented in India.

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

Print Page

When it is not permissible for executing court to make enquiry about validity and legality of foreign judgment?

It appears that the appellant herein has accepted the order and sought
for time to pay the costs. Moreover, it did not choose to approach the
appellate Court assailing the order and the same has attained finality. In
spite of the same, the appellant filed the application opposing the
execution petition filed by the respondents. The first and foremost
ground of attack against the order passed by the English Court is that
the order is not conclusive as per Section 13(b), CPC. Such argument
appears to be attractive but we are not able to appreciate the same in the
facts and circumstances of the case. Before we proceed further, it is
appropriate to have a look at Sections 13 and 14 of CPC which read as
under:
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 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 recognise the law of India in cases in which such
law is applicable;
(d) where the proceedings in which the 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.
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.
13. A plain reading of Section 13, CPC would show that to be conclusive an
order or decree must have been obtained after following the due judicial
process by giving reasonable notice and opportunity to all the proper and
necessary parties to put forth their case. When once these requirements
are fulfilled, the executing Court cannot enquire into the validity, legality

or otherwise of the judgment.

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

Print Page

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

Print Page

How to decide dispute of custody of child who is foreign citizen?

(iii) The Hon'ble Supreme Court in Surya Vadanan v. State of T.N, reported in (2015) 5 SCC 450 has held as follows :
"48. Therefore, we are concerned with two principles in a case such as the present. They are:
(i) the principle of comity of courts; and
(ii) the principle of the best interests and the welfare of the child.
These principles have been referred to as contrasting principles of law" (Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591) but they are not contrasting in the sense of one being the opposite of the other but they are contrasting in the sense of being different principles that need to be applied in the facts of a given case.
49. What then are some of the key circumstances and factors to be taken into consideration for reaching this final goal or final objective? First, it must be appreciated that the most intimate contact doctrine and the closest concern doctrine of Surinder Kaur Sandhu (Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698) are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. It is not appropriate that a domestic court having much less intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child. A foreign court having the most intimate contact and the closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up rather than a domestic court. This is a factor that must be kept in mind.
50. Second, there is no reason why the principle of comity of courts should be jettisoned, except for special and compelling reasons. This is more so in a case where only an interim or an interlocutory order has been passed by a foreign court (as in the present case). In McKee (McKee v. McKee, 1951 AC 352) which has been referred to in several decisions of this Court, the Judicial Committee of the Privy Council was not dealing with an interim or an interlocutory order but a final adjudication. The applicable principles are entirely different in such cases. In this appeal, we are not concerned with a final adjudication by a foreign court the principles for dealing with a foreign judgment are laid down in Section 13 of the Code of Civil Procedure.21 In passing an interim or an interlocutory order, a foreign court is as capable of making a prima facie fair adjudication as any domestic court and there is no reason to undermine its competence or capability. If the principle of comity of courts is accepted, and it has been so accepted by this Court, we must give due respect even to such orders passed by a foreign court. The High Court misdirected itself by looking at the issue as a matter of legal rights of the parties. Actually, the issue is of the legal obligations of the parties, in the context of the order passed by the foreign court."


24.  Here in this case on hand, the minor child is a Citizen of USA by birth. He came to India with his parents in November 2009 and returned to USA with his father, as agreed by the mother. When the child was again brought to India for temple visit in August 2011, that is after about 2 years, the child was virtually snatched from the appellant by the respondent with the help of police. The child, being citizen of USA, the Superior Court of California is having most intimating contact and the closest concern. Even as per the principle of Comity of Courts, the order of the Superior Court of California is to be respected. 

25. The learned counsel for the respondent submits that the respondent being mother, got Overseas Citizen of India visa (OCI) for the child. Detaining the child in India and obtaining OCI visa by the respondent are only fortuitous circumstances and these do not confer any jurisdiction to the Courts here.
26. The Court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. 
27. Even while considering the interest of the minor child, this Court is of the view that due respect is to be given to the orders of the USA Court, as the USA Court has the most intimate contact with the issue involving the custody of the minor child, who is a citizen of USA. Therefore, the argument of the learned counsel for the respondent that the Foreign Court is not having competent jurisdiction is not sustainable. Therefore, as per Section 13 of the Code of Civil Procedure, the order of the Superior Court of California is to be construed as conclusive between the appellant and the respondent as to the custody of the minor child and binding upon the parties. 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated :  25.07.2016

CORAM:

MR.JUSTICE A.SELVAM
and 
 MR.JUSTICE P.KALAIYARASAN

O.S.A.Nos.249 and 250 of 2015
M.P.Nos.2 to 4 of 2015
and M.P.No.1 of 2015

P.K.Srikumar

Vs.

Harshitha Gopinathan       
Citation:AIR 2016 Madras 187

Print Page

When foreign judgment would not be conclusive in India?

 A judgment under Section 41 of a Court in its testamentary and intestate jurisdiction granting probate of a will in India would certainly be conclusive proof of the legal character that it confers or the entitlement of the person that it declares or the legal character which it takes away or the entitlement of the property of any person that it declares.

8. However a judgment stated to be a probate granted by a foreign Court would come within the purview of section 13 of the CPC as any other foreign judgment. Section 13 applies to judgments in rem as well as personam. Section 13 reads thus :

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 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 recognise the law of [India] in cases in which such law is applicable; (d) where the proceedings in which the 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].

Hence a foreign judgment would not be conclusive if it refuses to recognise the applicable law of India or is in breach of any law in force in India and is consequently hit by clause 13(c) or (f).

Bombay High Court

Dr. Devika Damji Shah vs Rashmi Mukesh Shah & Anr on 27 July, 2012

Bench: R. S. Dalvi

Print Page