EXECUTABILITY & ENFORCEABILITY OF FOREIGN

JUDGMENTS AND DECREES IN INDIA: AN

ANALYSIS OF JUDICIAL TRENDS
Dr. Rupam Jagota1

I. Introduction
The liberalization of Indian Economy and globalization of business
activities, is paving a way in for free flow of foreign capital/ funds in India.
Also, Indian Companies are investing in foreign companies/ countries. With
this India is perched to be a major international and global player in the
world economy. There is an advent of a large number of International
Contracts being signed involving parties of different geographical origins
and subjects of different jurisdictions. Substantial International Contracts,
incorporate a provisions for settlement of disputes between the parties
through Arbitration at international level or through the adjudication of
disputes by the foreign courts.
Enforceability of judgments and awards passed by the Foreign
Courts (courts located outside the politico geographical boundary of a
country) is a twilight zone of International Law and involves complex issues
of law. There are numerous impediments in the enforceability of foreign
awards and judgments, Sovereignty of nations being the perilous and
another may be absence of a strong enforcement mechanism/ authority/
body.
However, even after exercise of jurisdiction, the courts may be
unable to help a party in getting relief. The biggest reason for such failure
being local laws of the country concerned where the judgment is being
enforced have certain restrictions for the execution/enforcement of foreign
judgments or decrees or award in the Country.
Number of citizens of India with different personal laws have
migrated and are migrating to different countries either to make their
permanent abode there or for temporary residence. There is also immigration
of the nationals of other countries. It is also not unusual to come across cases
where citizens of India have been contracting marriages either in India or
abroad with nationals of the other countries or among themselves, or having
married here, either both or one of them migrate to other countries.

1
Sr. Assistant Professor, School of Legal Studies, G.N.D.U. Regional Campus,
Jalandhar and Praisy Chanana [B.A., LL.B. (Hons.) FYIC], Manager Legal in a
MNC.

15
 There are cases where parties having married here have been either
domiciled or residing separately in different foreign countries. This
migration, temporary or permanent, has also been giving rise to various
kinds of matrimonial disputes destroying in its turn the family and its peace2.
Abandoned bride in distress due to runaway foreign country resident
Indian spouse, desperate parent seeking child support and maintenance, non-
resident spouse seeking enforcement of foreign divorce decree in India,
foreign adoptive parents desperately trying to resolve Indian legal
formalities for adopting a child in India, officials of a foreign High
Commission trying to understand the customary practices of marriage and
divorce exclusively saved by Indian legislation: these are some instances of
problems arising every day from cross-border migration.
There are a large number of legal issues that concern a sizeable
section of the Global Indian Community residing abroad. Though the non-
resident Indians have increased multifold in foreign jurisdictions, family law
disputes and situations are handicapped for want of proper professional
information and advice on Indian laws. The problems created by such
migration largely remain unresolved. There are a plethora of problems in
matters concerning succession and transfer of property, conditions of
validity of marriages solemnized in India, modes and means of divorce
under Indian law, legal formalities to be complied with for adopting children
from India, banking affairs, taxation issues, execution and implementation
of wills and other commercial propositions for non-resident Indians.
However, application of multiple laws, their judicial interpretation and other
legalities often leave the problems unresolved even though remedies
partially exist in Indian law and partly need new urgent legislation.
The number of non-resident Indians (NRI) has multiplied in every
jurisdiction abroad. With his return the NRI seeks a remedy for his legal
problem connected with his temporary or permanent return to India. This
invariably makes the NRI import the foreign law of the overseas jurisdiction
from where he has migrated. Such a situation is created because either
Indian law provides him no remedy or because he finds it easier and quicker
to import a foreign court judgment to India on the basis of alien law which
has no parallel in the Indian jurisdiction. This clash of jurisdictional law is
commonly called Conflict of Laws in the realm of Private International Law
which is not yet a developed jurisprudence in the Indian territory.

2
Y. Narasimha Rao vs. Y. Venkata Lakshmi, JT 1991 (3) SC 33

16
II. Difficulties Faced Under Indian Law
Areas of family law in which the problems of jurisdiction are seen
occurring very frequently relate to dissolution of marriage, inter-parental
child abduction, inter country child adoption and succession of property of
non-resident Indians. In matters of divorce, since irretrievable breakdown of
marriage is not a ground for dissolving the marriage under Indian law,
Indian Courts in principle do not recognize foreign matrimonial judgments
dissolving marriage by such breakdown. Surprisingly, even very little help is
available in areas of matrimonial offences, leaving a helpless deserted Indian
spouse on Indian shores confronted with a matrimonial litigation of a foreign
court which he or she neither has the means or ability to invoke often results
in despair, frustration and disgust. Likewise, enforcement of a foreign court
order in whose violation a child of the family has been removed and brought
to Indian soil brings a parent to India seeking a legal remedy.
Unfortunately, no special Indian legislation exists to combat such
problems and provide certain remedies. The numbers of Indians on foreign
shores have increased multifold but the multiple problems which bring them
back to India are still left to be resolved by the conventional Indian
legislation. Times have changed but laws have not. However, the dynamic,
progressive and open minded judicial system in the Indian Jurisprudence
often comes to the rescue of such problems by interpreting the existing laws
with a practical application to the new generation problems of immigrant
Indians. Fortunately, judicial legislation is the only option/ crutch available.
Vide this research paper/ article, let us aim to study the binding
nature of the foreign judgments in consistency with the nature, scope and
object of section 13 of The Code of Civil Procedure, 1908 (as amended from
time to time) (“CPC”). Also let us analyze the conditions under which the
judgments given by any foreign court creates the rule of estoppel or res-
judicata.
The "recognition" of a foreign judgment occurs when the court of
one country or jurisdiction accepts a judicial decision made by the courts of
another "foreign" country or jurisdiction, and issues a judgment in
substantially identical terms without rehearing the substance of the original
lawsuit. Recognition will be generally denied if the judgment is
substantively incompatible with basic legal principles in the recognizing
country.
For the purpose of brevity let us first glance through the bare
provisions under the CPC governing the execution of Foreign Judgments in
India.

17
 "Foreign Court3" is “a Court situated outside India and not
established or constituted by the authority of the Central Government”.
"Foreign Judgment4" is a judgment of a Foreign Court.

When Foreign Judgment not Conclusive5:

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 litigation 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 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.

Presumption as to foreign judgments6:

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.

Court in which suits to be instituted7:

Every suit shall be instituted in the Court of the lowest grade
competent to try it.

3
Section 2(5) of The Code of Civil Procedure, 1908
4
Section 2(6) of The Code of Civil Procedure, 1908
5
Section 13 of The Code of Civil Procedure, 1908
6
Section 14 of The Code of Civil Procedure, 1908
7
Section 15 of The Code of Civil Procedure, 1908

18
Execution of decrees passed by Courts in reciprocating territory8:
(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.

III. Enforcing Foreign Judgments in India

A foreign judgment can be enforced in India in one of two ways:
1. Judgments from Courts in "reciprocating territories": By filing an
execution petition under Section 44A of the CPC- Judgments from
Courts in ‘reciprocating territories’ can be enforced directly by
filing before the Indian Court an execution decree.
A reciprocating territory9 is defined as “any country or territory
outside India which the Central Government may, by notification in the

8
Section 44A of The Code of Civil Procedure, 1908
9
Explanation 1, Section 44A of The Code of Civil Procedure, 1908

19
Official Gazette, declare to be a reciprocating territory and "Superior
Courts", with reference to any such territory, means such Courts as may be
specified in the said notification.. Till date only eleven countries have been
notified10 as Reciprocating Territories under the provisions of Section 44A
of the CPC.
In N.P.A.K. Muthiah Chettiar and Ors. Vs. K.S. Rm. Firm Shwebo,
Burma and Ors11., The Hon’ble High Court of Madras observed that with
respect to decrees of a reciprocating territory contemplated in the
explanation to Section 44-A no fresh suit is necessary but the same can be
executed by the application of the provisions of Section 47, of CPC. The
distinction that has to be borne in mind is that reciprocating territories enjoy
greater privilege regarding execution of decrees of their superior Courts in
our country than are enjoyed by the non-reciprocating territories.
In Kevin George Vaz Vs. Cotton Textiles Exports Promotion
Council12, the Hon’ble High Court of Bombay clarified the above discussed
position of the Indian Legal System vis-à-vis Foreign Awards from
Reciprocating and Non-Reciprocating territories of India. The Hon’ble
Court observed and propounded that it is pertinent to highlight that
reciprocity is a bilateral arrangement. All the reciprocating territories of

10
Following have been notified as Reciprocating Territory and Superior Court
i. On 3.1.56, Federation of Malaya (now Malaysia) and the High Court and the
Courts of Appeal as the Superior Court
ii. On 18.1.56, Colony of Aden and Supreme Court of Aden as the superior Court
iii. On 15.10.1957, New Zealand and Cook Islands, Trust Territory of Western
Samoa and the Supreme Court of New Zealand as the Superior Court
iv. On 21.1.1961, Sikkim and the High court of Sikkim or any other court whose
jurisdiction is not limited to a pecuniary jurisdiction.
v. On 15.7.1961, Burma all civil and revenue courts as Superior Courts.
vi. On 1.3.53, United Kingdom of Great Britain and Northern Ireland and the
House of Lords, Court of Appeals, High Court of England, the Court of
Sessions in Scotland, the High court in Northern Ireland, the Court of
Chancery of the County Palatine or Lancaster and the Court of Chancery of
the County Palatine or Durham as the Superior Courts.
vii. On 22.3.54, Colony of Fiji and the Supreme Court of Fiji as the Superior Court
viii. On 23.11.68, Hong Kong and republic of Singapore
ix. On 1.9.66, Trinidad and Tobago
x. On 26.9.70, Papua New Guinea and Supreme Court as the superior court
xi. On 6.3.76, Bangladesh and Supreme Court and Courts of District and
subordinate judges as the Superior Court.
xii. Canada and the Supreme Court of Ontario, please see the decision in the case
of Gurdas Mann Vs. Mohinder Singh, AIR 1993 P&H 92.
11
AIR1957Mad. 25
12
2006 (5) BOMCR 555

20
India mutually agree to enforce court orders passed by the Indian Courts in
their country as well.
2. Judgments from "non-reciprocating territories: By Filing a suit
upon foreign judgment or decree- Judgments from the non-
reciprocating territories, can be enforced only by filing a law suit in
an Indian Court for a judgment based on the foreign judgment. The
foreign Judgment is considered evidentiary. The time limit to file
such a law suit is within 3 years from date of pronouncement of
foreign judgment.
However, in both cases the judgment has to pass the test of
section 13 of CPC which specifies certain exceptions under which the
foreign judgment becomes inconclusive and therefore not executable or
enforceable in India.

IV. The Proving Ground/ Substantiation - Section 13 of the Code of

Civil Procedure, 1908
A foreign judgment operates as res judicata except for the
exceptions as specified in the Section 13 of CPC and subject to the other
conditions mentioned in Sec. 11 of CPC. The rules laid down in this section
are rules of substantive law recognizing conclusiveness of a foreign
judgment and not merely rules of procedure13. The judgment 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. Such recognition is accorded not as an act of courtesy but on
considerations of justice, equity and good conscience14. Awareness of
foreign law in a parallel jurisdiction would be a useful guideline in
determining our notions of justice and public policy. We are sovereign
within our territory but “it is no derogation of sovereignty to take account of
foreign law15”.
The present paper sets sight on to discuss decisions of various
courts in India including the Hon’ble Supreme Court of India, various
High Courts and other Courts in order to analyze the law on the point and
to highlight an inclusive view of the courts.
1. Where it has not been pronounced by a Court of competent
jurisdiction:
A fundamental principle of law, that a judgment or order passed by
a court, which lacks/ has no jurisdiction, is null and void. Thus, a judgment
13
Dr. Padmini Mishra Vs. Dr. Ramesh Chandra Mishra, 1990 70 Cut. LT 673
14
Satya Vs. Teja Singh, (1975) 1 SCC 120.
15
Badat & Co. Vs. East India Trading Co., AIR 1964 SC 552

21
of a foreign court to be conclusive and enforceable in India must be a
judgment pronounced by a court of competent jurisdiction16.
For the purpose of brevity we shall analyze both sides of the coin i.e
where the judgment pronounced was held to be by a court of competent
jurisdiction and where it was held to be inconclusive as was pronounced by
a court lacking jurisdiction.
In the case of Moloji Nar Singh Rao vs. Shankar Saran17, decided by
a Constitutional Bench of Hon’ble Supreme Court of India comprising of 5
judges, where a suit was filed by the plaintiff in a foreign Court for recovery
of some money against the defendants. The Defendants did not appear
despite service of the writ of summons. The suit thereafter was proceeded
exparte against the defendants. The claim was decreed. The decree was
brought to the local court for execution. The matter came up before the
Supreme Court of India to discuss the major issue which “what conditions
are necessary for giving jurisdiction to a foreign court before a foreign
judgment is regarded as having extra-territorial validity.” The Supreme
Court in order to answer this issue relied upon the Halsbury’s Laws of
England Vol. III p. 144 para 257 (3rd Edition) and held that none of those
conditions were satisfied in the present case. The Court while applying those
conditions observed that:
(a) The respondents (defendants) were not the subjects of Gwalior
(foreign country18).
(b) They did not owe any allegiance to the Ruler of Gwalior and
therefore they were under no obligation to accept the judgments of
the Courts of that state.
(c) They were not residents in that state when the suit was instituted.
(d) They were not temporarily present in that State when the process
was served on them.
(e) They did not in their character as plaintiffs in the foreign action
themselves select the forum where the judgment was given against
them
(f) They did not voluntarily appear in that court.

16
Vishwanathan Vs Abdul Wajid, AIR 1963 SC 1. (1450).
17
AIR 1962 SC 1737.
18
It is necessary to deal with the various Statutes, Orders and agreements as a
result of which the erstwhile Indian State of Gwalior became a part of the
territories of the Union of India governed by one Civil Procedural law. So
Gwalior is termed to be Foreign Country.

22
 (g) They had not contracted to submit to the jurisdiction of the foreign
court.
Therefore the Supreme Court held that the foreign decree was null
and void and could not be executed in the local courts.
In the case of Sirdar Gurdial Singh Vs. Maharaja of Faridkot19, it
was held by the Privy Council that:
“A decree pronounced in absentem by a foreign Court to the
jurisdiction of which the defendant has not in any way
submitted himself is by international law an absolute nullity.
He is under no obligation of any kind to obey it, and it must
be regarded as a mere nullity, by the Courts or every nation
except (when authorized by special local legislation) in the
country of the forum by which it was pronounced.”20
In the case of R.M.V. Vellachi Achi Vs. R.M.A. Ramanathan
Chettiar21, it was alleged by the respondent that since he was not a subject of
the foreign country, and that he had not submitted to the jurisdiction of the
Foreign Court (Singapore Court), the decree could not be executed in India.
The Appellant, in defense of this argument, stated that the Respondent was a
partner of a firm which was doing business in Singapore and had instituted
various suits in the Singapore Courts. Therefore, the Appellant argued, that
the Respondent had accepted the Singapore Courts jurisdiction. The Court
held that it was the firm which had accepted the jurisdiction of the foreign
Court and the Respondent, in an individual capacity, had not accepted the
jurisdiction. This was one of the reasons for which the High Court held that
the decree against the Respondent was not executable.
In the case of Narappa Naicken Vs. Govindaraju Naicken22, it was
held that failing in an action to set aside a foreign decree in the foreign
Courts does not amount to submission to jurisdiction, however, in case the
decree is set aside and the party is allowed to plead and a new decree is
passed then the defendant would be deemed to have submitted to the
jurisdiction of the foreign court.
It was held in the case of Thirunavakkaru Pandaram Vs
Parasurama Ayyar23, that if a party has once appeared before a foreign court
in the character of the plaintiff, it does not mean that he is forever afterwards
to be regarded as having submitted to the jurisdiction of the foreign court in

19
(1895) 22 cal 222 (PC): 21 IA 171.
20
Ibid.
21
AIR 1973 Mad. 141.
22
AIR 1934 Mad. 434.
23
AIR 1937 Mad. 97 at p. 99.

23
any subsequent action, by any person or upon any cause of action, which
may be brought against him.
The Supreme Court in the case of Shalig Ram Vs. Firm Daulatram
Kundanmal24, held that filing of an application for leave to defend a
summary suit in a foreign court amounted to voluntary submission to the
jurisdiction of the foreign Court.
In the case of British India Steam Navigation Co. Ltd. Vs.
Shanmughavilas Cashew Industries Ltd.25 the Supreme Court held that even
though the defendant had taken the plea of lack of jurisdiction before the
trial Court but did not take the plea before the Appeal Court or in the Special
Leave Petition before the Supreme Court, it amounted to submission to
jurisdiction.
In the case of Satya v. Teja26, while dealing with a matrimonial
dispute, the Supreme Court held that the challenge under S. 13 was not
limited to civil disputes alone but could also be taken in criminal
proceedings. In this case a foreign decree of divorce obtained by the
husband from the Nevada State Court in USA in absentum of the wife
without her submitting to its jurisdiction was held to be not binding and
valid upon a criminal court in proceedings for maintenance.27
Reasoned scrutiny of the decisions mentioned above leads us to a
conclusion that in actions-in-personam, judgment passed by a Foreign Court
an Indian defendant, be enforceable against such a defendant in India, only
if the judgment satisfies the conditions laid down by the Hon’ble Supreme
Court in Moloji Nar Singh Rao Vs. Shankar Saran28 (mentioned above)
2. Where it has not been given on the merits of the case:
A judgment is said to have been given on merits when, after taking
evidence and after applying his mind regarding the truth or falsity of the
plaintiff’s case, the Judge decides the case one way or the other. The mere
fact of a decree being ex parte will not necessarily justify a finding that it
was not on merits29.
In order to operate as res-judicata, a foreign judgment must have
been given on merits of the case.

24
AIR 1967 SC 739. This view was followed by the Supreme Court in the case of
Lalji Ram and Sons Vs. Firm Hansraj Nathuram, AIR 1971 SC 974.
25
(1990)3 SCC 481 at p. 495.
26
AIR 1975 SC 105.
27
Ibid. at p. 117 para 49.
28
AIR 1962 SC 1737.
29
Lalji Vs. Hansraj, (1971) 1 SCC 721 (726)

24
 When a suit is dismissed for default of appearance of the plaintiff;
or for 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 default of defendant in furnishing security, or after
refusing leave to defend, such judgments are not on merits30.
D.T. Keymer Vs. P. Viswanatham.31 A decision pronounced by Privy
Council where, a suit for money was brought in the English Courts against
the defendant as partner of a certain firm, wherein the latter denied that he
was a partner and also that any money was due. Thereupon the defendant
was served with certain interrogatories to be answered. On his omission to
answer them his defence was struck off and judgment entered in the favour
of the plaintiff. When the judgment was sought to be enforced in India, the
defendant raised the objection that the judgment had not been rendered on
the merits of the case and hence was not conclusive under the meaning of S.
13(b) of CPC. The matter reached the Privy Council, where the Court held
that since the defendant’s defence was struck down and it was treated as if
the defendant had not defended the claim and the claim of the plaintiff was
not investigated into, the decision was not conclusive in the meaning of S.
13(b) and therefore, could not be enforced in India.
Mahomed Kassim & Co. Vs. Seeni Pakir-bin Ahmed32 a decision by
a full bench of the Madras High Court wherein the Bench relied upon the
decision of Privy Council in the aforesaid case and held that a decree
obtained on default of appearance of the defendant without any trial on
evidence is a case where the judgment must be held not to have been on the
merits of the case.33 In the obiter dictum the Court observed that in a case
where there was default in appearance, but however the claim of the plaintiff
was tried in full on evidence and the plaintiff proved his case, the decision
may be treated as a judgment on the merits of the case
In the case of Gurdas Mann Vs. Mohinder Singh Brar34, the Punjab
& Haryana High Court held that an exparte judgment and decree which did
not show that the plaintiff had led evidence to prove his claim before the
Court, was not executable under S. 13(b) of the CPC since it was not passed
on the merits of the claim.
30
Keymer vs Vishwanathan Reddy, AIR 1916 PC 121.
31
AIR 1916 PC 121.
32
AIR 1927 Mad. 265(FB). See Mallappa Yellappa Bennur vs Raghavendra
Shamrao Deshpande, AIR 1938 Bom. 173 at 177, the Court held that although
under normal circumstances the court does not go into the merits of the case
decided in the foreign court, however, due to S. 13(b) of CPC, the Courts in
India have a right to examine the judgment to see whether it has been given on
the merits.
33
Ibid. at p. 270.
34
AIR 1993 P&H 92.

25
 In the case of R.M.V. Vellachi Achi Vs. R.M.A. Ramanathan
Chettiar35, the Madras High Court held that that the burden of proof for
showing that the execution/enforceability of the judgment or decree was
excepted due to the operation of S. 13 is upon the person resisting the
execution.
In the case of Y. Narsimha Rao Vs. Y. Venkata Lakshmi36, the
Supreme Court while interpreting S. 13(b) of CPC held that the decision
should be a result of the contest between the parties. The latter requirement
is fulfilled only when the respondent is duly served and voluntarily and
unconditionally submits himself/herself to the jurisdiction of the court and
contests the claim, or agrees to the passing of the decree with or without
appearance. The Court further held that a mere filing of the reply to the
claim under protest and without submitting to the jurisdiction of the Court,
or an appearance in the court either in person or through a representative for
objecting to the jurisdiction of the court, should not be considered as a
decision on the merits of the case.37
It was held in M/s International Woollen Mills Vs. M/s Standard
Wool (U.K.) Ltd38. Exparte decree of the foreign Court cannot be presumed
to be on merit by the aid of Section 114(e) of Evidence Act. Where ex parte
judgment passed granting decree for money but nothing indicated whether
any documents were looked into or whether merits of the case considered.
Such judgments will not be enforceable in India.
In Trilochan Choudhury Vs. Dayanidhi Patra39, the defendant
entered appearance in the foreign Court and filed his written Statement.
However, on the appointed day for hearing the defendant’s advocate
withdrew from the suit for want of instructions and also the defendant did
not appear. The defendant was placed exparte. The Court heard the plaintiff
on merits and passed the decree in his favour. The Orissa High court Court
held that the foreign decree and the judgment was passed on the merits of
the claim and was not excepted under S. 13(b) of the CPC.
In Mohammad Abdulla Vs. P.M. Abdul Rahim40, the defendant had
passed on a letter of consent to the plaintiff that the decree may be passed
against him for the suit claim. The Court held that since the defendant
agreed to the passing of the decree against him, the judgment could not be
said to be not on the merits of the claim.

35
AIR 1973 Mad. 141.
36
(1991) 3 SCC 451.
37
Ibid. at p. 461.
38
AIR 2001 SC 2134
39
AIR 1961 Ori. 158.
40
AIR 1985 Mad. 379 at pp. 382 and 383.

26
 In Gajanan Sheshadri Pandharpurkar Vs. Shantabai41, the Bombay
High Court held that the true test for determining whether a decree is passed
on the merits of the claim or not is whether the judgment has been give as a
penalty for any conduct of the defendant or whether it is based on a
consideration of the truth or otherwise of the plaintiff’s case. Since in the
present case, although the defendant was considered to be ex-parte, the
claim of the plaintiff was investigated into, the objection under S. 13(b) was
held to be unsustainable.
Bearing in mind the decisions of the Hon’ble Supreme Court of
India and various High Courts a robust opinion can be drawn that a
judgment or decree passed by a Foreign Court, may not be enforceable in
India, until and unless it can be established that the said judgment was
passed after investigation of, and leading of evidence on the plaintiff’s claim
even if the judgment is passed ex parte.
3. 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:
A judgment based upon an incorrect view of international law or a
refusal to recognize the law of India where such law is applicable is not
conclusive42. But the mistake must be apparent on the face of the
proceedings.
In Gurdayal Singh Vs. Rajah of Faridkot43, it was held by the Privy
Council that where in a suit instituted in England on the basis of a contract
made in India, the English court erroneously applied English law, the
judgment of the court is covered by this clause in as much as it is 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 made
(lex loci contractus).
In Panchapakesa Iyer Vs. K.N. Hussain Muhammad Rowther44,
where the foreign court granted the probate of a will in the favour of the
executors. The property was mostly under the jurisdiction of the foreign
Court, but some of it was in India. the Madras High Court held that the
foreign Court had adopted an incorrect view of International Law, since a
foreign Court does not have jurisdiction over the immovable property
situated in the other Country’s Court’s jurisdiction. Therefore the judgment
was declared to be inconclusive and unenforceable in India

41
AIR 1939 Bom. 374.
42
Vishwanathan VS. Abdul Wajid, AIR 1963 SC 1 (21, 23).
43
(1895) 22 cal 222 (PC)
44
AIR 1934 Mad. 145.

27
 In Narsimha Rao Vs. Venkata Lakshmi45, where a foreign judgment
founded on a jurisdiction or on a ground not recognized by Indian law or
International Law, it was held that it is a judgment which is in defiance of
the law. Hence, it is not conclusive of the matter adjudicated therein and,
therefore, unenforceable in this country.
In I&G Investment Trust Vs. Raja of Khalikote46, a suit was filed in
the English Jurisdiction to avoid the consequences of the Orissa Money
Lenders Act. The Court held that the judgment was passed on an incorrect
view of the International law. The Court further observed that, although the
judgment was based on the averment in the plaint that the Indian law did not
apply, however there was no “refusal” to recognize the local laws by the
Court.47
In Anoop Beniwal Vs. Jagbir Singh Beniwal,48 where the plaintiff
had filed a suit for divorce in England on the basis of the English Act, that is
the Matrimonial Causes Act, 1973. The particular ground under which the
suit was filed was “that the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with the respondent.” This
ground is covered by S. 1(1)(2)(b) of the Matrimonial Causes Act, 1973.
The decree was obtained in England and came to India for enforcement. The
respondent claimed that since the decree was based on the English Act, there
was refusal by the English Court to recognize the Indian Law. The Court
held that under the Indian Hindu Marriage Act under S. 13(1)(ia), there is a
similar ground which is “cruelty” on which the divorce may be granted.
Therefore the English Act, only used a milder expression for the same
ground and therefore there was no refusal to recognize the law of India.
Thus the decree was enforceable in India.
A meticulous analysis of the above mentioned judicial decisions
alleviate for us to conclude that A judgment or decree passed by a foreign
Court upon a claim for immovable property which is situate in the Indian
territory may not be enforceable since it offends International Law and
establishes the principle that a foreign judgment may not be enforceable in
India, 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

45
Ibid footnote no. 32
46
AIR 1952 Cal. 508.
47
Ibid. at p. 525 para 43 and 44.
48
AIR 1990 Del. 305 at 311.

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4. Where the proceedings in which the judgment was obtained are
opposed to natural justice:
It is a settled principle of law that the judicial and quasi judicial
adjudication should always adhere to the Principles of Natural Justice and
judgments delivered by a Court should be obtained after due observance of
the due process of Law. A few of the several principles of natural justice
being reasonable notice to the parties to the dispute, opportunity of being
heard to the parties to the dispute.
A judgment, which is the result of bias or want of impartiality
on the part of a the judicial authority, will be regarded as a nullity and
the “trial corum non judice49”. The Hon’ble Supreme Court while
interpreting the scope of S. 13(d) and the expression “principles of natural
justice” in the context of foreign judgments held that since the natural
guardians who were served with the notices did not evince any interest in
joining the proceedings, the appointment of an officer of the court to be
guardian ad litem of the minors in the proceedings was substantial
compliance of the rule of Natural justice. The Court further observed that,
the expression “natural justice” in clause (d) of Section 13 relates to
the irregularities in procedure rather than to the merits of the case.
In the case of Lalji Raja & Sons v. Firm Hansraj Nathuram50, the
Supreme Court held that just because the suit was decreed ex-parte, although
the defendants were served with the summons, does not mean that the
judgment was opposed to natural justice.
In the case of I&G Investment Trust v. Raja of Khalikote51, the Court
held that although the summons were issued but were never served and the
decree was passed ex-parte, the proceedings were opposed to principles of
natural justice and thus inconclusive.
Thorough scrutiny and analysis of the principles and judicial
pronouncements lead us to an understanding that a judgment given without
notice of the suit to the defendant or without affording a reasonable
opportunity of representing his case is contrary to the principles of natural
justice and, therefore, does not operate as res judicata. Court pronouncing a
judgment or decree must be composed of impartial persons, must act fairly,
without bias in good faith. A judgment or decree, in order to be competent
and conclusive for enforcement in India must pass the test of gratifying the
principles of natural justice in case the judgment or decree comes to the
Indian court for enforcement

49
Sankaran Vs. Lakshmi (1975) 3 SCC 351 (356): AIR 1974 SC 1764.
50
AIR 1971 SC 974 at p. 977
51
AIR 1952 Cal. 508 at p. 524.

29
5. Where it has been obtained by fraud:
Section 13 (e) of the CPC embarks that a foreign judgement to be
enforceable in India should not be obtained by fraud. Also, it is a settled
principle of Private International Law that a judgement obtained by fraud is
inconclusive and shall not serve as res judicata. Such fraud should not
merely be constructive, but must be actual fraud consisting of
representations designed and intended to mislead; a mere concealment of
fact is not sufficient to avoid a foreign judgment.
Concurrently if we analyse, on the same subject, the position of law
in England the conclusions are essentially the same. Cheshire52 states: “It is
firmly established that a foreign judgment is impeachable for fraud in the
sense that upon proof of fraud it cannot be enforced by action in
England.” All judgments whether pronounced by domestic or foreign courts
are void if obtained by fraud, for fraud vitiates the most solemn proceeding
of a court of justice.
In the case of Satya v. Teja Singh53 the Supreme Court held that
since the plaintiff had misled the foreign court as to its having jurisdiction
over the matter, although it could not have had the jurisdiction, the judgment
and decree was obtained by fraud and hence inconclusive.
Lazarus Estates Ltd. v. Beasley54, it was observed by Lord Denning
that, “No judgment of a court, no order of a Minister, can be allowed to
stand, if it has been obtained by fraud.”
In the case of Sankaran v. Lakshmi55 the Supreme Court held as
follows:
“In other words, though it is not permissible to show that
the court was mistaken, it might be shown that it was
misled. There is an essential distinction between mistake
and trickery. The clear implication of the distinction is that
an action to set aside a judgment cannot be brought on the
ground that it has been decided wrongly, namely that on the
merits, the decision was one which should not have been
rendered but that it can be set aside if the Court was
imposed upon or tricked into giving the judgment.”
The Hon’ble Court further observed that The fraud may be either
fraud on the part of the party invalidating a foreign judgment in

52
Private International Law, 8th Edn., p. 368.
53
AIR 1975 SC 105 at p. 117 para 50.
54
(1956) 1 All ER 341 (345)
55
AIR 1974 SC 1764 at p. 1770.

30
whose favor the judgment is given or fraud on the court pronouncing
the judgment.
In the case of Maganbhai Chhotubhai Patel v. Maniben56, the court
held that since the plaintiff had misled the court regarding his residence
(domicile), the decree having been obtained by making false representation
as to the jurisdictional facts, the decree was obtained by fraud and hence was
inconclusive.
Finally to conclude the analysis, it is pertinent to study,
Chengalvaraya Naidu v. Jagannath57, wherein the Hon’ble Supreme Court
observed: “It is the settled proposition of law that a judgment or decree
obtained by playing fraud on the court is a nullity and non est in the eyes
of the law. Such a judgment/decree by the first court or by the highest court
has to be treated as a nullity by every court, whether superior or inferior. It
can be challenged in any court even in collateral proceedings.”
Therefore it is judicious to observe that a judgment or a decree
which is void ab initio cannot be enforced anywhere in the world.
6. Where it sustains a claim founded on a breach of any law in force in
India:
A foreign judgment founded on a breach of any law for the time
being in force in India, it would not be enforced in India. Section 13 (f) of
the CPC confirms and lays down the above mentioned principle/ law.
In the case of T. Sundaram Pillai v. Kandaswami Pillai58, the plea of
the defendant was that the judgment was obtained in breach of the Contract
Act since the defendants at the relevant time were minors when the contract
was entered into and since under the Contract Act they were not competent
to enter into a contract, the claim was founded on the breach of the Indian
Law. The Court held that, when a decree sustains a claim which was not
wholly founded upon a breach of the Contract Act, the appellant cannot be
prevented by clause (f) of S. 13 from executing his decree.
In Satya v. Teja Singh59, it was observed by the Hon’ble Supreme
Court that every case, which comes before an Indian Court, must be decided
in accordance with Indian law. It is implicit that the foreign law must not
offend the public policy.
Thus, a judgment or a decree, passed by a foreign court, on a
claim founded on a breach of any law in force in India would not be
enforceable in India.
56
AIR 1985 Guj. 187.
57
(1994) 1 SCC 1: AIR 1994 SC 853.
58
AIR 1941 Mad. 387
59
AIR 1975 SC 105 at p. 117 para 50.

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V. A Wrap Up:
The conditions for seeking execution of a foreign decree in India
have been very aptly summed up by the Indian Supreme Court in M.V. AL.
Quamar Vs. Tsaviliris Salvage (International) Limited60, it has been
observed:
“A mere glance at that provision, read with relevant explanations
shows that before it is invoked by any decree-holder, he must satisfy the
following conditions.
1. A decree-holder who seeks execution must be armed with a
money decree passed by any of the superior Court of any
reciprocating territory, being any foreign country or territory
which the Central Government may, by notification in official
gazette, has declared to be a reciprocating territory for the
purpose of the Section.
2. Such an execution petition can be entertained by the executing
Court in India being the District Court that will be clothed with
the legal fiction as if the said foreign decree was passed by itself
and whose aid and assistance are required for executing such a
decree.
3. Such a decree can be put up for execution before a District
Court in India being the principal Civil Court of original
jurisdiction and which will include the local limits of the
original civil jurisdiction of a High Court.
4. Once such execution petition is filed before the appropriate
District Court the entire machinery of Section 47 for execution
of Indian decrees would automatically get attracted.
5. In such execution proceedings, the judgment-debtor of a foreign
Court decree will be entitled to satisfy the executing Court in
India that the foreign decree cannot be executed against him as
it is hit by any of the exceptions specified in Clauses (a) to (f) of
Section 13 of the C.P.C.”
Practical experience in seeking actual implementation of the
provisions of the CPC for execution of foreign decrees in Indian Courts has
shown that they provide an effective and composite remedy under Indian
law to foreign decree holders who are otherwise alien to the Indian legal
system. A judgement debtor will surely avoid the enforcement by setting up
legal objections available to him under Section 13 of the CPC which makes
enforceability of foreign judgements a daunting task. Execution of a decree

60
AIR, 2000 SC 2826 at p. 2832, para 6.

32
even in the Indian scenario is sometimes a start of a new round of litigation.
Section 44A read with Section 13 of the CPC are composite, concise and
inbuilt provisions of law which are exclusively applicable for execution of
foreign decrees only.
And finally, Section 14 of the CPC lays down the “Presumption as
to Foreign Judgments” and states that “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”.
A reading in totality of the matters in the overseas family law
jurisdictions gives an indication that in such affairs, it is the judicial
precedents which provide the much available guidance and judicial
legislation on the subject. With the large number of non-resident Indians
now permanently living in overseas jurisdictions, it has now become
important that some composite legislation is enacted to deal with the
problems of non-resident Indians to avoid them from importing judgments
from foreign courts to India for implementation of their rights. The answer,
therefore, lies in giving them law applicable to them as Indians rather than
letting them invade the Indian system with judgments of foreign
jurisdictions which do not find applicability in the Indian system. Hence, it
is the Indian legislature which now seriously needs to review this issue and
come out with a composite legislation for non-resident Indians in family law
matters. Till this is done, foreign court judgments in domestic matters will
keep cropping up and courts in India will continue with their salutary efforts
in interpreting them in harmony with the Indian laws and doing substantial
justice to parties in the most fair and equitable way61.
Analyzing the trends and judicial decisions it can be evidently
concluded that, the Indian judiciary has made it clear that, the Indian Courts
would not simply mechanically enforce judgments and decrees of foreign
courts in family matters. The Indian courts have now started looking into the
merits of the matters and deciding them on the considerations of Indian law
in the best interest of the parties rather than simply implementing the orders
without examining them. Fortunately, we can hail the Indian Judiciary for
these laudable efforts and till such time when the Indian legislature comes to
rescue with appropriate legislation, we seek solace with our unimpeachable
and unstinted faith in the Indian Judiciary.

61
LAW COMMISSION OF INDIA (REPORT NO. 219) Need for Family Law
Legislations for Non-resident Indians, 30th March, 2009, p. 21

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