Foreign Judgments

Section 14 then supplies a presumption. On production of a document purporting to be a certified copy of a foreign judgment, the court shall presume that the judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record. That presumption may be displaced by proving want of jurisdiction.

Read sections 13 and 14 together and the practical position is this: produce the certified copy and competence is assumed in your favour; the other side must then prove otherwise.

Broken down: the six exceptions

(a) Not by a court of competent jurisdiction. Competence here is not decided by the foreign court's own view of itself. An Indian court asks whether that court had jurisdiction by the rules Indian law recognises, which in the main means the defendant's presence, residence or submission to that court. A defendant who never set foot in the country, never traded there and never agreed to be sued there is not bound merely because a court there was willing to hear the case.

(b) Not given on the merits. The court must have applied its mind to the truth or falsehood of the claim. This is the exception that generates most of the case law, and it is dealt with under International Woollen Mills below.

(c) Founded on an incorrect view of international law, or a refusal to apply Indian law. Two limbs. The defect must appear on the face of the proceedings: an Indian court does not re-try the foreign case to hunt for it. The second limb bites where the foreign court was bound to apply Indian law to the question and declined to, for instance by applying its own divorce law to a marriage governed by Indian personal law.

(d) Opposed to natural justice. This is about the procedure, not the outcome. It means the party was not given notice, or not given a hearing, or the court was biased. A student who writes that a judgment is against natural justice because it is harsh has answered a different question. An unjust result reached by a fair procedure does not fall in clause (d).

(e) Obtained by fraud. Fraud vitiates everything, and this is the widest of the six. The fraud that matters is very often a lie about the facts on which the foreign court's jurisdiction depended, which is Satya v. Teja Singh below.

(f) Sustains a claim founded on a breach of a law in force in India. A foreign court may happily enforce a contract that Indian law forbids, for instance a wagering agreement or a transaction that breaches Indian exchange control. India will not lend its courts to enforcing the result.

The cases

Fraud, and why it is usually fraud about jurisdiction

Satya v. Teja Singh, AIR 1975 SC 105, decided on 1 October 1974 by Chandrachud and Khanna JJ.

Facts. Satya and Teja Singh married at Jullundur in July 1955 by Hindu ceremonies. Both were Indian citizens living in India, and they had two children. In January 1959 the husband went to the United States to study forestry, leaving his wife and children behind. He later obtained a decree of divorce from a court in Nevada. That court took jurisdiction on his assertion that he was a bona fide resident of, and domiciled in, Washoe County, Nevada, intending to make Nevada his home for an indefinite period. The wife claimed maintenance in India, and the husband produced the Nevada decree to say she was no longer his wife.

Held. The assertion of Nevada domicile was a misrepresentation of the very fact on which the Nevada court's jurisdiction rested. That was a fraud on that court, which had been given jurisdiction by a trick. The decree was therefore not conclusive in India, and Satya remained his lawful wife and could claim maintenance.

Why it matters here. It is the leading Indian case on clause (e), and it teaches the shape the fraud usually takes. The lie is rarely about the merits of the dispute. It is about where the party lived, because that is what lets a convenient foreign court take the case at all. So clause (e) and clause (a) tend to arrive together.

On the merits, and the trap in the words "ex parte"

International Woollen Mills v. Standard Wool (U.K.) Ltd, (2001) 5 SCC 265, decided on 25 April 2001.

Facts. An Indian buyer ordered greasy fleece wool from an English seller, shipped to Mumbai in September 1996. The buyer said the wool was of inferior quality and refused to pay. The seller sued in the Central London County Court. The buyer did not appear, and a decree for 49,895.50 dollars was passed ex parte in April 1998. The seller then sought to enforce it in India.

Held. A foreign judgment passed merely for default of appearance, where the court did not consider whether the claim was true, is not a judgment given "on the merits of the case" under clause (b). The Court observed that this makes Indian law different from systems which treat such default judgments as final and conclusive. It also held that the burden of showing a decree is not on the merits lies on the party who alleges it.

Why it matters here. It corrects the commonest error students make on this topic. The test is not whether the defendant turned up. It is whether the foreign court applied its mind to the claim. A decree entered as an administrative consequence of silence is not on the merits; a decree where the judge heard the plaintiff's evidence and decided the claim was made out can be on the merits even though the defendant never appeared.

A worked example

This is, almost word for word, the problem MU set in December 2023.

Avinash and Yash are independent businessmen with offices in India and in Portugal. A dispute arises out of a business transaction between them. Avinash says a court in Portugal has pronounced judgment in his favour.

First, what is that court and that judgment called in India? The Portuguese court is a foreign Court under section 2(5), because it sits outside India and was not established by the authority of the Central Government. Its decision is a foreign judgment under section 2(6). Its effect in India is governed by section 13.

Second, on what grounds can Yash attack it? Any of the six in section 13, and in practice he would look first at these three. That the Portuguese court had no jurisdiction over him by the rules Indian law recognises, under clause (a), which is the strongest ground if he never traded in or submitted to Portugal. That the decree went against him only because he did not appear and the court never examined the claim, under clause (b), following International Woollen Mills. That he was never served or never heard, under clause (d).

Third, and this is the part most answers miss: what can Avinash actually do with his judgment in India? There are two routes and they are not interchangeable.

Where the foreign country has been declared a reciprocating territory by the Central Government under section 44A, a certified copy of the decree of a superior court there can be filed in an Indian District Court and executed as if that District Court had passed it. No fresh suit is needed. The Explanation to section 44A limits this to decrees for a sum of money, and expressly excludes sums payable for taxes, fines or other penalties, and excludes arbitration awards altogether. Section 44A(3) then applies section 13 anyway: the executing court must refuse execution if the decree falls within any of clauses (a) to (f).

The territories notified include the United Kingdom, Singapore, Bangladesh, Malaysia, New Zealand, Hong Kong, Fiji, Papua New Guinea, Trinidad and Tobago, the Cook Islands, Aden, and the United Arab Emirates, which was notified in January 2020.

Portugal is not among them. So Avinash cannot execute his Portuguese decree under section 44A at all. His only route is to file a fresh suit in India on the foreign judgment, in which the judgment is his cause of action and is conclusive under section 13 unless Yash brings it within one of the six exceptions.

Distinguish: section 13 and section 44A

The single most useful thing to remember is that section 44A does not replace section 13, it sits on top of it. Reciprocity buys you a shorter procedure, not immunity from the six exceptions.

What it does not mean

It does not mean an Indian court re-tries the foreign case. Section 13 lists six specific defects. A party who simply disagrees with the foreign court's findings has no answer under this section.

It does not mean any ex parte decree fails clause (b). See International Woollen Mills. What fails is a decree entered for default alone.

"Opposed to natural justice" is not "unjust". Clause (d) is about procedure: notice, hearing, an unbiased court.

Section 14's presumption is about competence only, and only on production of a certified copy. It presumes nothing about the merits, about fraud, or about anything else in section 13.

A foreign award is not a foreign judgment. Arbitration awards are governed by the Arbitration and Conciliation Act 1996, and section 44A expressly excludes them.

Quick revision

Sections 13, 14 and 44A of the Code of Civil Procedure 1908, with the definitions in sections 2(5) and 2(6).

Section 13: a foreign judgment is conclusive, except on six grounds. Not by a competent court; not on the merits; incorrect view of international law or refusal to apply Indian law; opposed to natural justice; obtained by fraud; sustains a claim founded on a breach of Indian law.

Section 14: on a certified copy, competence is presumed until the contrary is proved.

Section 44A: a money decree of a superior court of a notified reciprocating territory is filed in a District Court and executed as its own. Not taxes, fines or penalties. Never an arbitration award. The six exceptions still apply, by section 44A(3).

Cases: Satya v. Teja Singh for fraud, and note that the fraud was about domicile, which is jurisdiction. International Woollen Mills for the merits, and note that default of appearance alone is not a decision on the merits.

The link back: section 13's opening words are section 11's words, so a foreign judgment that survives section 13 works in India much as res judicata does.

Test yourself

1. In two sentences, what is a foreign judgment and what is its effect in India? A foreign judgment is the judgment of a court situated outside India which was not established or continued by the authority of the Central Government, as defined in sections 2(5) and 2(6). Under section 13 it is conclusive in India as to any matter directly adjudicated upon between the same parties litigating under the same title, unless it falls within one of the six exceptions in clauses (a) to (f).

2. Name the six exceptions in section 13. Not pronounced by a court of competent jurisdiction; not given on the merits; founded on an incorrect view of international law or a refusal to recognise Indian law where applicable; proceedings opposed to natural justice; obtained by fraud; sustains a claim founded on a breach of a law in force in India.

3. A decree was passed abroad because the Indian defendant never appeared. Is it conclusive? Not if it was passed merely for default of appearance without the court considering the truth of the claim, because it is then not a judgment on the merits under clause (b): International Woollen Mills v. Standard Wool (U.K.) Ltd, (2001) 5 SCC 265. But if the foreign court examined the plaintiff's evidence and decided the claim was made out, it can be on the merits despite the defendant's absence. The burden of showing a decree is not on the merits is on the party alleging it.

4. What kind of fraud defeats a foreign judgment, and give the case. Fraud on the foreign court, characteristically a misrepresentation of the facts on which that court's jurisdiction depended. In Satya v. Teja Singh, AIR 1975 SC 105, the husband obtained a Nevada divorce by asserting a Nevada domicile he did not have, and the decree was held not conclusive in India.

5. Avinash holds a money decree from a court in Portugal. Can he file it in an Indian District Court and execute it? No. Section 44A is available only for decrees of superior courts of territories the Central Government has notified as reciprocating, and Portugal is not among them. He must file a fresh suit in India on the foreign judgment, where it will be conclusive under section 13 unless the other side brings it within one of the six exceptions.

6. If the decree had come from a court in Singapore instead, what would change? Singapore is a notified reciprocating territory, so a certified copy of a decree of its superior courts could be filed in a District Court and executed as if that court had passed it, provided the decree is for a sum of money and is not for taxes, a fine or a penalty, and is not an arbitration award. The six exceptions in section 13 would still apply, because section 44A(3) requires the executing court to refuse execution if the decree falls within any of them.

7. What does section 14 presume, and what displaces it? On production of a document purporting to be a certified copy of a foreign judgment, the court shall presume that it was pronounced by a court of competent jurisdiction, unless the contrary appears on the record. The presumption is displaced by proving want of jurisdiction.