There is an unique procedure for execution of foreign judgment in India. When a foreign court cannot execute its judgment or decree in India because it has no territorial jurisdiction. In this situation the decree holder shall file a fresh civil suit in India on the basis of the decree of foreign court.
According to section 2(6) of the Code of Civil Procedure (CPC), “foreign judgment” means the judgment of a foreign Court. The foreign court is defined under section 2(5) as “foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government.
Execution of foreign judgment
A foreign judgment cannot be executed in India directly as Indian judgment. Under Indian law, there are two ways of getting a foreign judgment enforced. Firstly by filing an Execution Petition under Section 44 A of the CPC (in case the conditions specified therein are fulfilled) and secondly by filing a suit upon the foreign judgment / decree.
However, for the execution of foreign decree the Indian court will test its validity under Section 13 CPC. This section specifies certain exceptions under which the foreign judgment becomes inconclusive and is therefore not executable or enforceable in India.
Also read: How to set aside ex-parte decree?
Under Section 13 CPC (Code of Civil Procedure, 1908) a foreign judgment becomes inconclusive and consequently unenforceable in the following circumstances:
- where it has not been pronounced by a Court of competent jurisdiction;
- where it has not been given on the merits of the case;
- 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;
- where the proceedings in which judgment was obtained are opposed to natural justice;
- where it has been obtained by fraud;
- where it sustains a claim founded on a breach of any law in force in India.
Therefore for the execution of foreign judgment, it must comply the conditions of section 13 CPC. The decree of foreign court is a piece of evidence and Indian court shall admit the certified copy of foreign decree as genuine. By getting a decree in the foreign Court, the plaintiff has only avoided the inconvenience of leading evidence in the Indian Courts.
