Write a note on Foreign Judgment.
Preamble of the Constitution of India starts with five golden words i.e. Sovereign, Socialist, Secular, Democratic, Republic. Here the word ‘Sovereign’ denotes that India is a sovereign country and Legislature, Executive and Judicial branch of India are free from the interference of foreign countries and are not bound by their decisions. But the main objective of our Indian legal system is to provide such environment in which the citizens of India may grow and develop properly and to provide fair and speedy justice to the aggrieved parties.
That is why, just to save public money and time and to provide speedy justice, our Indian legal system has enacted some provisions and according to these provisions the judgment given by foreign court can be executed in India as if it has been pronounced by Indian court and the judgment may operate as res- judicata between the parties.
Now, the question arises here is, “what does foreign judgment mean?”
Section 2(6) of Code of Civil Procedure, 1908, defines the term foreign judgment. According to this section, foreign judgment means a judgment given by foreign court.
In the leading case of Brijlal Ramjidas v. Govindram Gordhandas, AIR 1947 PC 192 (194), the hon’ble court held that, a foreign judgement means an adjudication by a foreign Court upon a matter before it.
Now, again one arises here is, “what does foreign court mean”?
Section 2(5) of Code of Civil Procedure,1908, defines the term foreign court. According to this section, foreign court means a court situated outside India and not established or continued by the authority of the Central Government.
So, basically any judgment pronounced by any court beyond India which is not established or continued by the authority of Central Government is a foreign judgment and that judgment may operate as res judicata between the parties in India.
Section 13 and 14 of Code of Civil Procedure 1908, deals with the provisions regarding rule of res judicata in case of foreign judgments. According to section 13, if any judgment has been pronounced by foreign court that judgment will be considered conclusive in India as to any matter thereby directly adjudicated upon between the same parties or parties under whom they or any of them claim litigating under the same title if the foreign judgment does not fall in any of the category mentioned under section 13(a) to (f). If the foreign judgment does not fall under these categories then only that judgment will be considered conclusive and if any of party files a suit upon that matter in issue that has been adjudicated upon by the foreign court, that suit will not be tried by Indian court and the foreign judgment will operate as res judicata between the parties.
According to section 13(a) of Code of Civil Procedure, 1908, if a foreign judgment has been pronounced by that court which has no jurisdiction to try that suit then in such a case, that foreign judgment will not be considered conclusive and operate as res judicata between the parties.
In the leading case of Gurdyal Singh v. Rajah of Faridkote, ILR (1895) 22 Cal 222 (PC), the hon’ble court held that it is a fundamental principle of law that the judgment or order passed by the court which has no jurisdiction is null and void. Thus, a judgement of a foreign Court to be conclusive between the parties must be a judgement pronounced by a court of competent jurisdiction.
Moreover, according to section 13(b), foreign judgment will be considered conclusive only if it has been given on merits of the case. If it has not been given on the merits of the case then it will not operate as res judicata between the parties.
In the leading case of Narasimha Rao v. Venkata Lakshmi, (1991) 3 SCC 451, the hon’ble court held that in order to operate as res judicata, a foreign judgement must have been given on merits of the case.
According to section 13 of Code of Civil Procedure, 1908, a foreign judgment should not against the international law or any Indian law and it should not opposed to the principle of natural justice. Moreover, any foreign judgment should not be obtained by any party by committing fraud or it should not breach any Indian law. If the foreign judgment fulfill these conditions then only foreign judgment can be considered conclusive between the parties and operate as res- judicata between the parties.
In the leading case of Badat and Co. v. East India Trading Co., AIR 1964 SC 538, the hon’ble court held that a judgment based upon an incorrect view of international law or a refusal to recognise the law of India where such laws applicable is not conclusive.
According to section 14 of Code of Civil Procedure, 1908, if any party produces certified copy of a foreign judgment in any Indian court then that court will presume that the judgment has been pronounced by court of competent jurisdiction but the opposite party has right to prove that the court has no jurisdiction to pronounce the judgment. If the party proves that the foreign judgment has not pronounced by court of competent jurisdiction then in such a case, the Indian court will not consider that judgment conclusive.
In the leading case of Narasimha Rao v. Venkata Lakshmi, (1991) 3 SCC 451, the hon’ble court held that mere production of a photostat copy of a decree of a foreign court is not sufficient. It is required to be certified by a representative of the foreign Court.
A foreign judgment which is conclusive under section 13 of Code of Civil Procedure, 1908, can be enforced in India. According to section 44-A of Code of Civil Procedure, 1908, if any foreign judgment which has been pronounced by superior foreign court is filed in District Court in India for execution that judgment will be executed as if it has been passed by District court. If the judgment has been filed in District Court then firstly District court assures that whether the judgment falls under any of the category mentioned under section 13(a) to (f) and if court finds that the judgment falls under any of the abovesaid category then the court will refuse to execute it otherwise the court will execute the foreign judgment.