Under Section 2(5) of the Code of Civil Procedure, foreign courts are defined as a Court situated outside India and not established or continued by the authority of the Central Government. Section 2(6) lays down the definition of foreign judgment as foreign judgment means the judgment of a foreign Court. Under Section 44-A read with section 13 of the Code of Civil Procedure, the recognition and enforcement of foreign judgments have been dealt with.
The foreign judgments can be enforced by the way of institution an execution proceeding under section 44-A read with Section 13 of CPC in cases of reciprocating territories and instituting a civil suit on the judgement in non-reciprocating countries. The concept of res judicata as defined under Section 11 of CPC is enacted in cases of foreign judgments. Res judicata means that no court has the power to try any fresh suits which have already been decided between the same parties. Any judgment or decree passed by the foreign court can be enforced in Indian Courts but the concept of res judicata will be applicable on the same except under the cases mentioned in section 13.
In case of enforcement of any decree passed by foreign countries in reciprocating territories the parties need to file an application for the execution of the judgement or decree or order in the Indian courts. A certified copy of the decree/order should be presented, as well as a document from the foreign country’s higher court specifying the amount, if any, that has been fulfilled under the decree/order. Following this application, the relevant court will ask the party seeking execution to show reason why the decree/order should not be carried out. After the filing of the application the opposite party will be called upon to prove cause against the execution decree.
The decree holder has to file an application for the execution of decree before the competent court. The court will issue a notice to the opposite party against whom the execution is sought. In case the opposite party does not show up in court, the court will pass an order for the execution decree. In case the defendant challenges the application under 44A, the defendant has the right to argue in the case in favor of their case and why the decree should not be enforced. The court will consider both arguments and determine the order based on the same. Revision or appeal can also be sought by the parties. In the case of a non-reciprocating region, the judgement holder has the option of bringing litigation against the foreign decree or judgement. Only after the suit has been approved may it be performed as a domestic decree, according to Order 21 of the Code of Civil Procedure. Foreign decrees and judgments from reciprocating territories can be implemented in India as if they were decrees issued by an Indian court, allowing the Limitation Act 1963 to be applied equally. The statute of limitations is as follows:
- In case an execution decree has to been passed related to granting of a mandatory injunction the limitation period for the same has been fixed for three years from the decree
- In case of execution of any other decree the limitation period is 12 years from the date on which the decree is enforceable.