In India the enforcement and recognition of foreign judgments and decrees/orders are governed by Section 44-A, read with Section 13 of the Code of Civil Procedure 1908. The foreign judgment is definite under Section 13 of the code of Civil Procedure 1908 can be enforced by:
- Instituting execution proceedings under Section 44-A, read with Section 13 of the CPC in the case of reciprocating territories or
- Instituting of any civil suit on the judgment of a non reciprocating country.
The foreign courts defined asa court which are not situated in India and even not established by the authority of the Central Government of India. Also a Foreign Judgment or order means a judgment passed by a foreign court. In other words, a foreign judgment means any adjudication by foreign courts upon a matter before it. So that the judgments are passed by courts in France, Germany, England, USA and France are foreign judgments. Under Sections 13 and 14 a rule of res judicata is enacted in case of foreign judgments. Res Judicata has been defined under section 11 of the CPC. It means that no court will have the power to try any fresh suit which has been already decided in the former suit between the same parties. This provision of law represent the principle of private international law that any judgment delivered by any foreign court of jurisdiction can be enforced by an Indian court and it will also work as res judicata between all the parties related to the matter except to the case mentioned in Section 13. To enforce a foreign judgment or order/decree from a reciprocating territory, it is must for the decree holder to file an application for the execution of the judgment or decree/order in the competent Indian court i.e. the relevant district court. A certified copy of the decree/order and a certificate from the higher court of the foreign country stating the amount, if any that has been satisfied under the decree/order should also submitted. Following this application the competent court will call on the party against which execution is sought to prove cause against the execution of the decree/order. In this procedure the person against whom the execution is sought objects to the execution, the court will state his order after hearing the objections. In India there isnumber of stages instituted for an execution proceedings in order to enforce a decree under Section 44A of the Code of Civil Procedure (CPC) are as follows:
Application for execution – It is important to the decree holder that he must file an application for execution of the decree before the competent court. Show cause Notice – Thereafter the court will issue notice to opposite party or the person against which execution is sought requiring such person to show cause that why the decree/order should not be executed. No contest – If the person against which the decree is to be executed does not appear in the court or not shows cause as to why the decree should not be executed, the competent court will pass order the decree to be executed. Objection raised: Where the defendant challenge under Section 44A read with Section 13 of the Code of Civil Procedure (CPC) it can argue that why the decree should not be enforced in favor of applicant. In this case, the competent court will consider the application and determine all the facts whether the foreign judgment falls under any of the exceptions under Section 13or not. While the given order is not appealable then a review or revision can be sought.
- Court process – if there is no objection or if the court holds that there is no exceptions under Section 13 apply, the court will issue a process and appoint an appropriate officer/judge to execute the decree.
- Once the process is issued by the court, the decree holder can apply to the court to giveinstructions to the judgment debtor to disclose any liabilities and assets. If these assets are disclosed by the judgment debtor the court will initiate with the attachment and sale of such assets.
In case of a non reciprocating territory the judgment holder can file a suit on the foreign decree or judgment. Under Order 21 of the Code of Civil Procedure only once the suit is allowed can it be executed as a domestic decree.
Under the Code of Civil Procedure foreign decrees and judgments from reciprocating territories can be executed in India as decrees passed by the Indian court thus the Limitation Act 1963 can be applied in equal manner. The limitation period is as under:
- Where the execution of a decree granting a mandatory injunction, the limitation period is the date fixed for performance or the three years from the date of the decree.
- The execution of any other decreethe limitation period is12 years from the day on which the decree has enforceable or where the decree directs any payment of money or the delivery of any property/assets to be made at a particular date when default in making the payment or delivery in respect of which execution is sought takes place.