India: Executability & Enforceability Of Foreign Judgments And Decrees In India: Judicial Trends ~ Part 3

The case of Anoop Beniwal v. Jagbir Singh Beniwal⁶⁵ relates to a matrimonial dispute between the parties. The facts of the case are that the plaintiff had filed a suit for divorce in England on the basis of the English Act, that is the Matrimonial Causes Act, 1973. The particular ground under which the suit was filed was "that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent." This ground is covered by S. 1(1)(2)(b) of the Matrimonial Causes Act, 1973. The decree was obtained in England and came to India for enforcement. The respondent claimed that since the decree was based on the English Act, there was refusal by the English Court to recognise the Indian Law. The Court held that under the Indian Hindu Marriage Act under S. 13(1)(ia), there is a similar ground which is "cruelty" on which the divorce may be granted. Therefore the English Act, only used a milder expression for the same ground and therefore there was no refusal to recognise the law of India. Thus the decree was enforceable in India.

In the case of I & G Investment Trust v. Raja of Khalikote ⁶⁶, a suit was filed in the English Jurisdiction to avoid the consequences of the Orissa Money Lenders Act. The Court held that the judgment was passed on an incorrect view of the International law. The Court further observed that, although the judgment was based on the averment in the plaint that the Indian law did not apply, however there was no "refusal" to recognise the local laws by the Court.⁶⁷

In the case of Ganga Prasad v. Ganeshi Lal ⁶⁸, it was alleged by the defendant that since the suit if it was to be instituted in the domestic Courts, it would have been time-barred but under the foreign law it has been decreed and therefore there was a refusal to recognise the Indian law. The Allahabad High Court in this situation held that there was no refusal to recognise the Indian Law. The Court further held that the general rule is that the Court which entertains a suit on a foreign judgment cannot institute an enquiry into the merits of the original action, or the propriety of the decision.

In the case of Panchapakesa Iyer v. K.N. Hussain Muhammad Rowther ⁶⁹, the facts were that the foreign Court granted the probate of a will in the favour of the executors. The property was mostly under the jurisdiction of the foreign Court, but some of it was in India. A suit came to be filed by the wife of the testator against the executors for a claim of a share in the property. The suit of the widow was decreed and a part of it was satisfied. The remaining part the widow assigned in favour of the Plaintiff in the present suit. In the present suit the Plaintiff relied upon the foreign judgment for a claim against the defendants for a share in the property within the jurisdiction of the domestic Court. One of the defences which was taken for resisting the suit was that the widow's claim was founded upon a breach of a law in force in India. The Court observed that

"She made as the Learned Subordinate Judge has found in another part of his judgment, a claim which could not be entirely supported by the law of British India; but that is a different thing from founding a claim on a breach of the law in British India, for instance a claim in respect of a contract which is prohibited in British India.⁷⁰ "

Another issue which fell for the Courts consideration was that whether the foreign Court had decreed the suit on an incorrect view of International Law. In this regard the Court held that the foreign Court had adopted an incorrect view of International Law, since a foreign Court does not have jurisdiction over the immovable property situated in the other Country's Court's jurisdiction. Therefore the judgment was declared to be inconclusive and unenforceable in India.

By reading the aforesaid cases under Section 13(c) of CPC the following proposition may be laid:

1. A judgment or decree passed by a foreign Court upon a claim for immovable property which is situate in the Indian territory may not be enforceable since it offends International Law.
2. A judgment or decree passed by the foreign Court to where before a contrary Indian law had been shown, but the Court had refused to recognise the law, then that Judgement or decree may not be enforceable. However if the proper law of contract is the foreign law then this may not be applicable.

4. Where The Proceedings In Which Judgment Was Obtained Are Opposed To Natural Justice

Since compliance to principles of Natural Justice has been universally accepted, this requirement has been incorporated in S. 13 of CPC. The following are the cases which expound the stipulation laid down in the section.

In the case of Hari Singh v. Muhammad⁷¹ Said the Court found that the foreign Court did not appoint a person willing to act as a guardian ad litem of the minor defendant ⁷². The court also held that proceedings could not have proceeded ex-parte against the minor. The Court further held that the minor defendant did not have any knowledge of the suit being pending against him even after he became a major which was before the judgment was passed. On this basis the court held that the passing of the judgment against the minor was opposed to natural justice within the meaning S. 13(d) of CPC. The Court also held that since the legal representatives of one of the defendants were also not brought on record, this also amounted to denial of natural justice. Therefore the judgment was held to be inconclusive qua these defendants.

In the case of R. Vishwanathan v. Rukn – Ul- Mulk Syed Abdul Wajid ⁷³, the Supreme Court got an occasion to interpret S. 13(d) of CPC. The facts of this case are that the family members of the testator challenged the will by filing caveat when the probate proceedings were initiated with regard to property A in the jurisdiction of Court A. The caveat was dismissed and the appeals therefrom also stood dismissed. Therefore the probate was confirmed. Applications for probate of the will concerning properties at B & C were also filed. (C was a foreign Country). The family members of the testator thereafter filed suits against the executors and other persons for establishing their title to and for possession of the estate disposed of by the will of the testator. The plea taken by the plaintiffs in the suit was that the will was inoperative and the property was a joint family property. The suits were resisted by the executors of the will on the basis that the property was self acquired amongst other grounds. The suits of the plaintiffs before Court A & B was decreed. Before the Appeal Court, the parties were asked to settle the dispute amicably by the Court and upon that the case was adjourned for six months. Thereafter the plaintiffs claimed upon the settled position between the parties. However, the court declined to enter upon an enquiry as to the alleged compromise because in their view the compromise was not in the interest of the public Trust created by will. Since there was a difference of opinion between the two judges comprising of the division bench, the matter was posted before a full bench consisting of three Judges. It so happened that one of the judges of the division bench was included in the present full bench also. No arguments were made by the plaintiffs before the Full Bench and therefore the appeal was allowed and the suits dismissed. The Application for review was also dismissed. Before the C court the executors took the stand that the decision in the A&B Court was res judicata and therefore the present suit should also be dismissed. The plaintiffs before the C Court contended that since judgment concerned properties at A&B, the immovable properties at C would not be affected. The plaintiff further contended that the judgment was not conclusive since the judges showed bias before and during the hearing of the appeals and that they were incompetent to sit in the full bench and "their judgment was corum non judice." The plaintiff's suit before C Court was decreed on this basis. The executors appealed against the judgment and order. The High court in appeal held that the A&B Court could not have affect the immovables at the C but could affect the movables at C. Against this judgment of the High Court the parties came to the Supreme Court. The plaintiff contended before the Supreme Court that the judgment of A&B Court was not conclusive between the parties in the C Court suit, for the A&B Court was not a Court of competent jurisdiction as to property movable and immovable outside the territory of A&B Court, that the judgment was not binding because the Judges who presided over the Full Bench were not competent by the law of the A&B Court to decide the dispute and that in any event it "was coram non judice" because they were interested or biased and the proceedings before them were conducted in a manner opposed to Natural Justice. Upon consideration of the facts, the Supreme Court observed as follows:

"By S. 13 of the Civil Procedure Code a foreign judgment is made conclusive as to any matter thereby directly adjudicated upon between the same parties. But it is the essence of a judgment of a Court that it must be obtained after due observance of the judicial process, i.e. the court rendering the judgment must observe the minimum requirements of natural justice- it must be composed of impartial persons, acting fairly, without bias and in good faith, it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case. A foreign judgment of a competent court is conclusive even if it proceeds on an erroneous view of the evidence or the law, if the minimum requirements of the judicial process are assured correctness of the judgment in law or on evidence is not predicated as a condition for recognition of its conclusiveness by the Municipal Court. Neither the foreign substantive law, nor even the procedural law of the trial be the same or similar as in the Municipal Court. … The words of the statue make it clear that to exclude a judgement under cl.(d) from the rule of conclusiveness the procedure must be opposed to natural justice. A judgment which is the result of bias or want of impartiality on the part of a judge will be regarded as a nullity and the "trial coram non judice""

In the case of Lalji Raja & Sons v. Firm Hansraj Nathuram ⁷⁴, the Supreme Court held that just because the suit was decreed ex-parte, although the defendants were served with the summons, does not mean that the judgment was opposed to natural justice.

In the case of Sankaran Govindan v. Lakshmi Bharathi ⁷⁵, the Supreme Court while interpreting the scope of S. 13(d) and the expression "principles of natural justice" in the context of foreign judgments held as follows:

"… it merely relates to the alleged irregularities in procedure adopted by the adjudicating court and has nothing to do with the merits of the case. If the proceedings be in accordance with the practice of the foreign court but that practice is not in accordance with natural justice, this court will not allow it to be concluded by them. In other words, the courts are vigilant to see that the defendant had not been deprived of an opportunity to present his side of the case. … The wholesome maxim audi alterem partem is deemed to be universal, not merely of domestic application, and therefore, the only question is, whether the minors had an opportunity of contesting the proceeding in the English Court. If notices of the proceedings were served on their natural guardians, but they did not appear on behalf of the minors although they put in appearance in the proceedings in their personal capacity, what could the foreign court do except to appoint a court guardian for the minors."

In this case it was held that since the natural guardians who were served with the notices did not evince any interest in joining the proceedings, the appointment of an officer of the court to be guardian ad litem of the minors in the proceedings was substantial compliance of the rule of Natural justice.

In the case of Firm Tijarati Hindu Family Joint Kesar Das Rajan Singh v. Parma Nand Vishan Dass ⁷⁷, the suit of the plaintiff was dismissed for non production of the pro note. The Court in this regard held as follows:

"Apart from this it appears to me that the summary dismissal of the suit in this manner offends the principles of natural justice in that the plaintiff had fled to India and in October 1947 it was certainly not practicable either for him to send the pronote to his counsel at Bannu through the post or go there in person with it or to send it though any messenger from this side, and in such circumstances the refusal to allow any further adjournment for the production of the pronote appears to me to be extremely harsh and arbitrary."

In the case of I&G Investment Trust v. Raja of Khalikote ⁷⁸, the Court held that although the summons were issued but were never served and the decree was passed ex-parte, the proceedings were opposed to principles of natural justice and thus inconclusive.

By reading the aforesaid cases under Section 13(d) of CPC the following proposition may be laid:

The Foreign Court which delivers the judgment or decree must be composed of impartial persons, must act fairly, without bias in good faith, and it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case, in order to avoid any allegation of not fulfilling the principles of natural justice in case the judgment or decree comes to the Indian court for enforcement. Unless this is done the judgment or decree passed by a foreign Court may be opposed to Principles of Natural Justice.

66. AIR 1952 Cal. 508.

67. Ibid. at p. 525 para 43 and 44.

68. AIR 1924 All. 161.

69. AIR 1934 Mad. 145.

70. Ibid. at p. 146. It may be noted that under Indian Law wager contracts are void. Therefore on the basis of the proposition laid down in this case, a judgment on the suit based upon a wager which may be instituted in a foreign country where wagers are not prohibited by the laws of that country, may not be enforceable in India.

71. AIR 1927 Lah. 200.

72. Ibid. at p. 214.

73. AIR 1963 SC 1.

74. AIR 1971 SC 974 at p. 977.

75. AIR 1974 SC 1764.

76. Ibid. at p. 1776.

77. AIR 1959 Punj. 306 at p. 308.

78. AIR 1952 Cal. 508 at p. 524.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.