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A Note on Foreign Judgment

Indian legal system is based on Common Law System. The Civil Procedure code, 1908 (C.P.C) deals with the foreign court and foreign Judgement. Section 2(5) of the code defines a “foreign court” as a court situated outside India and not established or continued by the authority of the Central Government.  Section 2 (6) of the code defines “Foreign Judgement” as the judgment of the foreign court. Section 13, 14 and 44 of the Code deals with the foreign judgment or decrees.

Section 13 embodies the principle of private international law that the court will not enforce a foreign judgment if the judgment is not of that of a competent court. The rules laid down under section 13 are of the adjective law along with the procedural law. Section 13 and 14 of the code enact a rule of res judicata in case of a foreign judgment.

Jurisdiction of Foreign Court

The following Circumstances would give jurisdiction to foreign courts:

  1. Where the person is a subject of the foreign court in which the judgment has been obtained.
  2. Where he was a resident in the foreign country when the action was commenced and summon was served on him.
  3. Where the person in the Character of plaintiff selects the foreign court select the forum for taking action in which forum he issued latter.

Binding Nature of the Foreign Court

Section 13 of the Code has provisions regarding the binding nature of the foreign Judgement. It states that the Foreign Judgement shall be shall be Conclusive as to any matter thereby directly adjudicated upon between the same parties under whom they or any of them Claim litigating the same. There are certain exceptions where the Foreign Judgement has not been Pronounced by a court of Competent Jurisdiction or it has not been given on the merits of the Case or where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; or the Proceedings the Obtained judgment was obtained are opposed to natural justice. In case the judgment has been obtained by fraud or sustaining the Claim founded on a breach of any law in force in India.

Foreign Judgement When not Binding

Under section 13 of the Code, a foreign judgment is Conclusive and operates as res Judicata between the parties thereto except in the cases a)when the foreign judgment is not by a competent Court; b) Foreign Judgement not on merits: c) Foreign Judgement against the international or Indian Law: d) Foreign Judgement opposed to natural justice; e) when the judgment is obtained by the fraud: and when the Judgement is founded on the breach of Indian Law.

Presumption as to foreign Judgement

The Court shall presume, upon the production of any document supporting to be a certified copy of a foreign judgment was pronounced by the Court to Competent Jurisdiction, unless the Contrary Jurisdiction unless the contrary appears on the record but such presumptions may be displaced by proving want of Jurisdiction.

This note has been written by Gaurav Kumar from Surendranath Law College, Kolkata.

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