A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except.
(a) Where it has not been pronounced by a court of competent jurisdiction;
(b) Where it has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) Where it has been obtained by fraud;
(f) Where it sustains a claim founded on a breach of any law in force in India.
Under section 13(a) of the Code of Civil Procedure, a foreign judgment is conclusive as to any matter thereby directly adjudicated upon except “where it has not been pronounced by a court of competent jurisdiction”. That the validity of the judgment is questioned in a criminal court and not in a civil court is not necessary for consideration. If the judgment falls under any of the clauses (a) to (e) of section 13, it will cease to be conclusive as to any matter thereby adjudicated upon. The judgment will then be open to a collateral attack on the grounds in the five clauses of section 13.
Section 13(f), C.P.C. does not require that the procedure of the foreign court should be identical with or even similar to the procedure of the Courts in this country. That section again does not say that any irregularities in the procedure prescribed for the foreign court by the law of that State to which it belongs, would invalidate its decision.
The legal basis of the claim in the foreign court must involve a breach of the laws in force here; it is that which is dealt with in clause (f) and not variations in the procedure of the foreign court from the procedure in force here.
The expression “foreign judgment” under section 13 of the Code must be understood to mean “an adjudication by a foreign court upon the matter before it”.
It is for foreign court to interpret its own law and rules of procedure and its decision that a particular court was the ‘proper’ court must be regarded as conclusive.
A State is not bound under the law of nations to enforce within its territories the judgment of a foreign tribunal. But in England,-and in countries where the English system of jurisprudence prevails, such a judgment is enforced on the principle that where a court of competent jurisdiction has adjudicated that a certain sum is due from one person to another, a legal obligation arises to pay that sum on which an action of debt to enforce the judgment can be maintained. This is the principle on which section 13 is based.
The section enacts a rule of res judicata in the case of foreign judgments, except in the six circumstances mentioned above. In other words, a foreign judgment is conclusive as to any matter directly adjudicated upon, except under the above six conditions, provided all the other conditions of section 11 are satisfied.
Court of competent jurisdiction:
Competency is to be determined according to the principles of international law and not according to the law of the foreign court.
Rules as to competent jurisdiction:
In Dicey the rule as to competent jurisdiction has been stated to be as follows:
“In an action in personam in respect of any cause of action, the courts of a foreign country have jurisdiction in the following cases:
Where at the time of the commencement of the action the defendant was resident or present in such country, so as to have the benefit, and be under the protection of the laws thereof.
Where the defendant is, at the time of the judgment in the action, subject or citizen of such country.
Where the party objecting to the jurisdiction of the courts of such country has, by his own conduct, submitted to such jurisdiction, i.e., has precluded himself from objecting thereto
(a) By appearing as plaintiff in the action or counter-claiming; or
(b) By voluntarily appearing as defendant in such action; or
(c) By having expressly or impliedly contracted to submit to the jurisdiction of such courts.
The above rule has stood for a considerable length of time and is more or less settled position even so far as India is concerned.
The judgment has to be of a “competent court”, that is, a court having jurisdiction over the parties and the subject-matter. Even a judgment in rem is open to attack on the ground that the Court which gave it had no jurisdiction to do so.
Conclusiveness of foreign judgment and court of competent jurisdiction:
A foreign judgment is made by section 13 conclusive between the parties as to any matter directly adjudicated and it is not predicated of the judgment that it must be delivered before the suit in which it is set up was instituted. Section 13 incorporates a branch of the principle of res judicata, and extends it within certain limits to judgments of foreign courts if competent in an international sense to decide the dispute between the parties.
The rule of res judicata applies to all jurisdiction in a “former suit” which expression by Explanation 1 to section 11 denotes a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. The explanation is merely declaratory of the law.
A judgment of a foreign court to be conclusive between parties must be a judgment pronounced by a court of competent jurisdiction; and competent contemplated by section 13 is in an international sense, and not merely by the law of the foreign State in which the court delivering judgment functions.
Undoubtedly, a court of a foreign country has jurisdiction to deliver judgment in rem which may be enforced or recognised in an Indian Court, provided that the subject-matter of the action is property whether movable or immovable property within the foreign country.
It is also well settled that a court of a foreign country has no jurisdiction to deliver a judgment capable of enforcement or recognition in another country in any proceeding the subject-matter of which is title to immovable property outside that country.
But there is no general rule of private international law that a court can in no event exercise jurisdiction in relation to persons, matters or property outside jurisdiction. The courts of a country generally impose a threefold restriction upon the exercise of their jurisdiction: (1) jurisdiction in rem (binding not only the parties but the world at large) by a court over a res outside the jurisdiction will not be exercised, because it will not be recognised by other courts; (2) the court will not deal directly or indirectly with title to immovable property outside the jurisdiction of the State from which it derives its authority; and (3) the court will not assist in the enforcement within its jurisdiction of foreign penal or revenue laws.
An action in personam lies normally where the defendant is personally within the jurisdiction or submits to the jurisdiction or through outside the jurisdiction may be reached by an order of the court. In an action in personam the court has jurisdiction to make an order for delivery of movables where the parties submit to the jurisdiction.
A person who institutes a suit in a foreign court and claims a decree in personam cannot, after the judgment is pronounced against him, say that the court had no jurisdiction which he invoked and which the court exercised, for it is well recognised that a party who is present within or who had submitted to jurisdiction cannot afterwards question.
Absence of decision on merits:
In order to be conclusive the foreign judgment must be on the merits. A decision on the merits involves the application of the mind of the court to the truth or falsity of the plaintiff’s case and a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex parte.
A judgment given in a case in which the defendant puts in no appearance, no evidence is called or considered and in which judgment is given by default by way of summary procedure is not a judgment “on the merits”. A judgment of a foreign court on compromise is a judgment on merits and must be held to be conclusive.
Notwithstanding the definition of judgment in section 2, C.P.C., the expression ‘foreign judgment’ in section 13 must be understood to mean an adjudication by a foreign court upon the matter before it.
There is nothing in section 13 to support a contention that every step in the reasoning which led the foreign court to its conclusion must have been ‘directly adjudicated upon’. ‘Directly’ does not mean ‘expressly’.
Hence, where the ‘matter’ which was directly adjudicated upon by the foreign court was the validity of an award and the order of the court in effect was that the award had been properly filed and that the objections to it must be dismissed, that order is a ‘judgment’ within section 13, C.P.C., which is conclusive between parties as to the validity of the award.
The expression ‘foreign judgment’ in section 13 means an adjudication by a foreign court upon the matter before it and not a statement of a foreign judge of the reasons for his order. To hold otherwise would have the effect of making section 13 inapplicable to an order where no reasons are given. What is conclusive under section 13 is the judgment, i.e., the final adjudication and not the reasons.
The question whether a foreign court is the ‘proper court’ to deal with a particular matter according to the law of the foreign country is a question for the courts of that country. Hence, where a foreign court of final authority decides that a particular court is a ‘proper court’, its decision must be regarded as conclusive for purposes of section 13(a).
Under section 13(e), Civil Procedure Code, the foreign judgment is open to challenge “where it has been obtained by fraud”. It is wrong to think that judgments in rem are invoilable. Fraud, in any case bearing on jurisdictional facts, vitiates all judicial acts whether in rem or in personam.
Mistake of law:
A mistake of law in a foreign judgment is no ground for vacating it.
There must be something in the procedure anterior to the judgment which is repugnant to natural justice when the foreign judgment shall not be conclusive. Such cases may arise where a decree is pronounced in the absence of a party, where a guardian ad litem of a minor is not appointed or where the legal representatives of a deceased defendant are not brought on the record.
But the mere fact that the foreign court did not follow the procedure of Indian courts or did not observe the Indian rules of evidence will not invalidate a foreign judgment on the ground of proceedings being opposed to natural justice.
Above all this in order to obtain territorial validity of a foreign judgment at least one of the following conditions must be satisfied, viz., (1) the defendant should be a subject of the foreign country; (2) the defendant was resident in the foreign country at the time when the action was begun against him; (3) the defendant was served with process while temporarily present in the foreign country; (4) the defendant in his character as plaintiff in the foreign action himself selected the forum where the judgment was given against him; (5) the defendant voluntarily appeared; or (6) the defendant had contracted to submit to the jurisdiction of the foreign court.
Section 44-A—Execution of a foreign judgment:
Foreign judgments may be enforced by a suit. They may also be enforced by proceedings in execution in certain specified cases, which are mentioned in section 44-A. That section provides that where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in a district court, the decree may be executed in India as if it had been passed by the district court on filing of a certified copy of the decree together with a certificate from such superior court stating the extent, if any, to which the decree has been satisfied or adjusted, which certificate shall be conclusive proof of the extent of satisfaction or adjustment.
Only in such cases a foreign judgment can be enforced by proceedings in execution. Section 44-A is intended to be part of a reciprocal arrangement under which on the one hand decrees of Indian courts should be executable in the United Kingdom and any other reciprocating territory and on the other hand decrees of Courts in the United Kingdom and other notified areas should be executable in India.
Reciprocity of treatment between nations is the real basis, and the obligation arises from international dealings. Otherwise a foreign judgment can only be enforced by a suit upon the judgment and a regular suit has to be brought for the relief which has been granted by the foreign judgment.
Period of Limitation:
The period of limitation for filing a suit on a foreign judgment is three years from the date of the judgment.
Execution of order for payment of costs passed by foreign Court in suit for defamation:
When an issue is decided or adjudicated upon, it would mean that the issue has been conclusively decided between the parties. Adjudication in every case does not mean that evidence must be led. The term “adjudication” means to decide on, pronounce, sit in judgment.
This decision or pronouncement can be made even without evidence being led by the parties if there is sufficient material for the adjudicating authority to draw any conclusion in respect of the issue involved between the parties.
Therefore, the adjudication of a matter on merits would not necessarily mean that evidence must be led. In fact, if the parties agree that no evidence need be led in a particular case and merely rely on the pleadings and submissions made, it could not be said that a decision in such a case would not be on merits.
The issue or the “matter” which the learned Chamber Judge was required to consider and to adjudicate upon between the parties was forum non-conveniens. A perusal of the judgment of the learned Chamber Judge indicates that the decision was taken by him on merits.