FOREIGNER

VS

INDIAN

Decree & Judgment

Enforceability
???????????

??????
Judgment Obtained from Foreign
Court can be Enforced Against a
Party in India?

???????
Whether a Judgment / Decree on a
Commercial Matter obtained in foreign
country is enforceable in India?

??????
o What law governs the enforcement of
foreign judgments in India?

??????
Whether a Divorce Decree obtained in
the foreign is enforceable in India?

???????
If yeshow?
If Nowhy?

FOREIGN COURT
&
JUDGMENT

Sec.2(5)
Defines..
A court situate outside India
.and not established
or continued by the authority of central
Govt.

Sec.2(6)
Defines..
Foreign Judgment.
Judgment of a Foreign Court.

ENFORCEABILITY
ENFORCEABILITY

Foreign Judgment

Foreign Court

Enforceability

Filing EP

Filing a Suit

Reciprocating
territory

Nonreciprocating
territory

Through official
Govt. declared

CPC governs

Limitation 3 years

Foreign court
decree treated
as a piece of
evidence

Foreign judgments..
.can be enforced in India
if it was decided
in accordance with the principles of private
international law
Competency.
In an international platform
..not merely by the law of Foreign..

Object..
..where a court of competent jurisdiction
..has adjudicated upon a claim
..Legal obligation arises
to satisfy that claim

Sec.44-A
Judgment from courts in......
Reciprocating territories....
???????????

Means.....
Any country or.........outside......India
Which the Central Govt.....
May by notification in official Gazette
Declare as reciprocating........

Reciprocating Territories
1.United Kingdom
2.Aden
3.Fiji
4.Republic of Singapore
5.Federation of Malaya
6.Trinidad and Tobago
7.New Zealand, the Cook Islands (including Niue) and the
Trust Territories of Western Samoa
8.Hong Kong
9.Papua and New Guinea
10.Bangladesh
11.United Arab Emirates

When foreign judgment not conclusive

(S.13)
not been pronounced by a Court of
competent jurisdiction;
not been given on the merits of the case;
founded on an incorrect view of
international law

Cont
or a refusal to recognize the law of India in
cases in which such law is applicable;
opposed to natural justice;
obtained by fraud;
founded on a breach of any law in force in
India.

S.14.
Presumption
upon the production of any document
purporting to be a certified copy of a foreign
judgment,
pronounced by a Court to competent jurisdiction,
unless the contrary appears on the record;
but such presumption may be displaced by
proving want of jurisdiction.

Governs.......

C P C....governs.....execution of.....
Whether......foreign/domestic
In India
Limitation......3 years.....U/S. 101 of
Limitation Act..

Case Law
Y. Narasimha Rao And Ors
vs
Y. Venkata Lakshmi
1991 SCC (3) 451

Facts.
The appellant and the respondent wife & husband
..married at Tirupati on February 27, 1975.
They separated in July 1978.
..filed a petition for dissolution of marriage in the
Circuit of St. Louis Country Missouri, USA.
sent her reply from here .

Reply.....
........the petition was not maintainable,
.....not aware .......had been living in the State of
Missouri for more than 90 days
.........entitled to file the petition before the Court,
.......Hindus and governed by Hindu Law,
.....Indian citizen and was not governed by laws
in force in the State of Missouri and,

Cont..
......... had no jurisdiction
....could not be dissolved in any other way
except .......under the said Act,
........ no jurisdiction to enforce the foreign laws
Ground.....was not sufficient to grant any divorce
........under the Hindu Marriage Act.

Certain facts.....
.......Circuit Court of St. Louis Country Missouri,
USA....... assumed...
jurisdiction over the matter on the ground
....appellant had been a resident of the State of
Missouri for 90 days
that the marriage is, irretrievably broken''.
.......respondent had not submitted to the
jurisdiction of the Court.

Next
The Circuit Court passed a decree for
dissolution of marriage in the absence of
the respondent.
Next..
.... married another women in Yadgirigutta,
Now.....
1st wife filed a criminal complaint against
them for the offence of bigamy

Magistrate Court
.........in view of the decree for dissolution of
marriage passed by Missouri Court.
The learned Magistrate.....
discharged the appellants holding that the
complainant, ......had failed to make out a prima
facie case against the appellants.

Against the said decision

Before H.C........
Preferred a Criminal Revision Petition .....
set aside the order
.......holding that a Photostat copy of the judgment of
the Missouri Court was not admissible in evidence
........to prove the dissolution of marriage

Before SC

Aggrieved..... by this decision

..... appeal is filed.

according to ....petition
wife joined him in the United States,
both of them had stayed together as
husband and wife at New Orleans.
she left his residence in New Orleans.
Acc.....to.... averments
......had last resided together at New Orleans

Cont
Louisiana never within the jurisdiction of
the Circuit Court of St. Louis Country in
the State of Missouri.
The averments to that effect in the
petition filed.......
before the St. Louis Court are obviously
incorrect

Acc to H.M Act........

the marriage was solemnized,

the respondent, at the time of the

presentation of the petition resides,

parties to the marriage last resided

together,

Cont....
The Circuit Court of St. Louis Country,
Missouri
..........no jurisdiction to entertain the
petition
..........irretrievable breakdown of marriage
is not a ground for.....
dissolution of marriage

Under Section 13

foreign judgment is not .........

without competent jurisdiction;
not on merit
founded on an incorrect view of
opposed to natural justice,
obtained by fraud,
breach of any law in force in India

In this.....

He was neither domiciled in that State

nor had he an intention to make it his
home.
He had also no substantial connection
with the forum.

Interpretation.......
..........cannot also lose sight of the fact
...........that today more than ever in the past,
the need for definitive rules for recognition of
foreign judgments
.........in personal and family matters, and
particularly in matrimonial disputes has surged
to the surface

Cont....
The rules of Private International Law ..... not
codified
.......scattered in different enactments
such

as

the

CPC,

Contract

Act,

Indian

Succession Act, Indian Divorce Act, Special

Marriage Act etc

Cont....
... the Rules of PIL.....cannot be adopted
Mechanically & blindly
In India there are ......religions
Personal Laws ...enforced
Should not offend public policy

Acc to 13(c)
where the judgment is founded on a refusal to
recognise the law of this country
the judgment will not be recognised by the
courts in this country

s. 13 (f)....
judgment will also be unenforceable
since such a judgment would obviously
.....be in breach of the matrimonial law in force in
this country.

Finally.....
appeal dismissed
and direct the learned Magistrate
to proceed with the matter pending before him
according to law
as expeditiously as possible,
preferably within four months from now as the
prosecution is already a decade old.

Case - law

SATYA
Vs
TEJA SINGH
AIR 1975 SC 105

Issue.....?

Are Indian Courts bound to give

recognition divorce decrees granted by
Foreign Courts?

This appeal...
Arises out of dismissal of
..... interim maintenance application.........

Facts.....
Appellant..married....on 1/7/1955
As per Hindu rites
Both......Indian

citizens

&

domiciled

India....... time of marriage

Two children....1956 & 1958
He left U.S for higher studies....1960..

in

Cont...
....spent ....one year....
.....secured job in Canada
.Appellant never joined in U.S..
Continued to live in India

On 21/01/1965

Appellant.moved an application
Stating..her husband neglected..
Sheprayed ..for maintenance..

Res..
o
o
o
o
o

Submitted..throughcounsel
Appellant had ceased wife
.not liable to maintain her..
Expressed his willingness.
To take charge of his children


His.marriage with appellant.was.dissolved
By decree of divorce
granted by Dist. Court, Nevada,U.S.A
..on 31/12/1964

JFCM, Jullundur..
held..that.the
decree
of
divorce.was not binding .appellant
Decreenot conclusive.
Res.had not permanently..settled in the
state of Nevada, U.S.A

Cont
Marriage.dissolvedH.M.Act.only
Granted maintenance.
Addl. Sessions Judgeconfirmed

Before P&H.. H.C..

Husband.succeeded..
Decision reversed.
Crucial time.he ..domicile within
.U.S.A..
Acc to English old rule
Wifeis alsodomicilein the eye of law
So,..decree was binding..

Before S.C
To answer
Recognition.to be accorded.to
Neveda decree..
Depend.rule of our private international
law
is not the same in all countries.

Cont
There is no system..claim universal
recognition
Indian conflict of laws may require..the
law of foreign countryought to be
applied .
Such recognition

Cont.
.not as an act of courtesy..
But on considerations of justice..
Foreign law must not offend against our
public policy
Divorce decree recognisedas a
matter of comity.public policy and good
morals may be considered

Cont
Respondent was not a bonafide
residentdecree was obtained by
concealment of fact
Trail Court judgment restored
Appeal allowed

Principles..
When foreign judgement not conclusive
Enforceability of
Sec.13 CPC not limited to civil..alone
But
also
be
taken
in
criminal
proceedings..

Sec.13...

where .not been pronounced by ..a

Court of competent jurisdiction;
.. not been given on the merits
.to be founded on an incorrect view of
international law o
r a refusal to recognise the law of India
in cases in which such law is applicable;

Cont.....
..are opposed to natural justice;
.obtained by fraud;
where it sustains a claim founded on a
breach of any law in force in India.

Mesne
Profit

Person
Enjoyment of
immovable
property

In wrongful
possession

Breach of
legal right

Remedy

Liable for mesne profit

Mesne Profit
Sec.2(12) means
..those profits which the
person in wrongful possession of
such property
Relates to damages or compensation

Cont

Basic principle of natural justice

to obtain reparation for wrongs or
infringement of legal rights

Essentials.....
Ownership......
Right to possess & Use.....
Right to exclude .....others from possessing &
using it

Cont
Legal Remedies
and remedies for the breach of legal rights
.two sides of a coin
Rights for profit may arise

Cont
1. Suit for ejectment
2. or recovery of possession of immovable
property
3. from a person in possession without title,
together with a claim for past or past & future
mesne profits.
4. A suit for partition by one or more tenants in
common against others

Case - Law

Mohammad Amin & ors

V
Vakil Ahmaed
1952(1) SCR 1133

Issue...

Whether mesne profits can be

granted when the plaintiff had not
specifically prayed?

Cont....
Def Plea......
........the High Court erred in awarding to the plaintiffs
mesne profits even though there was no demand for the
same in the plaint.
Plff. contention.......
........that there was no demand for mesne profits as
such
but urged that the claim for mesne profits would be
included within the expression
"awarding possession and occupation of the property
aforesaid together with all the rights appertaining thereto

S.C ........
........that the claim for mesne profits cannot be included
within this expression
and the High Court was in error
in awarding to the plaintiffs mesne profits
though they had not been claimed in the plaint.
The provision in regard to the mesne profits will therefore
have to be deleted from the decree.
But they are entitle for costs....

Case- Law
Ganapathi Madhav Sawant(died)
through his LRs
Vs
Dattur Madhav Sawant
(2008) 3 SCC 183

Supreme Court
has laid down that when the plaintiff
had not prayed for an inquiry
mesne profits in terms of or. 20 R.12
of CPC
absence of such prayer same could
not be granted.

The End