Enforcement of Foreign Judgments in India

Topics: Civil procedure, Lawsuit, Appeal Pages: 11 (3345 words) Published: October 1, 2010
Project: Legal Aspects of Business

Enforcement of Foreign Judgements

ABIN JOY(10P185)

1. Introduction: Enforcement of Foreign Judgements 3 2. Enforcement of Foreign Judgements in India 5 3. The Code of Civil Procedure 1908, Bare Act Indian Law

a. Section 44A 6 b. Concept of Res Judicata7
c. Section 138
d. Section 118
e. Section 149
4. Judgements passed by the Indian Courts
regarding enforcement of foreign judgements10
5. References12

The enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another ("foreign") jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement. The "recognition" of a foreign judgment occurs when the court of one country or jurisdiction accepts a judicial decision made by the courts of another country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit. Upon recognition by the court, the party which was successful can subsequently seek its enforcement in the recognizing country. For instance, if the foreign judgment is a money judgment and the debtor has assets in the recognizing jurisdiction, the judgment creditor has access to all the enforcement remedies as if the case had originated in the recognizing country. The court may order for, say, garnishment; where the third party which otherwise owes money to the defendant may be asked to directly pay the plaintiff. Another example may be where the court orders for the judicial sale of property, auction for a piece of real estate existing in the recognizing country. If some other form of judgment was obtained, e.g. affecting status, granting injunctive relief, etc., the recognizing court will make whatever orders are appropriate to make the original judgment effective. Foreign judgments may be recognized either unilaterally without any international agreement, or based on principles of comity. Comity refers to the principle of legal reciprocity, which basically states that a particular jurisdiction will extend some courtesies to other nations (or other jurisdictions within same nation), by recognizing the validity and the effect of their executive, legislative and judicial acts. In case no formal treaty exists between the countries, or they are not a part of any convention (namely, Hague Convention on Foreign Judgments in Civil and Commercial Matters), the courts of most states will accept jurisdiction to hear cases for the recognition and enforcement of judgments awarded by the courts of another state if the defendant or relevant assets are physically located within their territorial boundaries. Whether recognition will be given is determined by the lex fori, i.e. the domestic law of the court where recognition is sought, and the principles of comity. The following issues are considered: * Whether the foreign court properly accepted personal jurisdiction over the defendant; * Whether the defendant was properly served with notice of the proceedings and given a reasonable opportunity to be heard which raises general principles of natural justice and will frequently be judged by international standards (hence, the rules for service on a non-resident defendant outside the jurisdiction must match general standards and the fact that the first instance court's rules were followed will be irrelevant if the international view is that the local system is unjust); * Whether the proceedings were tainted with fraud; and

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