Foreign Judgment -S.

13 contains the principle of res-judicata in foreign

judgments. This provision embodies the principle of private international
law that a judgment delivered by a foreign court of competent jurisdiction
can be enforced in India. The section is not confined in its application to
plaintiffs. A defendant is equally entitled to non-suit the plaintiff on the
basis of a foreign judgment.
Objects of Foreign Judgment--The Judgment of a foreign court is enforced
on the principle that where a court of competent jurisdiction has
adjudicated upon a claim, a legal obligation arises to satisfy that claim.
The rules of private international law of each State must in the very nature
of things differ, but by the comity of nations certain rules are recognised as
common to civilised jurisdictions.
Through part of the judicial system of each State these common rules
have been adopted to adjudicate upon disputes involving a foreign
element and to effectuate judgments of foreign courts in certain matters, or
as a result of international conventions. Such recognition is accorded : not
as an act of courtesy but on considerations of justice, equity and good
conscience. For
Examples-
i
(i) A sues B in a foreign court. The suit is dismissed. The judgment will
operate as a bar to a fresh suit by A against B in India on the same cause
of action.
• (ri) A sues B in a foreign court. The suit is decreed. A then sues B on that
judgment in India. B will be precluded from putting in issue the matters,
which were directly and substantially in issue before the foreign court and
adjudicated upön by the court.

Binding and Conclusive Nature of Foreign Judgment-

According to S. 13, a foreign judgment " heretousive and wily operate as

res-judicata between the parties thereto except in the Operate an oned
therein. Dicey is of the opinion that a forcien
cannot be impeached for error either (i) of fact or (ii) of law." casement is
conclusive as to a matter thereby adjudicated upon and Circumstances in
which Foreign Judgments are not
Binding- S. 13 provides following six circumstances in which foreign
judgmént will not be conclusive-
1. Foreign Judgment not by Competent Court- It is a fundamental principle
of law that the judgment or order passed by the court which has no
jurisdiction is null and void. Thus. a judgment of a foreign court to be
conclusive between the parties must be a judgment pronounced by a court
of competent jurisdiction.
Such judgment -must be by a court competent both by the law of the State
which has constituted it and in an international sense and it must have
directly adjudicated upon the "matter" which is pleaded as res-judicata.
But what is conclusive is the judgment, i.e., the final adjudication and not
the reasons for the judgment given by the foreign court.
Thus, if A sues B in a foreign court, and if the suit is
dismissed, the decision will operate as a bar to a fresh suit by A in India on
the same cause of Action. On the other hand, if a decree is passed in
favour of A by a foreign court against B and he sues B on the judgment in
India, B will be precluded from putting in issue the same matters, that were
directly and substantially in issue in the suit and adjudicated upon by the
foreign court.

[Link] Judgment not on Merits- In order to operate as res judicata, a

foreign judgment must have been given on merits of the case. A judgment
is said to have been given on merits when. after taking evidence and after
applying his mind regarding the truth or falsity of the plantiff's case, the
Judge decides the case one way or the other. Thus, when the suit is
dismissed for default of appearance of the. plaintiff; or for non-production
of the document by the plaintiff even before the wirtten statement was filed
by the defendant, or where the decree was passed in consequence of
default of [Link] furnishing security, or after refusing leave to
defend. such judgments are not on merits.

3. Foreign Judgment Against International or Indian

Law-A judgment based upon an incorrect view of international law or a
refusal to recognize law of India where such law is applicable is not
conclusive. But the mistake must be apparent on the face of the
proceedings. Thus, where in a suit instituted in England on the basis of a
contract made in India, the English court erroneously applid English law,
the judgment of the court is covered by this clause in as much as it is a
general principle of Private International Law that the rights and liabilities
of the parties to a contract are governed by the place where the contract is
made (lex
'loci contractus).
4. Foreign Judgment Opposed to Natural Justice 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
mininum requirements of natural justice i.e.. it must be composed of
impartial persons. act 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 judgment whicH is the
resultof bias or want
•of impartiality on the part of a judge will be regarded as a nullity and the
trial "coram non judice"
But the expression "natural justice" in clause (d) of S. 13 relates to the
irregularities in procedure rather than to the merits of the case. A foreign
judgment of a competent court, therefore. is conclusive even if it proceeds
on an erroneous view of the evidence or the law, if the minium
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. Thus, a foreign
judgment is not open to attack on the ground that the law of domicile had
not been properly applied in deciding the validity of adoption or that the
court disagrees with the conclusion of the foreign court, if otherwise the
principles of natural justice have been complied with.
5. Foreign Judgment Obtained by Fraud-It is a well-established principle of
Priyate International. Law that if a foreign judgment is obtained by fraud, it
will not operate as res-judicata.
The fraud may be either fraud on the part of the party invalidating a foreign
judgment in whose favour the judgment is given or fraud on the court
pronouncing the judgement. Such fraud, however. should not be merely
constructive, but must be actual fraud consisting of representations
designed and intended to mislead: a mere concealment of fact is not
sufficient to avoid a foreign judgment.
•
6. Foreign Judgment Founder on Breach of Indian Law-Where a foreign
judgment is founded on a breach of any law in force in India, it would not
be enforced in India. The rules of Private International Law cannot be
adopted mechanically and blindly.
Every case which comes before an Indian Court must be decided in
accordance with Indian law. It is implicit that the foreign law must not
offend our public policy. Thus, a foreign judgment for a gaming debt or on
a claim which is barred under the Law of Limitation in India is not
conclusive. Similarly, a decree for divorce passed by a foreign court
cannot be confirmed by an Indian court if under the Indian law the
marriage is indissoluble.
Conclusion-A foreign judgment is conclusive and will operate as res-
judicata between the parties and their privies though not strangers. It is
firmly established that a foreign judgment can be examined from the point
of view of competence not of errors. In considering whether a judginent of
a foreign court is conclusive, the courts in India will not require whether
conclusions recorded by a foreign court are correct or findings otherwise
tenable. In other words, the court cannot go into the merits of the original
claim and it shall be conclusive as to any matter thereby directly
adjudicated upon between the saie parties subject to the exceptions
enumerated in Clauses (a) to (1) of S. 13.