Foreign Judgement
Introduction
Indian legal system is often appreciated for the importance it gives to enforcement of foreign
decrees and judgment. Foreign judgments may be recognized based on bilateral or multilateral
treaties or conventions or other International Instruments.
Object: The object behind this provision is to give respect to the judgement of competent
foreign court and a legal obligation arises to satisfy the claim. In Private International Law, certain
rules are regarded as common to civilized nations. This recognition is accorded on the rules of
justice, equity and good conscience.
Provision
The enforceability of foreign Judgments & decrees passed by foreign courts and the nature and
scope of Section 13, Section 14, Section 44-A of the Civil Procedure Code, 1908.
Section 2(5) “foreign Court” means a Court situate outside India and not established or
continued by the authority of the Central Government[1].
Section 2(6) “foreign judgment” means the judgment of a foreign Court.
Foreign Judgements: Meaning
A foreign judgement is conclusive as to any matter directly adjudicated upon thereby but it
does not include the reasons for the judgement given by the foreign court. What is conclusive
under Section 13 is the judgement and not the reasons.
Binding Nature of Foreign Judgements
Section 13 of the CPC clearly says that a foreign judgment shall be conclusive/ binding as to any
matter which has been directly adjudicated upon between the parties except under certain
circumstances which have been specified in this section.
Foreign courts would have jurisdiction in the following circumstances:
i. Where a person is the subject of the foreign country in which the judgement has been
obtained;
ii. Where he was a resident in the foreign country when the action was commenced and the
summons was served on him;
iii. Where the person in the character of the plaintiff selects the foreign court as the forum for
taking action in which forum he issued later;
iv. Where the party on summons voluntarily appeared; and
v. Where by an agreement, a person has contracted to submit himself to the forum in which the
judgement is obtained.
Foreign Judgement not on Merits
A judgement is on merits when decision is given after taking evidence and after applying mind on
truth or falsity of facts as well as the contention of the parties. Decision which was passed on
default of part of defendant without trial on evidence was held not on merits.
Foreign Judgements When Not Binding
Section 13 of the Code holds a foreign judgement to be conclusive except under the six
circumstances which have been specified in this section.
i. Foreign Judgement has not been pronounced by a Court of competent jurisdiction:
For a judgement passed by a foreign court to be conclusive and binding, the dispute between the
parties must be adjudicated by a Court of competent jurisdiction. It is a basic principle of law
that a judgement passed or any matter thereby adjudicated upon by a court which has no
jurisdiction is null and void.
ii) Foreign Judgement has not been given on the merits of the case:
As it has been stated earlier, a foreign judgement creates res judicata between the parties to a
claim. However, for res judicata to apply, the judgement by the foreign court must have been
given on the merits of the case. A case is said to be decided on the merits when the judge takes
all the evidence into consideration in the absence of any technical or emotional bias and decides
what is right or wrong after thorough examination of the case.
iii) Foreign Judgement against International or Indian Law:
When a judgement passed by a foreign court is based upon an incorrect legal view or in
defiance of Indian laws where such laws are applicable, it is not conclusive and the matter
adjudicated therein is not enforceable in India.
IV. Foreign Judgement opposed to natural justice:
Clause (d) of Section 13 requires the judgement passed by a foreign court to be in observance of
proper judicial procedure. Any judgement or decree passed in ignorance or violation of the
principles of nature justice is null and void. Thus, when parties to the dispute are not given
reasonable notice or when a party is not given equal opportunity to present its case or when the
authorities involved do not act in good faith or impartial/unbiased manner, such a judgement is
not conclusive as it violates the basic requirements of the principle of natural justice.
V) Where it has been obtained by fraud:
It is a fundamental principle of law that a judgement obtained by fraud is not conclusive,
irrespective of whether it was passed by a domestic court or a foreign court. Although it is not
possible to show that the court was ‘mistaken’, it can however be proven that the court was
‘misled’.
Vi) Foreign Judgement founded on breach of Indian Law:
A foreign judgement in breach of the laws in force in India is not conclusive and it
considered being null and void. The objective of this clause is to ensure that no foreign law can
offend the public policy of our country. Thus, a decree for divorce which has been passed in a
foreign court cannot be enforced in India if Indian law does not approve of such divorce.
Presumption as to Foreign Judgement
Section 14 of the Code declares that the Court shall presume upon the production of any
document purporting to be a certified copy of a foreign judgement that such judgement was
pronounced by a court of competent jurisdiction unless contrary is proved. Such presumption
may be displaced by proving want of jurisdiction.
Enforcement of Foreign Judgements
A foreign judgement which is conclusive under Section 13 can be enforced in India in the
following ways:
1. Suit on foreign judgement: A foreign judgement may be enforced by instituting a suit on such
foreign judgement. In such suit, the court cannot go into the merits of the original claim and it
shall be conclusive as to any matter directly adjudicated upon between the same parties. Such a
suit must be filed within a period of 3 years from the date of judgement. [Article 101 of Limitation
Act, 1963]
2. Execution Proceedings:
A foreign judgement may also be enforced by proceedings in execution in certain specific
circumstances mentioned in Section 44A of the Code which provides that when a certified copy
circumstances mentioned in Section 44A of the Code which provides that when a certified copy
of a decree from any of the superior courts of any reciprocating territory is filed in a District
Court, it shall be executed in India. It is open to the defendant to file any objections open to him/
her under Section 13 of the Act when the foreign judgement is sought to be enforced under
Section 44A.
Case laws
Brijal Ramjidas v.
Govindram Gordhandas Seksaria
the Supreme Court held that Section 13 speaks not only of judgement but any matter thereby
directly adjudicated upon.
Viswanathan v. Rukun ul Mulk Sayed Abdul
the Supreme Court held that while
considering whether a judgement of a foreign court is conclusive, the courts in India will not
require to go into the merits of the claim and it shall be conclusive as to any matter directly
adjudicated between such parties subject to exceptions enumerated under Section 13, clause (a)
to (f).
Sankaran Govindan v. Lakshmi Bharathi
The Supreme Court held that unless a court has jurisdiction delivered by that court would not be
recognized or enforced in India.
A.V. Pappaya Sastry v. Government of Andhra Pradesh
The Supreme Court held that judgement, decree or order obtained by practicing fraud on the
court or authority is nullity and non est in the eyes of law.
Sufficient cause
Introduction
The term sufficient cause has nowhere been defined in the act; however, it seems that the courts
have construed it quite liberally in order to meet the ends of justice, so much so that meritorious
matters are not disregarded solely on the basis of a slight delay
Sufficient Cause
The term seems to have a wide and comprehensive import. Whether or not the furnished reason
The term seems to have a wide and comprehensive import. Whether or not the furnished reason
would constitute a sufficient cause will depend on facts of each case. There is no prescribed
formula which can be applied for accepting or rejecting the explanation provided for proving the
delay. In a case where a party has been negligent, the approach cannot be the same and liberal
interpretation of the term will be discouraged.
Condonation of Delay
Condonation of delay refers to the extension of the statutorily prescribed time limit in certain
situations. Section 5 of the Limitation Act provides for condonation of delay. The discretion to
condone a delay is totally upon the discretion of the Court.
General principles regarding condonation of delay
The Court must ensure that the party has not filed the appeal late, to somehow benefit from late
filing. There must be no vested interest in the late filing.
Merits of the matter are to be heard only if the Court is satisfied by the sufficient cause and the
delay has been condoned. On the refusal of condonation of delay, the appeal stands rejected.
The Court doesn’t need to take a pedantic approach and examine every detail. That will merely
cost more of the Court’s and party’s time. However, the decision must be in a pragmatic and
rational manner.
If the situation arises wherein the Court has to choose between the technical considerations and
substantial justice. The latter should be chosen, no injustice should be done for a bona fide
mistake.
The Court should not presume that the delay in filing was deliberate. It must keep an open mind
and consider all the reasons for the delay before deciding.
Section 3A
An amendment was made to the Limitation Act in 1976 wherein Section 3A was inserted to the
Act. It states that if an appeal is filed after the prescribed period of limitation, it must be filed
along with an application for condonation of delay which shows sufficient cause for the
appellant, for not filing the appeal on time. It is totally upon the discretion of the Court to accept
or reject the application for condonation of delay. With the lack of any proper definition,
sufficient cause can be interpreted differently by every court.
The object of Section 3A of the Limitation Act
To inform the appellant that the appeal filed beyond the prescribed period of limitation will not be
entertained by the Court.
To inform the respondent that they do not need to be prepared on the merits of the case as the
court shall first deal with the application for condonation of delay.
Factors considered as sufficient cause
Inability without fault
Merits of case
Poverty, Minority or Paupers
Ignorance of Law
Fraud
Illness and imprisonment
Covid 19 as a sufficient cause for condonation of delay
The law protects citizens’ rights and requires some degree of attention and care from those
seeking protection of their rights. To avoid an unlimited window of opportunity to approach the
courts for redress, the law of limitation establishes time limits for legal actions.
Sufficient cause for non-appearance of the parties
Parties may sometimes not be able to appear before the Court on the date fixed for hearing. The
sufficient cause for the purpose of non-appearance of a party refers only to the date on which
the party did not appear and an ex-parte decree was passed.
Sufficient cause in the stay of execution of a decree
A decree holder (on whose favour the decree has been passed) obtains certain rights when the
decree has been passed. A judgement debtor can file an appeal if he is not satisfied with the
decree, but mere filing of the appeal does not mean that the decree gets stayed.
Sufficient cause in an application for adjournment
The doctrine of sufficient cause must be interpreted liberally, but while granting adjournments,
the Court is mandated not to do so as it is against the public policy.
Case laws
Municipal Corporation of Ahmedabad v. Voltas Ltd, the High Court of Gujarat opined that
sufficient cause must be interpreted liberally to ensure substantial justice to the parties.
Collector Land Acquisition v. Mst. Katiji & ors, the Supreme Court held that:“The term ‘sufficient
cause’ in the provision is reasonably flexible, allowing courts to apply the law in a meaningful
manner. This allows the Courts to serve justice, which was why they were formed.
Mulraj v. Murti Raghunathji, the Court held that the decree-holder still has the right to execute
his decree even after an appeal has been filed by the opposite party. The execution of decree
can stay if the Appellate Court is satisfied that there is sufficient cause and order for the same.
Surendra Kumar v. Rajendra Kumar Agarwal, adjournment can be granted if the party seeking it is
ready to pay reasonable costs, including exemplary costs, when an adjournment is sought
multiple times, to cause loss or harm the opposite party.
Conclusion
In interpreting the term ‘sufficient cause’ the Courts have been very lenient and have often
condoned every delay having even barely reasonable cause.
STAGES OF A SUIT
Introduction
Any court case that involves disputes between individuals over money or any other injury to
personal rights are known as civil cases. For a Civil Suit, there are two criterions- the cause of
action and the claim for damages/compensation.
1) Presentation of the plaint Order 7 of CPC 1908:-
Presentation of the plaint in the
court is the first step or starting point of all the pleading in a case in India. The whole judicial
system under the civil law set in motion by the filling the plaint.
2) Service of summons on defendant (Order 5):
The second stage of the civil suit is the
service of summons on the defendant. Summons is an instrument used by the court to call the
person whose name is mentioned in the plaint as a defendant. It is a way to inform the person
against whose the civil proceedings have been commenced and he is required to present his
defence in the court. It is a process directed to a proper officer of the court to notify the person
named, that he is required to appear, on a day named and answer the claim in such action.
3) Appearance of parties:
When the summons duly served to the defendant, the next stage of the civil suit commenced
which is the appearance of the parties before the court on the day fixed. If the defendant does
not appear on the day fixed in the summons the court may proceed ex parte. In the case of the
plaintiff, if he is absent court may dismiss the suit. Where neither parties appear the court may
dismiss the suit.
4) Ex-party Decree(Order 9):
As mentioned above if the defendant, on a fixed day in the summons does not appear the court
may proceed ex-parte. Where the plaintiff appears and the defendant does not appear when a
suit is called up for hearing and summons is duly served the court may make an order that suits
will be heard ex-parte under Order 9 of the CPC 1908.
5) Filing of written statement by the defendant Order:8
First of all, we should know that what is written statement. Actually, it is a pleading of the
defendant in the answer to the plaint filed by the plaintiff against him. It is a reply statement of
the defendant in a suit specifically denying the allegations made against him by the plaintiff in his
plaint. The provision regarding the written statement has provided under Order 8 of the Code of
Civil Procedure, 1908.
6) Production of documents by parties After filling the written statement by the
defendant the next stage of the suit is the production of documents by the parties.
7) Examination of parties:
After the filling of the written statement, production of the documents and appearance of the
parties, the important stage commences that is Examination of the parties. At the first hearing of
the suit, the court ascertains from each party or his pleader whether he admits or denies such
allegations of fact as made in the plaint and written statement.
8) Framing of issues by the Court (Order 14):-
The next of the civil suit is the framing of
issues. It is the duty of the court to framing issues. Order 14 of CPC provides the provision
regarding the framing issues.
9) Summoning and Attendance of Witnesses (Order 16):-
After the framing of issues
parties shall present in the court a list of witnesses whom they propose to call either to give
evidence or to produce documents. Such a list shall be present in the court on the day appointed
and not later than 15 days after the date on which issues are settled.
10) Hearing of suits and examination of witnesses:-
After the summoning of the
witnesses, the next stage of the civil suit is hearing of suits and examination of witnesses
commence. First right to begin is of plaintiff unless the defendant admits the facts alleged by the
plaintiff and contend that either in point of law.
11) Argument:-
As soon as the stage of the hearing of suits and examination of witnesses is over then the suit is
kept for the next stage i.e. argument. Once the evidence has been submitted and cross-
examination is conducted by both parties, then both sides are allowed to present a summary of
the case and evidence to the judge in the final session.
12) Judgment:-
The next stage of the civil suit is judgment, which means the statement given by the judge on the
ground of which a decree is passed.
13) Preparation of Decree:-
After the delivery of the judgment, the next stage is the preparation of Decree, and it is to
be prepared by the concerned clerk.
14) Execution of Decree:-
In this stage, decree-holder compels the judgment-debtor to out the mandate of the decree or
decree or order as the case may be. It is the process by which a decree-holder recovers the
fruits of the judgment.
Temporary Injunction
Introduction
A temporary injunction in CPC serves as a vital tool to maintain order and protect the interests of
parties involved in a [Link] underlying principles of a temporary injunction revolve around
ensuring fairness and preventing irreparable harm.
Temporary Injunction Meaning
A temporary injunction is a court order that’s given while a case is ongoing to keep things the
way they are until the case is finally decided. Its main purpose is to stop someone from causing
serious harm to another party during the legal process.
The rules for temporary injunctions
Section 94 of the law is about preventing interference with justice. Part (c) deals with giving out
temporary injunctions and has rules for making sure people follow them, like putting someone in
civil prison or selling their property to make them comply.
Section 95 allows the court to consider giving money to the defendant if the plaintiff’s claim gets
dismissed.
Order 39 of the Civil Procedure Code (CPC) has a bunch of rules about temporary injunctions.
Temporary Injunction in CPC
Temporary injunctions in India are regulated by the Civil Procedure Code of 1908 and the specific
rules for their grant and application are as follows:
Order XXXIX, Rule 1: This rule allows the court to grant a temporary injunction under CPC when
it’s considered fair and appropriate to do so in order to prevent a breach of an obligation or harm
caused by a genuine fear of such a breach.
Order XXXIX, Rule 2: This rule lays out the conditions that must be met for a temporary
injunction to be granted. These conditions include having a strong initial case, a balance of
convenience and the potential for irreparable harm.
Order XXXIX, Rule 3: This rule explains the process for getting a temporary injunction in CPC and
what you need to do, including submitting an application supported by a sworn statement.
Order XXXIX, Rule 4: This rule covers the court’s authority to seize property when it’s necessary
to ensure that a temporary injunction isn’t undermined.
Order XXXIX, Rule 5: This rule allows the court to change or cancel a temporary injunction at any
point during the proceedings if it’s appropriate based on the situation.
Order XXXIX, Rule 6: This rule deals with how long a temporary injunction in CPC lasts. It can
stay in effect until a specific time or until the court says otherwise.
Order XXXIX, Rule 7: This rule explains what happens if someone disobeys or violates a
temporary injunction. It includes potential contempt of court proceedings and other remedies for
the harmed party.
Grounds of Temporary Injunction in CPC
3 key requirements for application for temporary injunction :
Prima Facie Case
This means that in a lawsuit, there must be a serious and disputed question for a temporary
injunction in CPC. The facts surrounding this question should indicate a reasonable likelihood of
the plaintiff or defendant being entitled to relief.
Irreparable Loss
If an individual were to suffer an irreparable loss related to the lawsuit before their legal rights
are determined at trial, it would result in grave injustice.
Balance of Convenience
The court must weigh the circumstances of both parties and compare the potential harm or
inconvenience that could result from withholding the injunction versus granting it.
How Long Does Temporary Injunction Last?
The duration of a temporary injunction is determined by the court when it grants the injunction.
According to “Order XXXIX, Rule 6 of the Civil Procedure Code of 1908,” a temporary injunction
can remain in effect until a specified time or until the court issues further orders.
The duration of a temporary injunction in CPC depends on the type of injunction granted:
Pendente Lite Injunction: This type of injunction remains in force until the conclusion of the
ongoing legal proceedings and the final decision of the court. If the lawsuit is dismissed, the
temporary injunction is also lifted.
Permanent Injunction Lawsuit: In cases involving a permanent injunction, a temporary injunction
issued by the court can be made permanent as part of the final decree.
Injunction Be Issued Against A Court
Courts are granted immunity from temporary injunctions in CPC to protect their independence
and ensure the proper administration of justice. This principle is rooted in the concept of judicial
immunity.
If a court exceeds its jurisdiction or violates established legal principles, a party may seek relief
from a higher court through writs like certiorari or prohibition.
Case laws
Gurudas and Ors. v. Rasaranjan and Ors. (2006) can be summarized as “While considering an
application for injunction, the Court would pass an order thereupon having regard to prima facie,
balance of convenience and irreparable injury“.
Dalpat Kumar And Another v. Pralhad Singh And Others (1991) has established three key
requirements for application for temporary injunction and granting a temporary injunction under
CPC.
“M/S Gujarat Pottling Co. Ltd. & Ors v. The Coca Cola Company & Ors. (1995)”. This idea was
made clear in the case of
Its main purpose is to stop someone from causing serious harm to another party during the legal
process.
Mandati Ranganna v. T. Ramachandra
the court emphasised that when considering an application for the grant of a temporary
injunction in CPC, it’s not sufficient to only consider the fundamental elements.
Conclusion
A temporary injunction in CPC is a court-issued order that temporarily restrains a party from
taking specific actions or compels them to do certain things
