CODE OF CIVIL PROCEDURE, 1908

Section 13 - When foreign judgment not conclusive

Case Cited

1. Raj Rajendra Sardar Moloji Narsing Rao v. Shankar Saran, MANU/SC/0013/1962: AIR 1962 SC 1737.

2. Deva Prasad Reddy v. Kamini Reddy MANU/KA/0443/2002: AIR 2002KAR356.

3. Maganbhai Chhotubhai Patel v. Manniben MANU/GJ/0095/1985: AIR 1985GUJ 187.

4. R. Vishwathan v. Rukh-ul-Mulk-Syed Abdul Majid MANU/SC/0038/1962: AIR 1963 SC 1.

5. R. Vishwathan v. Rukh-ul-Mulk-Syed Abdul Majid MANU/SC/0038/1962: AIR 1963 SC 1.

6. Janardhan Mohandas Rajan Pillai v. Madhubhai Patel MANU/MH/0689/2003: AIR 2003Bom490.

7. Indian and General Investments trust Limited v. Sri Ramchandra Mardaraja Deo MANU/WB/0056/1952:
AIR 1952 Cal 508.

8. United India Insurance Co. Ltd. v. Lehru; MANU/SC/0219/2003: AIR 2003 SC 1292.

9. Harendra H. Mehta v. Mukesh. H. Mehta MANU/SC/0370/1999: AIR 1999 SC 2054.

10. Vishwa Nath v. A. Wazid, MANU/SC/0038/1962: AIR 1963 SC 1.

11. Dr. Padmini Mishra v. Dr. R. C. Mishra, MANU/OR/0064/1991: AIR 1991Ori263.

12. Deva Prasad Reddy v. Kamini Reddy MANU/KA/0443/2002: AIR 2002KAR356.

13. Vishwanatha v. Abdul Wazid, MANU/SC/0038/1962: AIR 1963 SC 1.

14. Mohan Lal v. Prem Sukh, AIR 1956 Nag 273; Budhia Swain v. Gopinath Deb MANU/SC/0344/1999.

15. Vellachi Achi v. Ramnathan, MANU/TN/0166/1973: AIR 1973 Mad 141.

16. Marggarate v. Chacko, MANU/KE/0001/1970: AIR 1970 Ker 1.

17. Narhari v. Panna Lal, MANU/SC/0016/1976: AIR 1977 SC 164.

18. Anathnarayana v. Abdul Khadir, MANU/TN/0134/1957: AIR 1957 Mad 214.

19. Jammu & Kashmir Bank v. Rawindran, AIR 1981 Del 121.

20. Y.Narsima Rao v. Y.Venkata lakshmi MANU/SC/0603/1991: (1991) 3 SCC 451.

21. Maganbhai Chhotubhai Patel v. Manniben MANU/GJ/0095/1985: AIR 1985GUJ 187.

22. Y.Narsima Rao v. Y.Venkata lakshmi MANU/SC/0603/1991: (1991) 3 SCC 451; Mrs. Anoop Beniwal v. Dr.
J. S. Beniwal, MANU/DE/0044/1990: AIR 1990 Del 305.

23. HSBC Bank v. Silverline Technologies MANU/MH/0205/2006: AIR 2006 Bom 134; Mohd. Abdulla v. P. M.
A. Rahim, AIR 1985 Mad 379.

24. Janardhan Mohandas Rajan Pillai v. Madhubhai Patel MANU/MH/0689/2003: AIR 2003Bom490.

25. Keymer v. Visvanatham Reddi, AIR1916 PC 121; Oppenheim v. Mahomed Haneef, AIR 1922 PC 120;
R.E. Mohammad Kasim v. Seeni Pakir Bin Ahmed AIR 1927 Mad 265; Algemene Bank v. Satish Daya Lal
Choksi, MANU/MH/0025/1990: AIR 1990 Bom 170.
26. International Woollen Mills v. Standard Wool (U.K.) Ltd. MANU/SC/0304/2001: (2001) 5 SCC 265: AIR
2001 SC 2134.

27. International Woollen Mills v. Standard Wool (U.K.) Ltd. MANU/SC/0304/2001: AIR 2001 SC 2134

28. Navin Khilnani v. Mascherq Bank EFA (OS) No. 16/2005 decided on 25.05.07 (D.B); Islamic Investment
company for the Gulf v. Symphony Gems N.V MANU/MH/0113/2005: 2005(3) BomCR115, 2005(2)
MhLj1077; Middle East Bundh Ltd. v. R. S. Sethia, MANU/WB/0066/1991: AIR 1991 Cal 335.

29. O.P. Verma v. Lala Gehrilal and Anr., MANU/RH/0053/1962; Mashreq Bank v. Navin Khilnani
MANU/DE/2074/2005, 125(2005)DLT172.

30. Trilochan v. Dayanidhi, MANU/OR/0067/1961: AIR 1961 Ori 158.

31. Shaligram v. M/s Daulat Ram, MANU/SC/0012/1962: AIR 1967 SC 739.

32. K. M. A. Jabbar v. Indo Singapore Traders, MANU/TN/0242/1981: AIR 1981 Mad 118.

33. R.Vishwathan v. Rukh-ul-Mulk-Syed Abdul Majid MANU/SC/0038/1962: AIR 1963 SC 1; International

Woolen Mills v. Standard Mills MANU/SC/0304/2001: AIR 2001 SC 2134.

34. Mrs. Anoop Beniwal v. Dr. J. S. Beniwal, MANU/DE/0044/1990: AIR 1990 Del 305.

35. R. Vishwanathan v. Abdul Wazid, MANU/SC/0038/1962: AIR 1963 SC 1.

36. Renusagar Power Co. v. G. E. C. Ltd., MANU/SC/0195/1994: AIR 1994 SC 860.

37. The owners and Partners of Firm named Shah Kantilal v. Dominion of India owing East India Railways
MANU/WB/0024/1954: AIR 1954 Cal 67.

38. Y.Narsima Rao v. Y.Venkata lakshmi MANU/SC/0603/1991: (1991) 3 SCC 451.

39. Sankaran Govindan v. Lakshmi Bharathi MANU/SC/0406/1974: AIR 1974 SC 1764.

40. National Ability S.A v. Tinna Oil and Chemicals Ltd MANU/DE/0920/2008,

2008(3)ArbLR37(Delhi).

41. Sankaran Govindan v. Lakshmi Bharathi MANU/SC/0406/1974: AIR 1974 SC 1764. 40. National Ability
S.A v. Tinna Oil and Chemicals Ltd MANU/DE/0920/2008,

2008(3)ArbLR37(Delhi).

42. Sankaran v. Lakshmi MANU/SC/0406/1974: AIR 1974 SC 1764.

43. Lalji Raja v. Hansraj MANU/SC/0008/1971: AIR 1971 SC 974.

44. Alegemene Bank v. Satish Daya Lal Choksi, MANU/MH/0025/1990: AIR 1990 Bom 170.

45. Lalji Raja and Sons v. Firm Hansraj Nathuram MANU/SC/0008/1971: AIR 1971 SC 974

46. Magan Bhai v. Mani Ben, MANU/GJ/0095/1985: AIR 1985GUJ 187.

47. Sankaran Govindan v. Lakshmi Bharathi, MANU/SC/0406/1974: AIR 1974 SC 1764.

48. Smt Satya v. Shri Teja Singh MANU/SC/0212/1974: AIR 1975 SC 105.

49. Mohammed Abdullah v. P.M. Abdul Rahim MANU/TN/0162/1985: AIR 1985 Mad 379.

50. Y.Narsima Rao v. Y.Venkata lakshmi MANU/SC/0603/1991: (1991) 3 SCC 451.

51. Algemene Bank v. Satish Daya Lal Choksi, MANU/MH/0025/1990: AIR 1990 Bom 170.

52. Smt Satya v. Shri Teja Singh MANU/SC/0212/1974: AIR 1975 SC 105.

53. Y.Narsima Rao v. Y.Venkata lakshmi MANU/SC/0603/1991: (1991) 3 SCC 451.

 Page 156

SYNOPSIS

1. Scope ...................................... 157 (c) Incorrect view of the International law or refusal to
recognize the laws of India ........................... 162

2. Exception to conclusiveness of foreign (d) Opposed to natural justice .. 163

Judgment ........................ 158

(a) Courts of competent jurisdiction (e) Judgment obtained by fraud .. 164

........................... 158

(b) Not being given on the merits of the (f) Breach of any law in India ... 165
case ................................. 159 3. Divorce Proceedings .................. 165

1. Scope.

The principle incorporated under the section is the principle of substantive law and not mere procedural law
(Raj Rajendra Sardar Moloji Narsing Rao v. Shankar Saran).1This section provides that except for the
conditions mentioned in Clauses (a) to (f), a foreign Judgment shall be conclusive as to the matter
adjudicated upon between the parties (Deva Prasad Reddy v. Kamini Reddy).2 The validity of a foreign
decree is therefore beyond the pale of any challenge unless the same is by one of the parties affected by
the decree and on a ground which falls in one of the clauses enumerated in Section 13. In other words, a
Judgment of a foreign Court creates estoppel or res judicata between the same parties, provided such
Judgment is not subject to attack under any of the Clauses (a) to (f) of Section 13 of the Code (Maganbhai
Chhotubhai Patel v. Manniben).3 It is not necessary that the Judgment of the foreign Court must be
delivered before the suit in which it is set up was instituted (R.Vishwathan v. Rukh-ul-Mulk-Syed Abdul
Majid).4

The rule of conclusiveness of foreign Judgments applies only to matters directly adjudicated upon.
Manifestly, therefore, every issue heard and finally decided in a foreign Court is not conclusive between the
parties. What is conclusive is the Judgment (R.Vishwathan v. Rukh-ul-Mulk-Syed Abdul Majid).5 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 (Janardhan Mohandas Rajan Pillai v. Madhubhai Patel).6

This principle enshrined in Section 13 of the Code is a part of private international law. The name "Private
International Law" is rather unfortunate because it is difficult to conceive of a law which is both
International and at the same time private ('Hibbert's International Private Law - XXVII). It is called
"private" inasmuch as it deals with the legal relations of individuals and not of States; it is "International",
inasmuch as it deals with conflicts of laws of different nations. It is properly called law, in as much as its
rules are enforced by Courts, and in that respect it is a branch of the ordinary law of the land. The problems
of Private International Law originate in the territorial diversity of legal systems. The net result is that the
Courts in India are now at liberty to lay down and follow their own rules with regard to Private International
Law; and in this respect Courts in India are in a very fortunate position since they can adopt the rules laid
down in various countries as accord best with their sense of justice, equity and good conscience. Indian
Courts can profit by the experience and avoid errors of other countries (Indian and General Investments
trust Limited v. Sri Ramchandra Mardaraja Deo).7

Where any such Judgment as is referred to in Sub-section (1) is obtained from a Court in a reciprocating
country and in the case of a foreign Judgment is, by virtue of the provisions of Section 13 of the Code of
Civil Procedure, 1908 conclusive as to any matter adjudicated upon by it, the insurer (being an insurer
registered under the Insurance Act, 1938 and whether or not he is registered under the corresponding law
 of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner
and to the extent specified in Sub-section (1), as if the Judgment were given by a Court in India (United
India Insurance Co. Ltd. v. Lehru).8 These, provisions would apply when a suit is brought on a foreign award
(Harendra H. Mehta v. Mukesh. H. Mehta).9

Even after obtaining a foreign Judgment, a party can sue in India on the original cause of action and decree
passed by the Indian Court does not merge with the one passed by the foreign Court. The foreign Judgment
remains independently executable in the foreign country it cannot be challenged on the ground of wrong
appreciation of evidence (Vishwa Nath v. A. Wazid).10 But where the party having opportunity failed to
challenge the jurisdiction of foreign Court and allowed it to be decreed ex parte, the presumption under
Section 14 of the Code can be taken that the Court had the jurisdiction to try the case (Dr. Padmini Mishra
v. Dr. R. C. Mishra).11

2. Exception to Conclusiveness of Foreign Judgment.

(a) Courts of competent jurisdiction

One of the situations, where a foreign Judgment will not be conclusive and binding is where it has
not been pronounced by the Court of competent jurisdiction (Deva Prasad Reddy v. Kamini Reddy).12
The Court who delivered the foreign Judgment must be a competent Court to do so not only
according to law of that land but also as per the principles of private international law (Vishwanatha
v. Abdul Wazid).13 In other words extra-territorial competence in the international sense should be
the criterion to measure the competence of the Court (Mohan Lal v. Prem Sukh; In Budhia Swain v.
Gopinath Deb),14 the Court was dealing with the question of lack of jurisdiction or mere error of
jurisdiction. It pointed out that a distinction had to be drawn between the lack of jurisdiction which
strikes at the very root of the exercise and vitiates the proceedings themselves and a mere error in
the exercise of jurisdiction, which does not vitiate the legality and validity of the proceedings and the
Order passed therein unless the Order is set aside by a challenge in the prescribed manner.

Foreign Courts generally have the jurisdiction if either the parties are citizens of that country,
permanent or temporary residents of that country, or parties have chosen forum of that country
(Vellachi Achi v. Ramnathan).15 It is not necessary that the parties must have acquired citizenship or
domicile of that country (Marggarate v. Chacko).16 Where the Defendant submits to the foreign
Court by filing written statement there, decree passed by the Court can be treated valid and
executable (Narhari v. Panna Lal)17 but merely going to Court for challenging the jurisdiction would
not amount to submission. Also, no foreign Court has jurisdiction in respect of immovable property in
India either to pass a decree charging such property or recognizing a mortgage of the property
(Anathnarayana v. Abdul Khadir).18 Judgments delivered by Courts in Jammu and Kashmir are not
foreign Judgments (Jammu & Kashmir Bank v. Rawindran).19

In regard to matrimonial proceedings this clause should be interpreted to mean that only that Court
will be a Court of competent jurisdiction which the Act or the law under which the parties are
married recognizes as a Court of competent jurisdiction to entertain the matrimonial dispute. Any
other Court should be held to be a Court without jurisdiction unless both parties voluntarily and
unconditionally subject themselves to the jurisdiction of that Court (Y.Narsima Rao v. Y.Venkata
lakshmi).20 Domicile is a jurisdictional fact, and a foreign divorce decree is, therefore, subject to
collateral attack for lack of jurisdiction even where the decree contains the findings or recitals of
jurisdictional facts. Therefore, a foreign decree of divorce is subject to collateral attack for fraud or
for want of jurisdiction, even though jurisdictional facts are recited in the Judgment; such recitals
are not conclusive and may be contradicted by satisfactory proof (Maganbhai Chhotubhai Patel v.
Manniben).21

(b) Not being given on the merits of the case

Clause (b) of 13 states that if a foreign Judgment has not been given on the merits of the case, the
Courts in India will not recognize such Judgment. This clause should be interpreted to mean (a) that
the decision of the foreign Court should be on a ground available under the law and (b) that the
decision should be a result of the contest between the parties. The latter requirement is fulfilled only
when the Respondent is duly served and voluntarily and unconditionally submits himself/herself to
the jurisdiction of the Court and contests the claim, or agrees to the passing of the decree with or
without appearance. A mere filing of the reply to the claim under protest and without submitting to
the jurisdiction of the Court, or an appearance in the Court either in person or through a
representative for objecting to the jurisdiction of the Court, should not be considered as a decision
on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of
the Court which may be valid in other matters and areas should be ignored and deemed
inappropriate (Y.Narsima Rao v. Y.Venkata lakshmi; Mrs. Anoop Beniwal v. Dr. J. S. Beniwal).22

A consent decree or consent Order, though not given on the merits of the case, is conclusive
between the same parties, for the reason, a consent Order or consent decree by itself prevents the
Court from going into detail merits of the case and a party who by its own conduct of giving the
consent invites the Court for entering upon an Order and Judgment is precluded from raising the
defence that the Judgment is not on merits and therefore, not enforceable under Section 13(b) of
this Act. Therefore consent decrees cannot be refused to be enforced by virtue of the contention that
provisions of Section 13(b) inter alia requires Judgment and decree should be on merits (HSBC Bank
v. Silverline Technologies; Mohd. Abdulla v. P. M. A. Rahim).23

Thus for the adjudication of a matter on merits it 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 (Janardhan Mohandas Rajan Pillai v. Madhubhai Patel).24 A Judgment given on default of
appearance of the Defendant on the plaint allegations without any trial on evidence is not a
Judgment given on merits of the case within the meaning of Section 13(b) of the Code, and a suit
cannot be maintained in the British Indian Courts upon such a Judgment (Keymer v. Visvanatham
Reddi; Oppenheim v. Mahomed Haneef; R.E. Mohammad Kasim v. Seeni Pakir Bin Ahmed; Algemene
Bank v. Satish Daya Lal Choksi).25

In (International Woollen Mills v. Standard Wool (U.K.) Ltd. and later in China Shipping Development
Co. Ltd v. Lanyard Foods Ltd.)26 the decree was passed ex-parte without any discussion on the
merits of the case and only because the Defendant failed to appear and in view of the law laid down
there was no problem to hold that such a Judgment was not on merits of the case. The Hon'ble
Supreme Court in International Woolen Mills (supra) also approved a view of Kerala High Court in
Govindan Asari Kesavan Asari v. Sankaran Asari Balakrishnan Asari MANU/KE/0075/1958) which
passage is quoted hereinbelow:

In construing Section 13 of the Indian Code of Civil Procedure we have to be guided by the plain
meaning of the words and expressions used in the section itself, and not by other extraneous
considerations. There is nothing in the section to suggest that the expression 'Judgment on the
merits' has been used in contradistinction to a decision on a matter of form or by way of penalty.

The section prescribes the conditions to be satisfied by a foreign Judgment in Order that it may be
accepted by an Indian Court as conclusive between the parties thereto or between parties under
whom they or any of them litigate under the same title. One such condition is that the Judgment
must have been given on the merits of the case. Whether the Judgment is one on the merits must
be apparent from the Judgment itself. It is not enough if there is a decree or a decision by the
foreign Court. In fact, the word 'decree' does not find a place anywhere in the section. What is
required is that there must have been a Judgment. What the nature of that Judgment should be is
also indicated by the opening portion of the section where it is stated that the Judgment must have
directly adjudicated upon questions arising between the parties.

The Court must have applied its mind to that matter and must have considered the evidence made
available to it in Order that it may be said that there has been adjudication upon the merits of the
case. It cannot be said that such a decision on the merits is possible only in cases where the
Defendant enters appearance and contests the Plaintiff's claim. Even where the Defendant chooses
to remain ex parte and to keep out, it is possible for the Plaintiff to adduce evidence in support of his
claim (and such evidence is generally insisted on by the Courts in India), so that the Court may give
a decision on the merits of his case after a due consideration of such evidence instead of dispensing
with such consideration and giving a decree merely on account of the default of appearance of the
Defendant.

In the former case the Judgment will be one on the merits of the case, while in the latter the
Judgment will be one not on the merits of the case. Thus, it is obvious that the non-appearance of
the Defendant will not by itself determine the nature of the Judgment one way or the other. That
appears to be the reason why Section 13 does not refer to ex parte Judgments falling under a
separate category by themselves. A foreign Court may have its own special procedure enabling it to
give a decision against the Defendant who has failed to appear in spite of the summons served on
him and in favour of the Plaintiff, even without insisting on any evidence in support of his claim in
the suit.

Such a Judgment may be conclusive between the parties so far as that jurisdiction is concerned, but
for the purpose of Section 13 of the Indian Code of Civil Procedure such a Judgment cannot be
accepted as one given on the merits of the case, and to that extent the law in India is different from
the law in other jurisdictions where foreign Judgments given for default of appearance of Defendants
are also accepted as final and conclusive between the parties thereto. This position was noticed and
recognized in R.E. Mohd. Kassim and Co. v. Seeni Pakir-bin Ahmed AIR 1927 Md. 265. The
contention that the Defendant who had chosen to remain ex parte, must be taken to have admitted
the plaint claim was also repelled in that case as unsound and untenable. His non-appearance can
only mean that he is not inclined to come forward and contest the claim or even to admit it.

His attitude may be one of indifference in that matter, leaving the responsibility on the Plaintiff to
prove his claim if he wants to get a decree in his favour. Such indifference on the part of the
Defendant cannot necessarily lead to the inference that he has admitted the Plaintiff's claim.
Admission of the claim is a positive act and it cannot be inferred from any negative or indifferent
attitude of the person concerned. To decree the plaint claim solely on account of the default of the
Defendant and without considering the question whether the claim is well founded or not and
whether there is any evidence to sustain it, can only mean that such a decree is passed against the
Defendant by way of penalty."

What follows from the discussion of this Judgment of the Supreme Court (International Woollen Mills
v. Standard Wool (U.K.) Ltd.)27 is that an ex parte Judgment or a Judgment by way of penalty is
passed without discussing the merits of the case, it would not be a Judgment on merits. On the
other hand, even an ex parte Judgment, if based on the consideration of the evidence produced by
the Plaintiff, would be a Judgment on the merits of the case. The clear examples of such situations
would be the following:

(a) In a summary suit, the Defendant does not appear and treating the averments made in
the suit as correct, the Judgment and decree is passed.

(b) Again in a summary suit, if the application for leave to contest the suit is not filed and
due to this default, the Judgment is pronounced and decree passed treating the averments
made in the plaint as correct.

(c) In an ordinary suit, the Defendant does not appear and an ex parte decree is passed
without recording the evidence and only on the basis of averments made in the plaint
supported by the affidavits filed in support of the plaint.

(d) In a situation akin to Order 8 Rule 10 Code of Civil Procedure of the Code of Civil
Procedure. This would arise when inspite of repeated opportunities given to the Defendant,
he defaults by not filing the written statement and the decree is passed under Order 8 Rule
10 Code of Civil Procedure without directing the Plaintiff to prove the case by leading
evidence. At the same time, even when the Defendant is proceeded ex parte or the
 Defendant has failed to file the written statement but the Court directs the Plaintiff to prove
his claim and the Plaintiff produces documentary and oral evidence and after perusal thereof,
claim of the Plaintiff is accepted and the decree passed, such a Judgment would be on the
merits of the case notwithstanding the default on the part of the Defendant in not appearing
or in not filing the written statement. The Delhi High Court therefore was of the opinion that
in those cases where suits are tried under summary procedure, leave to defend application is
filed but by passing speaking Orders the Court has refused to grant the leave to defend and
that would be a decision on the merits of the case (Navin Khilnani v. Mascherq Bank; Islamic
Investment company for the Gulf v. Symphony Gems N.V.; Middle East Bundh Ltd. v. R. S.
Sethia).28

Thus, in order that a Judgment of a foreign Court may successfully pass the test of having been
given on the merits,such a Judgment must not have been given either as a matter of penalty or as a
matter of mere form based on special or summary procedure in as much as such a trial does not
offer any real or substantial opportunity to the Defendant to contest the suit as a matter of right as
he receives it under a regular procedure. This is, however, not to say that an ex parte Judgment per
se may not be a Judgment on the merits. It may very well be. It is not the presence or the absence
of the Defendant which can really condition the quality of a Judgment as to its having been given on
the merits or not. What really matters is whether the procedure according to which the suit has been
decreed requires the Court to determine the truth or falsity of the contentions raised or which may
be raised. It seems to us that where it so requires and the Court applies its mind to the contentions
raised on either side, there cannot but be a Judgment on merits. Where the procedure, however,
does not so require and a decree can be entered in favour of the Plaintiff merely because, the
Defendant has failed to appear and the Judgment is given in default, or where he has failed to apply
for leave to defend, or where he has applied leave to defend and such leave is refused, then ...are
disposed to hold the view that such a Judgment cannot be held to have been given on the merits
within the meaning of Section 13(b), Code of Civil Procedure. The Court observed that they are
mentioning nothing here about that class of suits where leave to defend having been given under a
summary procedure the Court applies its mind to the truth or falsity of the case and then decides the
suit (O.P. Verma v. Lala Gehrilal and Anr; Mashreq Bank v. Navin Khilnani).29

An ex parte decree passed by foreign Court is executable if it is given on merits of the case
(Trilochan v. Dayanidhi).30 An ex parte decree passed by foreign Court in default of depositing an
amount which was a condition precedent for permission to defend the case if passed on merits can
be a valid decree (Shaligram v. M/s Daulat Ram).31 But where the Defendant is not permitted to
defend, the foreign Judgment cannot be said to be one on merits (K. M. A. Jabbar v. Indo Singapore
Traders).32 The burden to prove that the foreign Judgment is not on merits is on the Judgment-
debtor who challenges its conclusiveness.

(c) Incorrect view of International Law or refusal to recognize the laws of India

The competence of the foreign tribunal must satisfy a dual test of competence by the laws of the
State in which the Court functions, and also in an international sense (R.Vishwathan v. Rukh-ul-
Mulk-Syed Abdul Majid; International Woolen Mills v. Standard Mills).33 The second part of Clause (c)
of Section 13 states that where the Judgment is founded on a refusal to recognise the law of this
country in cases in which such law is applicable; the Judgment will not be recognised by the Courts
in India. Page 162

A Judgment of a foreign Court must be founded on correct view of international law and wherever
law of India is applicable between the parties such Court should not have refused to recognise it
(Mrs. Anoop Beniwal v. Dr. J. S. Beniwal).34 Words "international law" used in Section 13 of the Code
refer to the private international law, which does not govern the relations between nations. In fact it
is a branch of civil law of the State evolved to do justice between litigating parties in respect of
transactions or personal status involving a foreign element. Though part of judicial system of each
State, the rules of private international law are generally common rules adopted to adjudicate upon
disputes involving foreign citizens and to effectuate Judgments of foreign Courts (R. Vishwanathan v.
 Abdul Wazid).35 The true basis of enforcement of foreign Judgment is that Judgment imposes
obligation upon the Defendant. That is why there must be a relation between the Defendant and the
forum imposing the obligation. Generally the rules of private international law are common and are
the result of international conventions but at times these differ from State to State. In private
international law, Courts should generally refuse to enforce those foreign Judgments which are
against public policy or national interest of that country (Renusagar Power Co. v. G. E. C. Ltd.).36

On principles of international law it is well-settled that a suit against a foreign state is not
entertained and no decree is passed against a foreign state unless the foreign state submits to such
jurisdiction. This principle is founded on the doctrine that the sanction behind the Court in a State is
the authority of the State in which the Court functions. As no sovereign State has any authority over
another sovereign State, it follows as a corollary, that the Courts of one sovereign State can have no
jurisdiction over another independent State except by its voluntary submission to such jurisdiction
(Shah Kantilal v. Dominion of India owing East India Railways).37

The marriages which take place in India can only be under either the customary or the statutory law
in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the
cine under which the parties are married, and no other law. When, therefore, a foreign Judgment is
founded on a jurisdiction or on a ground not recognized by such law, it is a Judgment which is in
defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore,
unenforceable in this country (Y.Narsima Rao v. Y.Venkata lakshmi).38

(d) Opposed to natural justice

Clause (d) of the section requires that for being conclusive, a foreign Judgment must not be a
Judgment based on proceedings opposed to principles of natural justice. The expression 'contrary to
natural justice' has figured so prominently in judicial statements that it is essential to fix its exact
scope and meaning(Sankaran Govindan v. Lakshmi Bharathi).39 The Court rendering the Judgment
must observe the minimum requirements of natural justice - it must be composed of impartial
persons, acting 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 (National Ability S.A v.
Tinna Oil and Chemicals Ltd).40 When applied to foreign Judgments, it merely relates to the alleged
irregularities in procedure adopted by, the adjudicating Court and has nothing to do with the merits
of the case. If the proceedings be in accordance with the practice of the foreign Court but that
practice is not in accordance with natural justice, this Court will not allow it to be concluded by them.
In other words, the Courts are vigilant to see that the Defendant had not been deprived of an
opportunity to present his side of the case (Sankaran Govindan v. Lakshmi Bharathi).41

The Judgment passed by foreign Court must be the result of fair play and opportunity to hear is not
denied to the party against whom direction is made in the Judgment (Sankaran v. Lakshmi).42 Once
it is proved that the Judgment-debtor had the opportunity of being heard or notices were served on
him before passing even ex parte decree, it cannot be said that the Judgment was based on
proceeding opposed to natural justice (Lalji Raja v. Hansraj).43 Similarly, where the Defendant did
not defend his case knowingly even after opportunity being given, there is no violation of principles
of natural justice (Alegemene Bank v. Satish Daya Lal Choksi).44 Where it is found that the foreign
Court was competent to pass the decree and its Judgment is not opposed to 'natural justice', the
Judgment is not open to attack on the ground of wrong appreciation of evidence. A decree passed by
a foreign Court to whose jurisdiction a Judgment-debtor had not submitted is an absolute nullity only
if the local legislature had not conferred upon jurisdiction on the domestic Courts over the foreigners
either generally or under specified circumstances (Lalji Raja and Sons v. Firm Hansraj Nathuram).45

Clause (d) of Section 13, states no more than an elementary principle on which any civilised system
of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this
principle has to be extended to mean something more than mere compliance with the technical rules
of procedure. If the rule of audi alteram purtem has any meaning with reference to the proceedings
 in a foreign Court, for the purposes of the rule it should not be deemed sufficient that the
Respondent has been duly served with the process of the Court. It is necessary to ascertain whether
the Respondent was in a position to present or represent himself/herself and contest effectively the
said proceedings. This requirement should apply equally to the Appellate proceedings if and when
they are filed by either party. If the foreign Court has not ascertained and ensured such effective
contest by requiring the petitioner to make all necessary provisions for the Respondent to defend
including the costs of travel, residence and litigation where necessary, it should be held that the
proceedings are in breach of the principles of natural justice. (insert the name of the case here to
maintain similarity)

(e) Judgment obtained by fraud

The Judgment based on fraud delivered by foreign Court is not a conclusive Judgment. However,
fraud alleged, must be extrinsic or collateral played by the party in whose favour Order is passed.
Mere mistake of fact cannot amount to fraud (Magan Bhai v. Mani Ben).46 It is a well established
principle of private international law that if a foreign Judgment was obtained by fraud, or if the
proceedings in which it was obtained were opposed to natural justice, it will not operate as res
judicata see Section 13 of the Code of Civil Procedure (Sankaran Govindan v. Lakshmi Bharathi).47

Turning to proof of fraud as a vitiating factor, if the foreign decree was obtained by the fraud of the
petitioner, then fraud as to the merits of the petition was ignored in England, but fraud as to the
jurisdiction of the foreign Court, i.e. where the petitioner had successfully invoked the jurisdiction by
misleading the foreign

Court as to the jurisdictional facts, used to provide grounds for not recognizing the decree. Under
Section 13(e), Code of Civil Procedure, the foreign Judgment is open to challenge "where it has been
obtained by fraud". Fraud as to the merits of the Respondent's case may be ignored and his
allegation that he and his wife "have lived separate and apart for more than three (3) consecutive
years without cohabitation and that there is no possibility of a reconciliation" may be assumed to be
true. But fraud as to the jurisdiction of the foreign Court is a vital consideration in the recognition of
the decree passed by that Court (Smt Satya v. Shri Teja Singh).48

Where the Judgment-debtor never entered the box to substantiate as to how any principles of
natural justice stood violated and as to how any fraud was perpetrated on him. Even in the counter-
affidavit filed to the execution petition, details of the fraud are not exposed. This speaks against the
Judgment-debtor and this plea is very baldly projected (Mohammed Abdullah v. P.M.Abdul Rahim).49

From the aforesaid discussion the following rule can be deduced for recognizing foreign matrimonial
Judgment in this country. The jurisdiction assumed by the foreign Court as well as the ground on
which the relief is granted must be in accordance with the matrimonial law under which the parties
are married. The exceptions to this rule may be as follows:

(i) where the matrimonial action is filed in the forum where the Respondent is domiciled 01
habitually and permanently resides and the relief is granted on a ground available in the
matrimonial law under which the parties are married;

(ii) where the Respondent voluntarily and effectively submits to the jurisdiction of the forum
as discussed above and contests the claim which is based on a ground available under the
matrimonial law under which the parties are married;

(iii) where the Respondent consents to the grant of the relief although the jurisdiction of the
forum is not in accordance with the provisions of the matrimonial law of the parties
(Y.Narsima Rao v. Y.Venkata lakshmi).50

(f) Breach of any law in India

The second part of Clause (c) of Section Section 13 states that where the Judgment is founded on a
refusal to recognise the law of this country in cases in which such law is applicable, the Judgment
will not be recognised by the Courts in this country.
 A foreign Judgment which sustains a claim founded on a breach of any law in force in India cannot
be a conclusive Judgment and is not enforceable. Where before institution of a suit, sanction or
permission of the Central Government of India or any other public authority is necessary, the foreign
Judgment can be executable only after such permission has been sought and obtained before
execution proceeding starts on such Judgment (Algemene Bank v. Satish Daya Lal Choksi).51

3. Divorce Proceedings.

In determining whether a divorce decree will be recognised in another jurisdiction as a matter of comity,
public policy and good morals may be considered. No country is bound by comity to give effect in its Courts
to divorce laws of another country which are repungnant to its own laws and public policy. Foreign decrees
of divorce including decrees of sister States save been either accorded recognition or have been treated as
invalid, depending on the circumstances of each particular case. But if a decree of divorce is to be accorded
full faith and credit in the Courts of another jurisdiction it is necessary that the Court granting the decree
has jurisdiction over the proceedings. A decree of divorce is thus treated as a conclusive adjudication of all
matters in controversy except the jurisdictional facts on which it is founded. Domicil is such a jurisdictional
fact. A foreign divorce decree is therefore subject to collateral attack for lack of jurisdiction even where the
decree contains the findings or recitals of jurisdiction facts (Smt Satya v. Shri Teja Singh).52

The relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required
certainty in the sphere of this branch of law in conformity with public policy, Justice, equity and good
conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of
family which are the corner stones of our societal life. The aforesaid rule with its stated exceptions has the
merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to
know their rights and obligations when they marry under a particular law. They cannot be heard to make a
grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an
advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private
international Law of the different countries with regard to jurisdiction and merits based variously on
domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring
certainly in the most vital field of national life and conformity with pubic policy. The rule further takes
account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives
protection to women, the most vulnerable section of our society, whatever the strata to which they may
belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile
follows that of her husband and that it is the husband's domicilliary law which determines the jurisdiction
and Judges the merits of the case (Y.Narsima Rao v. Y.Venkata lakshmi).53

CODE OF CIVIL PROCEDURE, 1908

Section 13 - When foreign judgment not conclusive

Comments

The Court who delivered the foreign judgment must be a competent Court to do so not only according to law of that land but also as
per the principles of private international law. In other words extra-territorial competence in the international sense should be the
criterion to measure the competence of the Court. Foreign Courts generally have the jurisdiction if either the parties are citizens of
that country, permanent or temporary residents of that country, or parties have chosen forum of that country. It is not necessary that
the parties must have acquired citizenship or domicile of that country. Where the defendant submits to the foreign Court by filing
written statement there, decree passed by the Court can be treated valid and executable but merely going to Court for challenging
the jurisdiction would not amount to submission. Also, no foreign Court has jurisdiction in respect of immovable property in India
either to pass a decree charging such property or recognizing a mortgage of the property. Judgments delivered by Courts in Jammu
and Kashmir are not foreign judgments.

CODE OF CIVIL PROCEDURE, 1908

Section 13 - When foreign judgment not conclusive

Comments

A foreign judgment cannot be treated conclusive unless delivered on merits. Where a judgment is based merely on pleadings
without hearing other party, it cannot be said to be on merits. Similarly, judgment given by summary procedure in default of a party
cannot be held to be a judgment on merits. However, even an ex parte decree passed by foreign Court is executable if it is given on
merits of the case. An ex parte decree passed by foreign Court in default of depositing an amount which was a condition precedent
for permission to defend the case if passed on merits can be a valid decree. If the procedure applicable to foreign Court permits it to
pass a decree after due service of summons on defendant and taking consent to proceed with to pass a decree, the judgment would
be treated judgment on merits if the said requirements are fulfilled. But where the defendant is not permitted to defend, the foreign
judgment cannot be said to be one on merits. The burden to prove that the foreign judgment is not on merits is on the judgment-
debtor who challenges its conclusiveness.

CODE OF CIVIL PROCEDURE, 1908

Section 13 - When foreign judgment not conclusive

Comments

Founded on correct view of International law.—A judgment of a foreign Court must be founded on correct view of international
law and wherever law of India is applicable between the parties such Court should not have refused to recognise it. Where in a
matrimonial suit for divorce on ground of cruelty provided under Section 13 of the Hindu Marriage Act is covered by the Matrimonial
Causes Act, 1973 of the foreign country, it cannot be said that such Court refused to recognise the law of India. Words "international
law" used in Section 13 of the Code refer to the private international law. The private international law does not govern the relations
between nations. In fact it is a branch of civil law of the State evolved to do justice between litigating parties in respect of
transactions or personal status involving a foreign element. Though part of judicial system of each State, the rules of private
international law are generally common rules adopted to adjudicate upon disputes involving foreign citizens and to effectuate
judgments of foreign Courts. The true basis of enforcement of foreign judgment is that judgment imposes obligation upon the
defendant. That is why there must be a relation between the defendant and the forum imposing the obligation. Generally the rules of
private international law are common and are the result of international conventions but at times these differ from State to State. In
private international law, Courts should generally refuse to enforce those foreign judgments which are against public policy or
national interest of that country.

CODE OF CIVIL PROCEDURE, 1908

Section 13 - When foreign judgment not conclusive

Comments

Natural justice.—Clause (d) of the section requires that for being conclusive, a foreign judgment must not be a judgment based on
proceedings opposed to principles of natural justice. In other words the judgment passed by foreign Court must be the result of fair
play and opportunity to hear is not denied to the party against whom direction is made in the judgment. Once it is proved that the
judgment-debtor had the opportunity of being heard or notices were served on him before passing even ex parte decree, it cannot
be said that the judgment was based on proceeding opposed to natural justice. Similarly, where the defendant did not defend his
case knowingly even after opportunity being given, there is no violation of principles of natural justice. Where it is found that the
foreign Court was competent to pass the decree and its judgment is not opposed to 'natural justice', the judgment is not open to
attack on the ground of wrong appreciation of evidence. Clause (d) in the section is based on maxim audi alteram partem i.e., ‘hear
the other side’. In other words Indian law as incorporated in Section 13 of the Code is vigilant enough to see that the defendant is
not deprived of an opportunity to present his side of the case'.

CODE OF CIVIL PROCEDURE, 1908

Section 13 - When foreign judgment not conclusive

Comments

Fraud.—The judgment based on fraud delivered by foreign Court is not a conclusive judgment. However, fraud alleged, must be
extrinsic or collateral played by the party in whose favour order is passed. Mere mistake of fact cannot amount to fraud. But where
the plaintiff who had never been a citizen or resident of a country wherefrom he obtains a decree and circumstances are such that
he had no cause of action to file the suit in that country, it can be said that the decree passed against the defendant is obtained by
fraud.

CODE OF CIVIL PROCEDURE, 1908

Section 13 - When foreign judgment not conclusive

Comments

Not founded on breach of law in force in India.—A foreign judgment which sustains a claim founded on a breach of any law in force
in India cannot be a conclusive judgment and is not enforceable. Where before institution of a suit, sanction or permission of the
Central Government of India or any other public authority is necessary, the foreign judgment can be executable only after such
permission has been sought and obtained before execution proceeding starts on such judgment.
 The Code of Civil Procedure, 1908
By Anupam Srivastava
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