The Code of Civil Procedure, 1908 (CPC) provides a mechanism to enforce certain types of foreign decrees and judgments passed by superior courts of concerned reciprocal countries as if such decrees were passed by an Indian court. Further for this mechanism to apply, the Government of India must declare the country where the decree was issued, as a reciprocal territory. The Government of India has so far declared 12 countries as reciprocal territories. A reciprocating territory can be any territory or country outside India, which can be declared as a reciprocating territory by the Central Government (as per CPC).
If the decree or judgement is passed by a non-reciprocating territory, the concerned individual has to file a fresh suit before the appropriate court, seeking enforcement of the decree passed by a non-reciprocal territory or a separate suit for the purpose.
Under section 2(6) of CPC, a foreign judgement is defined as the judgement of a foreign court and a judgement is defined under section 2 (9) as a statement given by the judge on the grounds of a decree or order.
Section 44A of the CPC describes the mechanism for the execution of decrees passed by Courts in reciprocating territories. The section also describes the terms reciprocating territory and decree. It further explains that when the judgement of any superior court of a reciprocating territory is filed in a district court of India, the judgement can be executed in India as if the district court of India has passed the judgement.
Foreign judgements can be enforced in India except for the matters described in section 13 of CPC. The foreign judgement will not be enforceable in India if it fails to comply with section 13 of CPC.
Section 13 of CPC provides that a foreign judgement can be said to be incomplete if the judgement has:
Not been pronounced by a court of competent jurisdiction
Obtained without any merits of the case
Is not recognized by Indian law
Violates principle of natural justice
Been obtained by fraud
Breaches any law in force at the time
These are checks and balances that an Indian court is required to examine before executing the judgment of the competent court in a foreign country. These exceptions are there to ensure that the judgement is passed as a result of a fair trial.
To execute a foreign judgement in India under section 44A of CPC, the fundamental criteria is that the foreign country which passed the decree must be recognized as a reciprocal territory by section 44A of the CPC, and the court that passes such a judgement must be recognized as a superior court. Therefore the decree must be passed by the superior court of a reciprocating country for the purpose of section 44A, under which money is payable (by the reciprocating state), though not in respect of taxes, or other charges like fine or penalty. It shall also not include an arbitral award, even if it is enforceable as a judgement.
The Government of India has notified various countries as reciprocating territories and has also identified which of their courts are to be considered as superior courts. These include the United Kingdom, Singapore, Bangladesh, Malaysia, New Zealand and Hong Kong. Also, India and the United Arab Emirates (UAE) entered into a bilateral agreement on 25 October 1999, and then the Government of India on 17 January 2020 notified UAE to be a reciprocating territory.
