DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

CODE OF CIVIL PROCEDURE

TITLE:

ENFORCEMENT OF FOREIGN DECREES IN INDIA

(SECTION 44A OF CPC)

Submitted by Submitted to

Ashutosh Yadav Mr. Vipul Vinod

4th Semester Assistant Professor (Law)
Enrollment no. 200101045
 TABLE OF CONTENTS

ACKNOWLEDGEMENT .............................................................................................................. 3

STATEMENT OF THE PROBLEM .............................................................................................. 4

RESEARCH QUESTIONS ............................................................................................................ 4

RESEARCH METHODOLOGY ................................................................................................... 4

INTRODUCTION .......................................................................................................................... 5

SECTION 44A AND ITS APPLICABILITY ................................................................................ 7

RECIPROCATING AND NONRECIPROCATING TERITORIES ............................................. 9

SECTION 13 AND SECTION 44A ............................................................................................. 14

ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN INDIA ....................................... 17

CONCLUSION ............................................................................................................................. 21
 ACKNOWLEDGEMENT

I express my gratitude and deep regards to my teacher for the subject Mr. Vipul Vinod, for
giving me such a challenging topic and also for his exemplary guidance, monitoring and constant
encouragement throughout the course of this thesis.

I would also like to thank the librarians of Dr. Madhu Limaye Library who extended their
assistance to me by helping me out consult the relevant books and provided me with research
material and good books to work upon and the distinguished authors, jurists and journals for
providing in the public domain such invaluable information. I also thank all of my friends and
seniors who aided me along the way.

Lastly, I thank almighty, my family and friends for their constant encouragement without which
this assignment would not have been possible.

I know that despite my best efforts some discrepancies might have crept in which I believe my
humble Professor would forgive.

Thanking You All.

Ashutosh Yadav
 INTRODUCTION

A judgment of an Indian court can only be enforced by proceedings in execution. A foreign

judgment, however, may be enforced by proceedings in execution in certain specified cases
only.1 In other cases, a foreign judgment can only be enforced by a suit upon the judgment.
However, it is not to be supposed that Indian courts are bound in all cases to take cognizance of
the suit, and they may refuse to entertain it on grounds of expediency.2

There was at one time difference of opinion as to whether a suit could be maintained in British
India as it was then upon the judgment of a court of an Indian state or whether the plaintiff could
sue only upon the original cause of action. The Madras High Court held that a suit could be
maintained on the judgment,3 while the Bombay High Court held that no such suit was
maintainable4 and that the only remedy was by way of a suit on the original cause of action. It is
submitted that the Bombay view was not correct since it was contrary to the general rule that a
court which entertains a suit on a foreign judgment cannot institute an inquiry into the merits of
the original claim or the propriety of decision.5 With a view to resolve the conflict of views, a
clause was added to section 14 of the Code of 1882, by section 5 of Act 7 of 1888, but that
clause was deleted in 1908 as the raison desire for such a clause was no longer tenable.6 The
result is that the Madras view prevails.

The “recognition” of a foreign judgment occurs when the court of one country accepts a judicial
decision made by the courts of another “foreign” country, and issues a judgment in substantially
identical terms without rehearing the substance of the original lawsuit. Recognition of judgment
will be denied if the judgment is substantively incompatible with basic fundamental legal
principles in the recognizing country. The Indian Code of Civil Procedure, 1908 (CPC) lays
down the procedure for enforcement of foreign judgments and decrees in India. The basic
principle which is followed while enforcing a foreign judgment or decree in India is to ensure

1
Code of Civil Procedure, 1908, § 44, 44A.
2
Monoharlal v. Raghunath, AIR 1957 MB 74.
3
Janoo v. Mahamad, AIR 1925 Mad 155.
4
Himmat Lall v. Shivajirav, (1884) ILR 8 Bom 593.
5
Viswanathan v. Abdul Wajid, AIR 1952 Mysore 94 (2).
6
Vasant v. Dattoba, AIR 1956 Bom 49.
that the judgment or decree is a conclusive one, passed on the merits of the case and by a
superior court having competent jurisdiction.

By virtue of section 44A of the CPC, a decree of any superior court of a reciprocating territory
shall be executed in India as a decree passed by the Indian district court. A judgment from a
court of a reciprocating territory can be directly enforced in India by filing an execution
application. Section 44A (1) of the CPC states that where a certified copy of a decree of any
superior court of a reciprocating territory has been filed in a District Court, the decree may be
executed in India as if it had been passed by the District Court (meaning that the entire scheme of
execution of decrees as laid down in Order 21 of the CPC will be applicable).

An awareness of foreign law in the parallel jurisdiction would be a useful guideline in

determining our notions of justice and public policy. We are a Sovereign Nation within our
territory but it is not derogation of sovereignty to take accounts of foreign law. This research
work will further the applicability of section 44A in enforcement of foreign decrees and awards.
 SECTION 44A AND ITS APPLICABILITY

A bare reading of the section7 indicates that for a decree of a foreign court of a reciprocating
territory to be executed in India, the foreign country must be notified as a reciprocating territory
by the Government of India in the Official Gazette. Most countries, including UK, have been so
notified by the Indian Government. By a notification dated 1 March 1953, published in the
Gazette of India, the United Kingdom of Great Britain and Northern Ireland has been notified to
be a reciprocating territory under s 44A of the CPC. Hong Kong was recognized as a
reciprocating territory under the provisions of s 44A by a notification dated 18 November1968
issued by the Government of India. Thus, the process of being notified as a reciprocating
territory is a prerequisite to the invoking of s 44A of the Code.8 Reciprocating and non-
reciprocating countries are dealt in detail later in this project.

Section 44A is an independent provision enabling a set of litigants whose litigation has come to
an end by way of a foreign decree and who is desirous of enforcement of the same: It is an
authorization given to the foreign judgments and as noticed above, the Section is replete with
various conditions and as such independently of any other common law rights, an enabling
provision for a foreign decree-holder to execute a foreign decree in this country has been
engrafted on to statute book to wit: Section 44-A of the Code.9

The essence of section 44A was best explained by the Supreme Court in the case, M. V. AL.
Qumar v. tsavliris salvage (international) Ltd.10, where the court held that, S.44A is an
independent provision enabling a set of litigants whose litigation has come to an end by way of a
foreign decree and who is desirous of enforcement of the same. It is an authorization given to the
foreign judgments and the section is replete with various conditions and as such independently of
any other common law rights and is an enabling provision for a foreign decree holder to execute
a foreign decree in this country.

7
Code of Civil Procedure, 1908, § 44A.
8
Enforcement of Foreign Judgments and Foreign Arbitral Awards in the Indian Civil Jurisdiction, ANIL
MALHOTRA and RANJIT MALHOTRA Commonwealth Law Bulletin Vol. 32, No. 3, 431–442, September 2006.
9
MV Al Quamar v. Tsavliris Salvage (International) Ltd., AIR 2000 SC 2826.
10
MV Al Quamar v. Tsavliris Salvage (International) Ltd., AIR 2000 SC 2826.
The court further held that, Section 44A gives a new cause of action irrespective of its original
character and as such, it cannot be termed to be emanating from the admiralty jurisdiction as
such and that, enforcement of a foreign decree is different from scheme of domestic execution. A
combined reading of section 13 and 44A makes it clear that a decree of a reciprocating territory
can be executed through a district court, and the judgment debtor is entitled to contest the
execution petition if it can be shown that the judgment is not conclusive, i.e., it comes within any
of the exceptions under section 13 (a) to (f ).11 The relevance of section 13 will be dealt in more
detail in the next chapter.

11
Yazman Hume Quarries S.D.N, B.H.D v. Chellappan, (1998- 1) 122 Mad 141 (DB)
 RECIPROCATING AND NONRECIPROCATING TERITORIES

Section 44A appears to give more levy when it comes to enforcement of decrees from
reciprocating countries. This part deals with the significance of reciprocating and non-
reciprocating territories under the section and studies how the courts have taken their view at
different instances while interpreting the same.

What is a Reciprocating Territory?

The definition, explanation and scope of Reciprocating Territories of India flows from section
44-A of the Code of Civil Procedure, 1908 (the Code). A bare perusal of section 44-A of the
code suggests that a reciprocating territory means any country or territory outside India which
the Central Government may by notification in the official gazette, declare to be a reciprocating
territory for the purpose of section 44-A.

Interestingly, a decree passed by a ‘superior court’ located in any of the reciprocating territories,
as notified by the Union of India, can be executed in India merely by filing a certified copy of
that decree in the concerned District court of India. On filing a certified copy of the decree from
a ‘Superior Court’, the concerned District court in India may treat the decree as if it was passed
by itself. For the purpose of this section, a ‘superior court’ would mean any such court in a
reciprocating territory, as may be specified in the notification for Reciprocating Territories.
Further, as per the explanation given in ‘the code’ a decree for the purpose of this section would
mean any decree or judgment of a superior court under which a sum of money is payable, not
being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or
other penalty. The section further prescribes that such a decree shall in no case include an
arbitration award, even if such an award is enforceable as a decree or judgment.

In the case of N.P.A.K. Muthiah Chettiar (died) and Ors. v. K.S. Rm. Firm Shwebo, Burma and
Ors.12, the Hon’ble High Court of Madras observed that with regard to decrees of a reciprocating
territory contemplated in the explanation to Section 44-A no suit is necessary but the same can
be executed by the application of the provisions of Section 47, Civil P. C. The distinction that

12
N.P.A.K. Muthiah Chettiar (died) and Ors. v. K.S. Rm. Firm Shwebo, Burma and Ors. AIR 1957 Mad 25.
has to be borne in mind is that reciprocating territories enjoy greater privilege regarding
execution of decrees of their superior Courts in our country than are enjoyed by the non-
reciprocating territories. In the case of Kevin George Vaz v. Cotton Textiles Exports Promotion
Council13, the Hon’ble High Court of Bombay clarified the above-discussed position of the
Indian Legal System vis-à vis Foreign Awards from Reciprocating and Non- Reciprocating
territories of India.

It is also pertinent to highlight that reciprocity is a bilateral arrangement and Reciprocating

Territories are not an exception to this rule. All the reciprocating territories of India mutually
agree to enforce court orders passed by the Indian Courts in their country as well. In the back
drop of globalization and rapid integration of world economies, such mutuality appears to be the
need of the hour. An optimist would like to perceive such mutuality and reciprocity as the
stepping stone towards the ultimate goal of conceptualizing a ‘World Court’.

Judgments from reciprocating and non-reciprocating territories of India

Enforceability of Foreign judgments and awards passed by the courts located outside the
politico-geographical boundary of a country is a grey area of International Law and involves
complex issues of law. The tall and steep walls of Sovereignty protecting the unchallenged
supremacy of the Nations in their international and intra-national affairs are probably the biggest
hurdle in the enforceability of foreign awards and judgments.

As is the case with the third world countries, enforceability of foreign judgments in India has
attracted mixed reactions from the legal experts across the world. If perceiver’s view of reality is
to be believed then enforcing a foreign judgment or award in India is a tough nut to crack.
However, the reality is substantially different from the above-mentioned perceiver’s view of
reality. The position of Indian legal system is crystal clear with respect to enforceability of
Foreign Judgments and awards in India.

The Indian Legal System categorizes Foreign Judgments and Awards from all the quarters of the
world into two groups viz.

13
Kevin George Vaz v. Cotton Textiles Exports Promotion Council, 2006 (5) Bom CR 555.
(a) Judgments and Awards coming from the ‘Reciprocating Territories’ of India and
(b) Judgments and awards coming from the ‘Non-Reciprocating Territories’ of India.

The Judgments coming from the ‘non-reciprocating territories’ of India are required to pass
through the sieve of ‘Indian Judiciary’ before they could be enforced. In other words, for
enforcing a foreign Judgment or an Award from a ‘Non-Reciprocating Territory’ of India, a fresh
suit in an Indian Court with appropriate Jurisdiction needs to be instituted. Further, Judgments
from a ‘Non-Reciprocating Territory’ only have evidentiary and persuasive value in the eyes of
India Judiciary and they must be filed for enforcement within three years from the day when they
were originally passed.

However, it does mean that scope of enforceability of Foreign Judgments from ‘Non-
Reciprocating Territories’ in India is limited or the approach of Indian Judiciary is parochial. No
doubt that Foreign Judgments from Non-Reciprocating Territories need to pass through the sieve
of Indian Judiciary but the sieve used is broad and spacious enough to allow the sink in of ‘the
cause of Justice’ upheld by the courts of Foreign Countries.

In the case of Formosa Plastic Corporation Ltd. v. Ashok Chauhan & Ors.14 the Hon’ble High
Court of Delhi emphatically reiterated the well settled principle of law in India with respect to
foreign Judgments. The principle states, “it is not open to the Court trying the suit on a foreign
judgment to decide whether the decision of the foreign Court on the materials put before it is
right or not”.

The Court further observed that while adjudicating the suit on a foreign judgment, the duty of the
Court is “merely” to see that the foreign Court has applied its mind to the facts of the case and
the law on the point. The Hon’ble High Court of Delhi firmly established this principle by citing
an old Judgment delievered in the case of Dr. Kulwant v. Dhan Raj Dutt15. In this case it was
held that if a foreign court has strictly followed ‘the procedure’ and has given full opportunity to
the defendant to appear and raise a defense, then, even if that judgment is passed ex-parte it shall
be considered to have been decided on merits.

14
Formosa Plastic Corporation Ltd. v. Ashok Chauhan & Ors, E.A. No. 206 of 1998 in Ex. No. 38 of 1998
15
Dr. Kulwant v. Dhan Raj Dutt, AIR 1935 Lah 396
In Shalig Ram v. Firm Daulatram Kundanmal,16 a summary suit was instituted in the Bombay
High Court. The defendant, at that point in time, was a resident of the former State of Hyderabad
(a foreign territory). The defendant, however, appeared in obedience to the process of the Court
and applied for leave to defend the suit without any objection to the jurisdiction of the High
Court of Bombay. The defendant was granted the leave to defend.

The Court, within the prescribed time but on the default of the defendant, passed an ex parte
decree against the defendant. The decree was transferred to a Court in Hyderabad, interestingly,
a foreign Court at that juncture of history. The defendant took an objection that the decree of a
foreign court was not executable. It was ultimately decided by the Hon’ble Supreme Court of
India that once the defendant has submitted to the jurisdiction of a foreign Court, a decree passed
by that court, even if ex-parte, is a valid foreign decree.

Reciprocating territories of India

In exercise of the power conferred by section 44-A of ‘the code’, the central government of India
has notified 11 territories as Reciprocating Territories of India. The names of these territories are
as follows:

1. United Kingdom
2. Aden
3. Fiji
4. Republic of Singapore
5. Federation of Malaya
6. Trinidad and Tobago
7. New Zealand, the Cook Islands (including Niue) and the Trust Territories of Western
Samoa
8. Hong Kong
9. Papua and New Guinea
10. Bangladesh
11. United Arab Emirates

16
Shalig Ram v. Firm Daulatram Kundanmal, [1963] 2 SCR 574.
In addition, India has entered into bilateral treaties with the following countries; however, they
are not yet notified as reciprocating territories: Afghanistan, Azerbaijan, Bahrain, Bulgaria,
France, Kazakhstan, Mongolia, Turkey and Ukraine. Pending notification as reciprocating
territories, the enforcement of judgments and decrees from courts in these jurisdictions follow
the same process as non-reciprocating territories.

Thus, we see that a foreign judgment from a reciprocating territory has a special status in India.
For enforcement of a foreign judgment from a reciprocating territory, a lawsuit is not required to
be instituted. However, it is also pertinent to mention that no foreign judgment shall be held
conclusive if it attracts any of the clauses mentioned in section 13 of ‘the code’.
 SECTION 13 AND SECTION 44A

The recognition and enforcement of foreign judgments and decrees in India are governed by
Section 44-A, read with Section 13 of the Code of Civil Procedure 1908. Section 13 of the code
provides the criteria for recognition of a foreign judgment and is a pre-condition to any
enforcement proceedings. Unless a foreign judgment passes the conclusiveness test under
Section 13 of the Code of Civil Procedures, it cannot be enforced. On the other hand,
enforcement is dealt with under Section 44A of the code in respect of foreign judgments
emanating from both reciprocating territories and non-reciprocating territories.

Therefore, section 13 of the Code of Civil Procedure 1908 is an important criterion. The Indian
courts have held that interlocutory orders on costs, jurisdiction, divorce decrees, monetary
judgments, mandatory injunctions and anti-suit injunctions are enforceable in India. The courts
have also held that ex parte decisions are not unenforceable per se. If the entire established
procedure in trial is followed, the judgment is based on the merits of the dispute and the
judgment holder was directed to prove its case even in the absence of a defence by the defendant;
such an ex parte decision will be enforceable.

On the other hand, default judgments, judgments from summary or special procedures, formal
judgments, judgments imposing punitive damages and penalties or quasi-judicial orders have
been held to be unenforceable in India. There are conflicting views between different high courts
on whether consent and compromise decrees are enforceable.

In light of section 13 of the Code, a litigant from a foreign jurisdiction can make an application
to the civil court within whose jurisdiction the decree is sought to be executed for enforcing the
judgment or decree of the foreign court. Section 14 of the Code states that the court shall
presume upon the production of any document purporting to be a certified copy of a foreign
judgment that such judgment was pronounced by a court of competent jurisdiction, unless the
contrary appears on the record; but such presumption may be displaced by proving that the
foreign court lacked jurisdiction. In defence to the application for execution, the judgment debtor
can use any of the grounds given in s 13 CPC to claim that the foreign judgment is not
conclusive and cannot be executed. The most commonly adopted ground used as a defence under
s 13 of the CPC is that the judgment and decree of the foreign court are not based on the merits
of the case and hence cannot be executed in India.

The conditions for seeking execution of a foreign decree in India have been very well summed
up by the Indian Supreme Court in MV AL Quamar v Tsaviliris Salvage (International)
Limited.17 The hon’ble court laid down the following conditions that need to be satisfied by the
decree holder:

1. A decree-holder who seeks execution must be armed with a money decree passed by any of
the superior Courts of any reciprocating territory, being any foreign country or territory which
the Central Government may, by notification in official gazette, has declared to be a
reciprocating territory for the purpose of the Section.
2. Such an execution petition can be entertained by the executing Court in India being the
District Court that will be clothed with the legal fiction as if the said foreign decree was passed
by itself and whose aid and assistance are required for executing such a decree.
3. Such a decree can be put up for execution before a District Court in India being the principal
Civil Court of original jurisdiction and which will include the local limits of the original civil
jurisdiction of a High Court.
4. Once such execution petition is filed before the appropriate District Court the entire machinery
of Section 47 for execution of Indian decrees would automatically get attracted.
5. In such execution proceedings, the judgment-debtor of a foreign Court decree will be entitled
to satisfy the executing Court in India that the foreign decree cannot be executed against him as
it is hit by any of the exceptions specified in Clauses (a) to (f) of Section 13 of the CPC.

In the context of what constitutes a judgment on the merits of the case, the law laid down by the
Indian courts, and more particularly by the Supreme Court of India, has dealt with this issue and
in the matter of M/s International Woollen Mills v M/s Standard Wool (UK) Limited18, the Apex
Court stated that It cannot be said that the expression judgment on the merits implies that it must
have been passed after contest and after evidence had been let in by both sides. An ex parte
judgment in favour of the plaintiff may be deemed to be a judgment given on merits if some

17
AIR 2000 SC 2826, at 2832, para 6.
18
M/s International Woollen Mills v M/s Standard Wool (UK) Limited AIR 2001 SC 2134.
evidence is adduced on behalf of the plaintiffs and the judgment, however, brief, is based on a
consideration of that evidence. Where however no evidence is adduced on the plaintiff’s side and
his suit is decreed merely because of the absence of the defendant either by way of penalty or in
a formal manner, the judgment may not be one based on the merits of the case.

Therefore, a decree pronounced by a Court of competent foreign jurisdiction solely on account of

the default of a litigant and by way of penalty, without considering the question on merits and
whether the claim is well founded or not and whether there is any evidence to sustain it or not,
cannot in Indian law be termed to be a decree on merits and cannot be enforced in the Indian
jurisdiction. The views of the Bombay High Court in Algemene Bank Nederland NV v. Satish
Dayalal Choksi19, and those of Punjab and Haryana High Court in Gurdas Mann v Mohinder
Singh Brar20, also follow the above view which has been consistently followed ever since the
decision of the Privy Council in D T Keymer v P Vishwanathan Reddi,21.

Thus, the view is consistent that if the controversy raised in the action has not been the subject of
direct adjudication by the court in the foreign jurisdiction, the decree cannot be executed in
India. However, this does not preclude a litigant from showing to the satisfaction of the Court
that the case falls within any of the other exceptions specified in clauses (a)–(f) of s 13 of the
Code. Once, however, the decree-holder is able to establish their case and none of the conditions
in s 13 are applicable, the decree of the foreign court can be executed in India. Therefore, it is
only where the Indian court is satisfied that the decree of the foreign court can be executed in
India that leave is granted under Ord XXI r 22 of the CPC for the purposes of executing the
decree and every decree of any foreign court cannot be executed simpliciter by approaching an
Indian court. Section 44A thus cannot be attributed to any specific jurisdiction, but is an
independent and an enabling provision available to a foreign citizen who wises to enforce a
foreign decree.

19
Algemene Bank Nederland NV v. Satish Dayalal Choksi, AIR 1990 Bom 170.
20
Gurdas Mann v. Mohinder Singh Brar AIR 1993 P&H 92.
21
D T Keymer v P Vishwanathan Reddi, AIR 1916 Privy Council 121.
 ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN INDIA

Section 44A of the CPC quoted above excludes from its ambit the execution of foreign
arbitration awards even if they are enforceable as a decree or a judgment of a court of law.
However, alternative modes of domestic legislation are available for enforcement of foreign
arbitration awards in India. The Indian legislation in the field of arbitration that also provides for
the enforcement of foreign awards is the Arbitration and Conciliation Act, 1996 (the 1996 Act).
This Act is based on the United Nations Commission on International Trade Law (UNCITRAL).
A competitive economic environment, as well as the need to provide a workable method for the
enforcement of international business transactions and boosting foreign exchange earnings in the
age of economic reforms, perhaps prompted the 1996 Act as an attempt to gain the confidence of
foreign investors by exhibiting more structure and transparency in India’s legal and dispute
resolution system. Prior to the 1996 Act, Indian arbitration law was in the form of three different
enactments. They were: The Arbitration Act, 1940; the Arbitration Protocol and Convention Act,
1937; and the Foreign Awards (Recognition and Enforcement) Act, 1961. Thereafter, to
consolidate and amend the outdated law relating to domestic arbitration, international
commercial arbitration and the enforcement of foreign arbitral awards – and for other matters
connected therewith or incidental thereto – the Indian parliament adopted the UNCITRAL model
law on international commercial arbitration to enact the 1996 Act. Part II of the 1996 Act (in
chapters I and II) deals with the provisions relating to the enforcement of foreign awards in
India. A foreign arbitration award is enforceable in India under the respective multinational
conventions to which India is a party

Firstly, under sections 44–52, chapter I, Pt II of the 1996 Act, if a foreign award has been made
in a country, which has ratified the New York Convention of 1958 (finds a place in the first
schedule of the 1996 Act), the award can be enforced in India. Secondly, under ss 53–60 in
chapter II, Pt II of the 1996 Act, if a foreign award has been made in a country which has ratified
the Geneva Protocol (contained in the second Schedule of the 1996 Act), or the Geneva
Convention of 1927 (contained in the third Schedule of the 1996 Act), the award can be enforced
in India. Therefore, a foreign award can be enforced in India depending on the multilateral
international convention sought to be enforced by the foreign litigant who is a party to the said
convention. Prior to the 1996 Act, the 1937 Act provided for the enforcement in India of foreign
arbitral awards to which the Geneva Convention applied and the 1961 Act prescribed the law and
procedure for the enforcement in India of foreign arbitral awards to which the New York
Convention applied. Section 85 of the 1996 Act repeals both the 1937 Act and the 1961 Act and
provides a composite legislative scheme which contains the provisions of the aforementioned
three schedules, i.e., of the New York Convention, the Geneva Protocol, and the Geneva
Convention. Thus, India continues to be a party to three important international instruments for
the recognition and enforcement of foreign arbitral awards. It may be argued, from a comparative
perspective, that there is no change in the legal position relating to enforcement of foreign
awards in India by virtue of the enactment of the 1996 Act. However, under the 1996 Act, any
award made outside India, whether or not made on an arbitration agreement governed by the
laws of India, will be treated as a foreign award. The Supreme Court of India, in Harendra H
Mehta v Mukesh H Mehta,22 following its earlier judgment in Renusagar Power Co Limited v
General Electric Co,23 held that the Foreign Awards Act is a complete Code in itself providing
for all the possible contingencies in relation to foreign awards. Once, it is held that an award is a
foreign award, the provisions of the Foreign Awards Act would apply and where the conditions
for enforcement of such an award exist as mentioned in s 7 of this Act, the Court shall order the
award to be filed and shall proceed to pronounce judgment granting award and upon the
judgment so pronounced, decree shall follow. In the above judgment it was also held that it is not
material for the purpose of enforcement of a foreign award under the said Act, that in any other
country other than India, a judgment has already been passed by a court of competent jurisdiction
in terms of that award.

Therefore, the jurisdiction of the Indian courts to enforce the award will not be ousted on any
such ground alone. It has also been settled by the Indian Supreme Court in the above judgment
that a foreign award under the provisions of the Foreign Awards Act does not require registration
under the Indian Registration Act, 1908. In relation to the enforcement of a foreign award, the
Supreme Court, in Fuerst Day Lawson Ltd v Jindal Exports Ltd,24 held that there is no need to

22
Harendra H Mehta v Mukesh H Mehta, AIR 1999 SC 2054.

23
Renusagar Power Co Limited v General Electric Co., AIR 1985 SC 1156.

24
Fuerst Day Lawson Ltd v Jindal Exports Ltd, AIR 2001 SC 2293.
take out separate proceedings to enable the court to decide the enforceability of an award or to
make it binding as an order of the court or a decree and execute the award. The Supreme Court
made the following observation that, Part II of the Act relates to enforcement of certain foreign
awards. Chapter 1 of this Part deals with New York Convention Awards. Section 46 of the act
speaks as to when a foreign award is binding. Section 47 states as to what evidence the party
applying for the enforcement of a foreign award should produce before the Court. Section 48
states as to the conditions for enforcement of foreign awards. As per Section 49, if the Court is
satisfied that a foreign award is enforceable under this Chapter, the award shall be deemed to be
a decree of that Court and that Court has to proceed further to execute the foreign award as a
decree of that Court. If the argument advanced on behalf of the respondent is accepted, the very
purpose of the Act in regard to speedy and effective execution of foreign award will be defeated.
Examining the changes brought about by the 1996 Act, the Indian Supreme Court in Thyssen
Stahlunion GMBH v Steel Authority of India Ltd,25 held that, a matter of fact if we examine the
provisions of Foreign Awards Act and the new Act there is not much difference for the
enforcement of the foreign award.

Under the Foreign Awards Act when the Court is satisfied that the foreign award is enforceable
under that Act the Court shall order the award to be filed and shall proceed to pronounce
judgment accordingly and upon the judgment so pronounced a decree shall follow. Sections 7
and 8 of the Foreign Awards Act respectively prescribe the conditions for enforcement of a
foreign award and the evidence to be produced by the party applying for its enforcement.
Definition of foreign award is same in both the enactments.

Sections 48 and 47 of the new Act correspond to ss 7 and 8 respectively of the Foreign Awards
Act. While s 49 of the new Act states that where the Court is satisfied that the foreign award is
enforceable under this Chapter (Chapter I, Part II, relating to New York Convention Awards) the
award is deemed to be decree of that Court. The only difference, therefore, appears to be that
while under the Foreign Awards Act a decree follows, under the new Act foreign award is
already stamped as the decree. Thus, if provisions of the Foreign Awards Act and the new Act

25
Thyssen Stahlunion GMBH v Steel Authority of India Ltd, AIR 1999 SC 3923.
relating to enforcement of the foreign award are juxtaposed there would appear to be hardly any
difference. Therefore, the position in law with regard to implementation of foreign arbitral
awards remains the same in the context of the statutory provisions applicable. Undoubtedly, with
an increasing number of litigants resorting to alternative dispute resolution, for example
arbitration, fewer complications should arise when it comes to enforcement of foreign awards.
The focus of the 1996 Act is the minimization of court intervention in the arbitration process. In
enforcement of foreign arbitration awards, the focus of the 1996 Act is to have minimal Court
intervention. Even Court verdicts, i.e. judicial interpretations indicate such a view. Maybe, for
disputes within India, such alternative dispute settlement mechanisms ought to be followed
rather than conventional and protracted adversary litigation in the Indian Courts.
 CONCLUSION

Thus, from the above, it can be inferred that if a judgement is passed by a foreign court against
an Indian person, the decree or award may not be enforceable against him due to the operation of
section 13 of the Civil Procedure Code, 1908. In the said cases the plaintiff is required to come to
the Indian Court either to get the foreign judgement executed or to file a petition under section
44 A of the Civil Procedure Code, 1908 or should file a fresh suit for the enforcement of the
judgement. Once the said judgement is recognized by a foreign court, then the procedure for
enforcement of the said judgement from a superior court as per section 51 of the Civil Procedure
code, 1908 will be initiated.

The ease of execution depends on whether the foreign judgment is from a reciprocating territory.
In terms of Section 44A of the code, judgment from a reciprocating territory should be executed
as if it were passed by a district court in India. On the other hand, executing a judgment from a
non-reciprocating territory requires a civil suit on the foreign judgment to be filed before the
competent court. Therefore, execution of a judgment from a reciprocating territory is
comparatively more efficient.

The last formal reform suggestion that was felt to be brought about in the Code, was passed in
2009 through the Law Commission of India’s 219th report entitled “Need for Family Law
Legislations for Non-resident Indians”, which specifically dealt with foreign judgments relating
to divorce and suggested reforms accordingly. However, no specific reform proposal relating to
enforcement and recognition of foreign judgments or decrees is underway.

Thus, analysis of the legal provisions involved in enforcement of foreign decrees in India
emphasizes the need for the Indian courts not to treat the summons received from foreign courts
casually and to efficiently adjudicate whether; the foreign courts had decided that matter
judiciously or not. The same is said to be done in respect of the principle of comity and leads to a
world order in judiciary which is time consuming and world friendly. Lastly, it can be concluded
that foreign decree in India can only be executed if the same is passed by the courts of
reciprocating territory and should pass the tests as laid down in Section 13 of the Code of Civil
Procedure, 1908.