FOREIGN JUDGMENTS / judgment is given on merit / Exparte decree of the foreign Court / challenged by a stranger / Foreign divorce / Grant of Probate by Foreign Court / custody of child / recovery by a Foreign Court / decree passed in a summary procedure/
EXECUTION OF FOREIGN DECREE/
CONCLUSIVENESS OF FOREIGN JUDGMENTS IN INDIA
[Section 13 Civil Procedure Code]
ACCEPTANCE OF FOREIGN JUDGMENTS:
Acceptance of foreign judgement when not contradictory to principle of law laid down by Indian legislature. If such foreign judgement is contrary to Indian law it will not be acceptable – for detailed information kindly visit refer: AIR 2003 Cal.105 Murari Ganguly and others Vs.Kanailal Garai and others.
CONCLUSIVENESS OF FOREIGN JUDGMENTS:
Exparte decree of the foreign Court cannot be presumed to be on merit by the aid of Section 114(e) of Evidence Act. Where ex parte judgment passed granting decree for money but nothing indicated whether any documents were looked into or whether merits of the case considered. Such judgements will not be enforceable in India.
For more details kindly visit:
M/s International Woollen Mills Vs.M/s Standard Wool (U.K.) Ltd. AIR 2001 SC 2134 – 2001(5)SCC 265 – 2001 (3) Rec Civ R 158 – 2002 (1) Mad LW 28 – 2001(2) LR 1765 – 2001(20 Cur CC 148 – 2001 (2) Civil Court C 448 – 2001 (44) All LR 354 – 2001 (3) All Mah LR 554
CONCLUSIVENESS OF FOREIGN JUDGMENTS:
Where a judgment is given on merit by a foreign Court, taking into consideration, Indian law, covering same ground as covered by the English Law under which the decree was granted, the conclusiveness of the decree, will not b e open to challenge. Mrs.Anoop Beniwal Vs. Dr.Jagbir Singh Beniwal:AIR 1990 Del.305
Where the judgment was not on merit and the judgment was given ex parte only on the basis of pleadings and documents of the plaintiff – Defense filed before Hongkong Court not taken into consideration – Held the judgment being not on merit did not have force of law- For execution of such decree prior permission of Central Govt. was necessary. AIR 1990 Bom.170 –Algemene Bank Nederland NV Vs. Satish Dayalal Choksi.
FOREIGN COURT DECREE:
Decree passed by foreign Court cannot be challenged by a stranger to the proceedings unless it is proved that he had any preexisting rights and interest, which affected the decree adversely. Any subsequent event cannot clothe such a stranger with a right to challenge such a decree. [Deva Prasad Reddy Vs. Kamini Reddy and another, AIR 2202 Kant. 356 – 2002 (4) Rec. Civ R 758 – 2003 (1) Marri LJ 252 – 2002 (3) ICC 657 – 2002 (2) DMC 482 – 2002 (4) Civ LJ 295]
FOREIGN DIVORCE DECREE:
Foreign divorce decree where husband and wife were Hindus and governed by Hindu Marriage Act. When suit for judicial separation and maintenance was pending in Indian Court, husband obtained decree of divorce from the Court in USA though wife did not submit to the jurisdiction of USA, held, such decree obtained by husband was not enforceable in India [AIR 2003 Del. 175 – Smt.Anubha Vs. Vikas Aggarwal and Others]
GRANT OF PROBATE BY FOREIGN COURT:
Grant of Probate by Foreign Court supplemented by ancillary probate under Section 228 of Indian Succession Act – Decision of the probate Court will be binding without approaching the Civil Court – Such judgment will operate judgment in term and cannot be challenged in the Civil Court [ AIR 1992 Mad. 136 – 1991 (2) LW 487 – Alagammai and other –Vs- V.Rakammal]
Decree of Divorce passed by a Foreign Court- Grounds mentioned under Section 13 Clauses (a) to (f) not satisfied – Neither was there any proof to bring the case within the ambit of said clauses of Section 13 C.P.C. – Held, the decree passed by the foreign Court will be binding on the parties – The law contained in Sections 13 and 14 C.P.C. which is not merely rules of procedure but rules of substantive law recognizing conclusiveness of a foreign judgment – In such circumstances the foreign decree will be binding on the parties –[AIR 1991 Ori 263 : Dr.Padmini Mishra Vs Dr. Ramesh Chandra Mishra ] 1990 70 Cut. LT 673.
FOREIGN JUDGMENT – Application for recognition of foreign judgment filed which could be refused if it is found contrary to the public policy of the country where such judgment is sought to be invoked according to law of the said country. In the field of Private International Law courts refused to apply rule of foreign arbitral award if it is found that the same was contrary to public policy. [AIR 1994 SC 860 Renusagar Power Company Ltd., Vs. General Electric Co.] 1994(1) SCC Supp 644.
CUSTODY OF MINOR CHILD:
Where by judgment of a foreign court, custody of child was given to mother who was foreign national – In the absence of any exceptions under Section 14 and 14, the judgement of foreign court, will be binding on the parties. In view of the said order of the foreign judgment, the mother will be entitled to custody of the child[AIR 1994 P & H 309 Mrs.Jacquiline Kapoor Vs. Surinder Pal Kapoor] 1994(3) Pun LR 544.
Order of Supreme Court of Ontario (Canada) granting interim custody of the child with the mother – However father removed the child without authorization, in India- Held order of the Ontario Court was fully valid and given effect to – Mere allegation that the mother was living in adultery, will be of no consequence.[AIR P & H 103 Mrs.Kuldeep Sidhu Vs. Chanan Singh and others]
RECOVERY OF DEBTS DUE TO BANK AND FINANCIAL INSTITUTIONS ACT 1993
Where Decree was passed for recovery by a Foreign Court, the Tribunal under the said Act can start execution proceedings related to the said foreign judgment. In this regard provision of Section 44-A will not prevail over Section 17 of 1993 Act [Bank of India Vs.Harshadrai Odhavji AIR 2002 Bom. 449 : 2002(3) Mah LR 735 : 2002 (3) Bank Cas 182 : 2002 (4) Cur CC 5 : 2002 (5) Bom CR 228.
EXECUTION OF FOREIGN DECREE
Decree of foreign Court – Execution of such decree, will be barred when it is found that decree was not on merit – where the decree was passed ex parte, only on the pleadings of plaintiff without evidence, such decree is not executable.[Gurdas Mann and others Vs. Mohinder Singh Brar. AIR 1993 P & H 92 : 1993(1) Pun LR 518 : 1993 HRR 222]
Where ex parte decree passed in a summary procedure under Rule 14 of Rules of Supreme Court of England – It was found that plaintiff evidence was not considered and defendant had filed no defense – Therefore, such foreign judgment was not executable in India [ Middle East Bank Ltd. Vs. Rajendra Singh Sethia AIR 1991 Cal. 335]
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