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Report No. 65

II. Section 13, Code of Civil Procedure, 1908

4.2. Section 13, Code, of Civil Procedure, 1908.-

We may first refer to section 13 of the Code of Civil Procedure, 1908. That is a general provision as to the conclusive effect of foreign judgments. This section is operative only when a number of conditions are fulfilled, of which the most important is the condition that the foreign court must be a court of competent jurisdiction. While, therefore, this section does empower Indian courts to recognise foreign judgments and enforce them in certain cases, it postulates that the foreign court must be a competent one and the question in what circumstances the foreign court is to be regarded as competent, is not answered by the section. The section reads:

"13. When foreign judgment not--conclusive.-A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the fact of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India."

4.3. Section 14, Old Code.-

It may be noted that in the Code of Civil Procedure of 1882, the section relating to foreign judgments1-section 14-began as follows:-

"14. No foreign judgment shall operate as a bar to a suit in British India......"

The negative form of this section in the Code of 1882 made it clear that it was an exception to the general provisions of the section dealing with res judicata.2 But for the provisions of this section relating to foreign judgments, the general bar of res judicata might have applied.3

1. Section 14, Code of Civil Procedure, 1882.

2. Section 11 of the present Code; section 13 of the Code of 1882.

3. Para. 4.4, infra.

4.3A. Section 13-A comprehensive provision.-

As one looks at section 13 of the Code of Civil Procedure, 1908, one cannot but be struck by its comprehensive nature and, at the same time, its precision and conciseness. Each of these six exceptions forms an effective tool in the hands of an Indian Court, whereby these courts can legitimately refuse to recognise any foreign judgment.

4.3B. It may be pointed out that common law principles of res judicata are also applicable to foreign judgments, as to judgment of our own courts. Section 131 of the Code of Civil Procedure, 1908, became necessary in order to qualify the wider provisions of section 11 of the same Code, which-but for a specific provision,-might have applied to foreign judgments also.

1. Section 13, Code of Civil Procedure, 1908.

4.4. Competent Court.-

We may now mention a few aspects of section 13. It is well-settled that when present section 13(c)1 speaks of "international law", and when present section 13(a) speaks of a court of competent jurisdiction, not merely intra-territorial competence, but also the extra-territorial competence2-3 of the foreign court, is predicated.

1. Para. 4.2, supra.

2. Mohan Lal v. Prem Suck, AIR 1956 Nag 273.

3. Abdul Wazid v. Vishwanathan, AIR 1953 Mad 261.

4.5. When conclusive.-

The provision in section 13 of the Code that a foreign judgment is conclusive, is of interest. In Fuller v. Fullers, (1831) 1 Myl&K 297: 39 ER 693. Brougham L.C. stated-"whatever irregularities or mistakes might have been committed in the course of the foreign suit", not amounting to fraud, "the Court of Chancery in England had no jurisdiction as a court of appeal, to review the decrees of the Court of Chancery in Jamaica, merely because they had proceeded on ignorance of facts or error of law."

These observations show the significance of the word "conclusive". That word also indicates that the judgment is unimpeachable,-unless, of course, one of the specified vitiating circumstances exists.

4.6. Effect on third parties.-

In a Madras case,1 Holloway J., and in a Calcutta case,2 Sir Barnes Peacock C.J. elaborately reviewed the law regarding judgments in divorce cases and how far they were admissible in evidence. Sir Barnes Peacock C.J. observed:

"the effect of a decree in a suit for a divorce a vinculo matrimoni is to cause the relationship of husband and wife to cease. It is conclusive upon all persons that the parties are no longer husband and wife; but it, is not conclusive or even prima facie evidence against strangers that the cause for which the decree was pronounced existed. For instance, if a decree between A and B were granted upon the ground of adultery of B with C, it would be conclusive as to the divorce, but it would not be even prima facie evidence against C that he was guilty of adultery with B, unless he were a party to the suit."

1. Yarkalamma Nagamma v. A. Naremma, (1864-65) 2 MHCR 276.

2. Kanhya Lal v. Radha Churn, (1867) 7 WR 338 (344): Meng 1_,J Supp Vol. 662 (PB).

4.7. Bar to suit.-

A foreign judgment, when conclusive under section 13 of the Code of Civil Procedure, 1908, may be pleaded as a defence as a bar to a suit in India1 provided it is given on the merits2 as prescribed by section 13.

1. Chockalingam v. Duraiswami, AIR 1928 Mad 327 (336).

2. Sonta Singh v. Balla Singh, 1919 Punj Record No. 14, p. 30.

4.8. Natural justice.-

It may be noted that section 13(d) of the Code of Civil Procedure, 1908, also provides that a foreign judgment is not conclusive when the proceedings in which the judgment was obtained are opposed to natural justice. In that section, the expression "natural justice" refers to the form of procedure, and not to the merits.1 Failure to appoint a guardian for a minor may render the foreign judgment unenforceable under this section.2

1. Rama Shenoi v. Hallagana, 1918 ILR 41 Mad 205.

2. Govindan v. Laxmi Bharathi, AIR 1964 Ker 244 (248), para. 22.

4.9. Effect of the word "except".-

It is not very clear what is the effect of a foreign judgment where the judgment is vitiated by one or more of the factors mentioned in clauses (a) to (f) of section 13. The judgment is certainly not conclusive-as section 13 itself enacts. But does it retail any relevance at all ? This much is clear-that section 13 will not apply where the vitiating circumstances exist, and the judgment would not be conclusive. But what would be the position regarding relevance where a vitiating factor exists? It would seem, on principle, that the judgment should be disregarded totally. The word "except" in the section is important in this context. As regards the meaning of the word "unless"-an analogous word-Lord Esher, M.R., pointed out in the Carl XV1:

"When you have the word 'unless' in the English language, it carries with it that, if something happens, then what has been said before will not apply."

1. Carl XV, 1892 Probate 324: 68 Law Times Reports 149.

4.10. Indian law as to recognition of judgments contrary to international law.-

A foreign judgment contrary to the principles of international law may be impeached in India.1 This general provision is also recognised by section 13(c) of the Code of Civil Procedure, 1908.

1. (a) Nallalambi v. Ponnuswami, ILR 2 Mad 400.

(b) Hinde v. Ponnah, ILR 4 Mad 359.

(c) Bikrame v. Bir, 1888 PR 191.

(d) Christian v. Delanney, (1900) 3 CWN 614.

4.11. Other provisions of the Code.-

It may be noted that while section 13 of the Code is relevant for the purpose of recognition of foreign judgments in general, it does not deal with enforceability. One has to file a suit on a foreign judgment in order to obtain a decree which can be executed. The Code of Civil Procedure also contains certain provisions1 as to the direct enforcement of certain foreign judgments. But these provisions are not material as regards divorces, for the reason that a judgment of divorce, or a judgment granting legal separation, does not, in general need "enforcement".

1. Sections 44 and 44A, Code of Civil Procedure, 1908.

412. Ex parte judgment.-

Even a decree which is pronounced in absentem by a foreign, court is valid and executable in the country of the forum by which it was pronounced, when authorised by special local legislation.1 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 jurisdiction on the domestic courts over the foreigners either generally or under specified circumstances. Section 20(c) of the Code of Civil Procedure, 1908, confers jurisdiction on a court in India over foreigners, if the cause of action arises within the jurisdiction of that court. Hence a decree passed against a foreigner in such circumstances is not an absolute nullity.2 It may be more appropriate to say that the decree in question is not executable in courts outside this country.

1. Lalji Raja v. Hansraj Vathuram, AIR 1971 SC 974 (977).

2. Lalji Raja v. Hansraj Vathuram, AIR 1971 SC 974 (977).

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