Articles, Commercial Litigation
For businesses that obtain favorable judgments in foreign courts-whether in Singapore, the United Kingdom, the UAE, or the United States-the central practical question is whether and how that judgment can be enforced against a defendant whose assets are in India. The enforcement of foreign court judgments in India follows a two-track regime under the Code of Civil Procedure, 1908 (CPC), depending on whether the judgment originates from a country designated as a “reciprocating territory” by the Central Government. Understanding these routes, the grounds for resisting enforcement, and the practical obstacles involved is essential for any international commercial litigant with India-based counterparties.
The Two-Track Regime: Reciprocating and Non-Reciprocating Territories
Track 1: Section 44A CPC, Execution as a Decree (Reciprocating Territories)
Section 44A of the Code of Civil Procedure, 1908 provides the direct enforcement route for judgments from reciprocating territories. Where a judgment is from a final judgment of a superior court of a country designated by the Central Government as a “reciprocating territory,” the judgment can be enforced as if it were a decree of the Indian court that received the certified copy.
Current Reciprocating Territories: The Central Government has notified a number of countries as reciprocating territories under Section 44A. The list includes (as of the time of this writing):
- United Kingdom of Great Britain and Northern Ireland
- Republic of Singapore
- Malaysia
- New Zealand
- Hong Kong (Special Administrative Region)
- United Arab Emirates
- Trinidad and Tobago
- Bangladesh
- Papua New Guinea
- Fiji
Important: The United States of America is not a reciprocating territory under Section 44A CPC. Judgments from US courts cannot be enforced through the direct execution route and must follow Track 2 (fresh suit).
Procedure for Section 44A enforcement:
- Obtain from the foreign court a certified copy of the judgment and a certificate from the foreign court stating the extent to which the judgment has been satisfied or remains unsatisfied.
- File these certified documents before the District Court in India having jurisdiction over the judgment-debtor’s assets or place of business.
- The District Court treats the foreign judgment as a decree of an Indian court and proceeds to execute it through all available modes of execution under Order XXI CPC-attachment and sale of property, garnishee of bank accounts, arrest and detention, etc.
No fresh trial is required: The court does not re-examine the merits of the foreign judgment in Section 44A proceedings. The foreign judgment is conclusive subject to the Section 13 exceptions (see below).
Track 2: Fresh Suit on the Foreign Judgment (Non-Reciprocating Territories)
For judgments from non-reciprocating territories-most notably the United States, most EU member states, and countries not notified under Section 44A-there is no direct enforcement route. The judgment creditor must file a fresh civil suit in an Indian court on the basis of the foreign judgment.
In a fresh suit:
- The foreign judgment is treated as evidence of the debt-it creates a strong prima facie case, but the Indian court conducts its own proceedings.
- The defendant has the opportunity to raise defences, including the Section 13 grounds for challenging the conclusiveness of the foreign judgment.
- The Indian court adjudicates the matter as a fresh suit, resulting in an Indian decree that can then be executed.
Limitation: A suit on a foreign judgment must be filed within three years of the date of the judgment (Article 101 of the Schedule to the Limitation Act, 1963, or the applicable article depending on the nature of the claim).
Disadvantage: Fresh suit proceedings can be time-consuming (2-5 years before an Indian decree is obtained), and the defendant has more opportunities to contest the claim.
Section 13 CPC: When Is a Foreign Judgment Not Conclusive?
Whether a foreign judgment is sought to be enforced directly under Section 44A or through a fresh suit, its conclusiveness in India is subject to Section 13 of the CPC, which lists six grounds on which a foreign judgment is not conclusive:
Ground 1: Jurisdiction of the foreign court was not competent
The foreign court must have had jurisdiction over the subject matter and the parties. A judgment from a court that lacked competent jurisdiction over the defendant (e.g., because the defendant had no presence or connection to the foreign jurisdiction) is not conclusive.
Ground 2: The judgment was not on the merits
A foreign judgment obtained by default, ex parte, or on technical grounds without adjudication of the merits may not be conclusive. If the defendant was not given a genuine opportunity to be heard, the judgment is not “on the merits.”
Ground 3: Incorrect view of international law or refusal to recognise Indian law
Where the foreign court applied an incorrect rule of international law, or wrongly refused to apply the law that ought to have governed the dispute (typically in conflicts of law situations), the judgment is not conclusive.
Ground 4: The foreign judgment was obtained by fraud
A judgment obtained through fraud-including fraud on the foreign court, fraud by the applicant in presenting evidence, or fraud in the jurisdiction-is not conclusive. This is a universal principle of international comity.
Ground 5: Breach of natural justice
Where the foreign proceedings violated the fundamental principles of natural justice (audi alteram partem or nemo iudex in causa sua)-for instance, if the defendant was not given adequate notice or a real opportunity to present its case-the judgment is not conclusive.
Ground 6: The foreign judgment is contrary to Indian law or public policy
Under Section 13(f), a foreign judgment that is contrary to Indian law or against public policy will not be recognised. The concept of public policy was historically broad but has been significantly narrowed for arbitral awards by the Supreme Court.
The “public policy” ground post-*Ssangyong: In Ssangyong Engineering and Construction Co. Ltd. v. National Highways Authority of India (NHAI)* (2019 SCC Online SC 677 [2019 (15) SCC 131]), the Supreme Court-while addressing the enforcement of an arbitral award-clarified that the “public policy” ground for challenge is confined to:
- Fundamental policy of Indian law (core constitutional principles, fundamental statutory provisions)
- Basic notions of morality and justice
- The award/judgment is patently illegal on the face of the record
This narrowed public policy standard, initially developed in the arbitration context, has influenced the approach of courts to Section 13(f) challenges to foreign judgments-courts are increasingly reluctant to invoke “public policy” as a broad ground to refuse recognition of foreign judgments.
Practical Obstacles in Foreign Judgment Enforcement
Language and documentation: Certified copies of foreign judgments must often be translated (if in a foreign language) and authenticated (apostille or notarisation, as applicable) before being filed in India.
Finding the right court: The judgment creditor must identify which Indian court has jurisdiction to execute the foreign judgment-typically the court in whose district the judgment-debtor’s assets are located.
Asset identification: Before enforcement proceedings are useful, the creditor needs to identify attachable assets in India (bank accounts, real estate, shareholding in Indian companies). This requires independent investigation.
Section 44A procedure: The Indian court must verify that the foreign judgment satisfies the Section 44A requirements and that none of the Section 13 grounds apply. This may require a brief hearing if the judgment-debtor raises objections.
Time: Even for reciprocating territory judgments, the execution process in India can take 6-18 months from the date of filing due to court delays, adjournments, and challenges.
Key Cases
*Marine Geotechnics LLC v. Chettinad International Coal Terminal Pvt. Ltd. (CGGV)* (2015 SC): The Supreme Court confirmed the applicability and limitations of Section 44A CPC, including the requirement that only judgments of “superior courts” of reciprocating territories qualify for direct execution.
*Badat & Co. v. East India Trading Co.* (1964 SCR (4) 19): The Supreme Court set down the foundational principles for the interpretation of Section 13 CPC and identified the scope of the “conclusiveness” of foreign judgments in India.
Key Takeaways
- Foreign judgments from reciprocating territories (including UK, Singapore, UAE, Hong Kong, Malaysia) can be enforced in India by filing certified copies before the District Court under Section 44A CPC; no fresh trial is required.
- For non-reciprocating territories (including the USA), a fresh civil suit must be filed in an Indian court; the foreign judgment is persuasive but not directly executable.
- Indian courts will not recognise a foreign judgment on any of the six grounds in Section 13 CPC-including fraud, breach of natural justice, lack of jurisdiction, and public policy-but the public policy ground has been narrowed post-Ssangyong (2019) to fundamental principles of Indian law.
This article is for informational purposes only and does not constitute legal advice. Readers should seek appropriate professional counsel for their specific circumstances.
META TITLE: Foreign Judgment Enforcement India: CPC Section 44A Guide
META DESCRIPTION: How to enforce foreign court judgments in India-Section 44A CPC reciprocating territories route vs fresh suit, Section 13 conclusiveness grounds, and practical obstacles explained.