Under Section 13 of the Code, a foreign judgement is conclusive and will operate as res-judicata between the parties thereto except in the cases mentioned therein.
In other words, a foreign judgement is net conclusive as to any matter directly adjudicated upon, if one of the conditions specified in clauses (a) to (f) of Section 13 is satisfied and it will then be open to a collateral attack.
ADVERTISEMENTS:
In the following six cases, a foreign judgement shall not be conclusive (Section 13(a) to (f)).
A. Foreign Judgement not by a Competent Court:
It is a fundamental principle of law that the judgement or order passed by the Court which has no jurisdiction is null and void. Thus, a judgement of a foreign Court to be conclusive between the parties must be a judgement pronounced by a Court of competent jurisdiction.
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The leading case on the subject is Gurdyal Singh vs. Rajah of Faridkot. In that case, A filed a suit against B in the Court of the Native State of Faridkot, claiming Rs. 60,000/- alleged to have been misappropriated by B, while, he was in A’s service at Faridkot. B did not appear at the hearing, and an ex-parte decree was passed against him. B was a native of another Native State, Jhind in 1869, he left Jhind and went to Faridkot to take up service under A. But in 1874, he left A’s service and returned to Jhind. The present suit was filed against him in 1879; when he neither resided at Faridkot nor was he domiciled there.
On these facts, on general principles of International Law, Faridkot Court had no jurisdiction to entertain a suit against B based on a mere personal claim against him. The decree passed by Faridkot Court, in these circumstances an absolute nullity. When A sued B in a Court in British India, against B on the judgement of the Faridkot Court, the suit was dismissed on the ground that Faridkot Court had no jurisdiction to entertain the suit. The mere fact that the embezzlement took place at Faridkot, was not sufficient to give jurisdiction to the Faridkot Court. But if B was residing at Faridkot at the date of the suit, it would have had complete jurisdiction to entertain the suit and to pass a decree against him.
B. Foreign Judgement not on merits:
ADVERTISEMENTS:
In order to operate as Res- judicata, a foreign judgement must have been given on merits of the case. A Judgement is said to have been given on merits when, after taking evidence and after applying mind regarding the truth or falsity of the plaintiffs case, the Judge decides the case in one way or the other.
Thus, when the suit is dismissed for default of appearance of the plaintiff or for non-production of the document by the plaintiff even before the written statement was filed by the defendant, or where the decree was passed in consequence of default of defendant in furnishing security or after refusing leave to defend, such judgements are not in merits.
C. Foreign Judgement against International or Indian Law:
A judgement based upon an incorrect view of international law or a refusal to recognise law of India where such law is applicable is not conclusive. But the mistake must be apparent on the face of the proceedings.
Thus, where in a suit instituted in England on the basis of a contract made in India, the English Court erroneously applied English Law, the Judgement of the Court is covered by this clause in as much as it is a general principle of Private International Law that the rights and liabilities of the parties to 8 contract are governed by the place where the contract is made (Lexloci Contractus).
D. Foreign Judgement opposed to Natural Justice:
ADVERTISEMENTS:
It is the essence of a judgement of a Court that it must be obtained after due observance of the judicial process, i.e., the Court rendering the judgement must observe the minimum requirements of natural justice it must be composed of impartial persons, acting fairly, without bias, and in good faith, it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case.
A judgement which is the result of bias or want of impartiality on the part of a Judge will be regarded as a nullity and the “Trial Coram Non Judice”.
E. Foreign Judgement obtained by fraud:
It is a well established principle of Private International Law that if a foreign judgement is obtained by fraud, it will not operate as Res-Judicata. Cheshire rightly state: “It is firmly established that a foreign judgement is impeachable for fraud in the sense that upon proof of fraud it cannot be enforced by action in England.
“All judgements whether pronounced by domestic or foreign Courts are void if obtained by fraud, for fraud vitiates the most solemn proceeding of a Court of justice. Explaining the nature of fraud, DE GREY, C.J., stated that through a judgement would be Res Judicata and not impeachable from within, it might be impeachable from without.
F. Foreign Judgement founded on a breach of Indian Law:
Where a foreign judgement is founded on a breach of any law in force in India, it would not be enforced in India. The rules of Private International Law cannot be adopted mechanically and blindly.
Every case which comes before a Indian Court must be decided in accordance with Indian Law. It is implicit that the foreign law must not offend our Public Policy.
Thus a foreign judgement for a gaming debt or on a claim which is barred under the Law of Limitation in India is not conclusive. Similarly, a decree for divorce passed by a foreign Court cannot be confirmed by an Indian Court if under the Indian Law the marriage is indissoluble.