Legal opinion in respect of Execution of a Decree in India.
To,
Subject : Legal opinion in
respect of Execution of a Decree in India.
Dear Sir,
I am giving this Legal opinion
in respect of Execution of a Decree in India as per our discussion :
1.
The law relating to the execution of decrees is to be found in section
36 to 67, 73, 74 and 135 and Order XXI of the Code of Civil Procedure, 1908
(No. 5 of 1908). The Code imposes on the Judge considerable responsibilities in
execution matters. The work of execution is carried out by the Court through
its agents. It is essential, according to the scheme of the Code, that the
Court should know fully and precisely how far its decrees are satisfied. The
Court has the responsibility of preventing the sale of property in which the judgment
debtor does not prima facie appear to have an interest; of seeing that property
of a value far in excess of the amount of debt is not sold; of seeing that a
reasonable price is realised and of securing that intending purchasers shall
have the opportunity of knowing all that it is material for them to know
concerning the property. As the sale is held by the Court, it must be conducted
in a way just to all parties concerned.
Applications
for execution of decrees and orders thereon 2.
Except an application made immediately after a decree is passed,
every application for execution shall be made in writing in Form No. 6,
Appendix E, and signed and verified.
3.
As soon as an application for execution is presented, the date of
presentation shall be endorsed thereon by the Clerk of the Court or such other
Officer as may be appointed by the Court.
4.
The next step is the examination of the application. This
examination should be particularly directed to ascertaining :
(i)
Whether it is in conformity with Form No. 6 in Appendix E,
Schedule I of the Code.
(ii)
Whether it is properly signed and verified.
(iii)
Whether it contains the particulars about the number of the suit,
names of the parties and date of the decree.
(iv)
Whether it contains information as to whether an appeal has been
preferred from the decree.
(v)
Whether it states if any payment or adjustment of the matter in
controversy has been made between the parties subsequent to the decree.
(vi)
Whether it contains information about previous applications for
execution of the decree, if any.
(vii)
Whether it contains particulars about the dates of previous application, if any, and their
results.
(viii)
Whether it mentions the amount of costs, if any, awarded.
(ix)
Whether it gives the name of the person against whom execution of
the decree is sought.
(x)
Whether it mentions the mode in which the assistance of the Court
is required.
(xi)
Whether the decree-holder has stated in grounds or given an
affidavit stating the grounds for arrest in the application in case when he
wants to arrest and to detain the judgment debtor in Civil Prison.
(xii)
Whether it is filled in time.
(xiii)
Whether it is accompanied by a copy of the decree.
5.
Note : Until such time the decree is not drawn up, a certified
copy of the lase paragraph of the judgment, indicating the names and addresses
of all the parties to the suit, shall be considered sufficient for the purpose
of initiating the execution of the decree.
6.
A certified copy of the decree must, however, be produced for
substituting the copy of the last paragraph of judgment, as soon as the decree
is drawn up, (Rule 6A (2)(b) Order XX, C.P.C.)
(xiv) Whether in the case of an
application for attachment of movable property, the application is accompanied
by an annexure showing the inventory of the property to be attached and its
description. (xv) Whether, in the case of an
application for attachment of immovable property, it contains sufficient
details of the description of the property to enable its identification, and
specifies the share or interest of the judgment-debtor, as required by rule 13
of Order XXI. (xvi) Whether, in the case of an
application for attachment of land assessed to the payment of revenue to the
Government, it is accompanied by a certified copy of the current entry in the
Record of Rights or Register of Mutations or Register to Tenancies in regard to
such lands. (xvii) Whether, where the
application is by an heir of the deceased decree-holder a Succession
Certificate is required. 7.
The Officer examining the application for execution shall also
verity the correctness of the particulars furnished by the applicant so far as
they can be ascertained from the records of the Court viz., Register of Suits, Register or applications for execution and
previous Darkhast proceedings. He should also ascertain whether any stay order
is received from the Appellate Court.
8.
If the Officer examining the application (darkhast) finds that it complies with all the requirements and is
correct in all respects, he should make an endorsement on the Darkhast
“Examined and ordered to be registered” with the date and his signature. If he
thinks that the Darkhast should be amended or corrected, he should refer the
matter to the Judge for orders.
9.
Where, upon examination, the application is found to be correct
and in order, it should be entered in the Register of applications for
execution. Two separate Registers should be maintained, one for applications
for execution of decrees in Regular Suits, and the other for Applications for
execution of decrees in Small Cause Suits.
10.
Every application for execution of a decree should be placed
before the Judge for orders as soon as possible, and in no case later than five
days from its presentation, without the special orders of the Judge.
11.
As regards the Linked Courts, a clerk should be sent to the
Station where the Judge sits on deputation for obtaining orders on the
application for execution of decree within the stipulated time mentioned above.
For this purpose, the Clerk of the Court or the Nazir should not be sent but
only the concerned clerk should be sent.
12.
Interlineations, erasures or corrections in the application should
be initialed by the party or his lawyer, and by the
Officer Reciving it.
13.
Applications for execution of decrees are proceedings in suit and
do not require fresh Vakalatnamas unless the engagement has been terminated by
the lawyer or the party engaging him. A memo of appearance should, however, be
filed by the lawyer stating that he had filed the vakalatnama in the suit and
his engagement still continues.
14.
On every application for execution, which is found to be in order,
the Court shall pass an order directing the execution of the decree or the
issue of a notice under rule 22 or under rule 37 of Order XXI, as the case may
require.
15.
The returnable date given in the notice which may be issued under
the above paragraph should be treated as the date of hearing of the application
and the application would be entered on the notice board accordingly.
16.
When a decree is ordered to be executed and process issued, the
Court should see that it is executed and, if it is not executed, ascertain the
reasons for its non-execution. Certain modes of execution are described in
rules 30 to 36 or Order XXI.
17.
A final order should be made upon every application for execution,
such order may also provide for costs. The final order may be, for example, the
dismissal of the application, as provided by Order XXI, rule 57, or an order
that no further proceedings are required or can be taken. An order that the
application is struck off or that it is consigned to the record is not a
satisfactory order.
18.
No final order should be made in any case unless the decree-holder
or his lawyer is present, or has had an opportunity of appearing and applying
for an adjournment or for taking further proceedings.
19.
When a darkhast is disposed of, an endorsement should be made
on the copy of the decree as to in what manner and to what extent the decree is
satisfied. The endorsement should be signed by the Judge and not by any
ministerial officer of the Court.
General Instructions for the
conduct of business in execution proceedings 20.
To prevent delay in executing processes, and to avoid
post-ponement of an attachment or sale consequent on the temporary absence of a
Civil Judge or the closing of his Court at other times than during vacations
and sanctioned holidays, the District Judge should direct the Civil Judge who
may be appointed under section 37 of the Bombay Civil Courts Act, XIV of 1869,
to perform the duties of the Judge of the vacations Court, to carry on all
processes for execution of decree or other proceedings in execution.
21.
If the record of the proceedings in the suit is not before the
Court, it may refuse to entertain an application for execution, unless the
application is accompanied by a certified copy of the decree. (See Order XX,
Rule 11(3)). But if the application is made to a Court, to which a copy of the
decree has been sent under rule 6 of Order XXI of the Civil Procedure Code, a
fresh copy of the decree need not be produced wit
The execution of the Foreign Decrees/ Judgments
in India22.
The word Foreign Decrees/ Judgments
simply connotes a final adjudication on an issue of Law whereby the rights of
parties are conclusively determined by a Court situated outside India and not
established or continued by the authority of the Central Government.
23.
The execution of the decrees and
judgments in India are governed by the procedure as laid down in “The
Code of Civil Procedure, 1908”. The execution of decrees though is a
procedural law but the relevant section of the Code of Civil Procedure makes it
a substantive law. Let us understand the difference between the two. The Substantive
Law is one which determines the rights and liabilities of parties or
confers legal status or imposes and denies the nature and extent of legal
duties. The Procedural Law on the other hand prescribes the
practice, procedure and machinery for the enforcement or recognisition of legal
rights and liabilities by a court of law or other recognized or a properly
constituted tribunal. The few instances of Substantive Law are the Indian
Contract Act, 1872, theTransfer of Property Act, 1882 and
the Industrial Disputes Act, 1972. Whereas Indian Evidence Act,
1872, the Limitation Act, 1963 and Code of Civil Procedure, 1908 are a few
examples of Procedural Law. Thus a procedural law is always subservient to
substantive law. Nothing can be given by the procedural law that is not sought
to be given b a substantive law, and nothing can be taken away by a procedural
law that is given by a substantive law[1].
24.
As the Code of Civil Procedure has
been enacted to consolidate and amend the laws relating to the procedure to the
Courts of Civil Judicature, and the execution of a foreign decree being a
matter related to Civil Judicature, the same are to be executed keeping in view
the conditions as enumerated in Section 13, Section 38, Section 39, Section 40,
Section 44-A and Section 45 of the Code of Civil Procedure, 1908.
25.
As held by the Supreme Court of India
in Moloji vs Shanker, the rules laid down in these sections are rules of
substantive law and not mere of procedure[2],
hence the executing court has to ensure the compliance of the conditions as
specified in the above stated sections.
26.
However, the execution of a foreign
decree may be stated to be conclusive as to any matter directly adjudicated
upon by the foreign court between the same parties or between parties under
whom they or any of them claim litigating under the same title, except in
circumstances as itemized in Civil Procedure Code.
Provisions
in Code of Civil Procedure, 1908 27.
Before proceeding to the case analysis
and legal position in regard to execution of foreign decrees in India, the
relevant sections of Code of Civil Procedure, 1908 are reproduced herein below:
“13.
When foreign judgment not conclusive.28.
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 face 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.
38.
Court by which decree may be executed.29.
A decree may be executed either by the
court which passed it, or by the Court to which it is sent for execution.
39.
Transfer of decree.(1)
The Court which passed a decree may,
on the application of the decree-holder, send it for execution to another
Court 1[of competent jurisdiction],—
30.
if the person against whom the decree
is passed actually and voluntarily resides or carries on business, or
personally works for gain, within the local limits of the jurisdiction of such
other Court, or
31.
if such person has not property within
the local limits of the jurisdiction of the Court which passed the decree
sufficient to satisfy such decree and has property within the local limits of
the jurisdiction of such other Court, or
32.
if the decree directs the sale or
delivery of immovable property situate outside the local limits of the
jurisdiction of the Court which passed it, or
33.
if the Court which passed the decree
considers for any other reason, which it shall record in writing, that the
decree should be executed by such other Court.
(1)
The Court which passed the decree may
of its own motion send it for execution to any subordinate Court of competent
jurisdiction.
(2)
For the purposes of this section, a
Court shall be deemed to be a Court of competent jurisdiction if, at the time
of making the application for the transfer of decree to it, such Court would
have jurisdiction to try the suit in which such decree was passed.
(3)
Nothing in this section shall be
deemed to authorise the Court which passed a decree to execute such decree
against any person or property outside the local limits of its jurisdiction.
44A. Execution of decrees passed by Courts in reciprocating
territory.(4)
Where a certified copy of decree of
any of the superior Courts of any 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.
(5)
Together with the certified copy of
the decree shall be filed a certificate from such superior Court stating the
extent, if any, to which the decree has been satisfied or adjusted and such
certificate shall, for the purposes of proceedings under this section, be
conclusive proof of the extent of such satisfaction or adjustment.
(6)
The provisions of section 47 shall as
from the filing of the certified copy of the decree apply to the proceedings of
a District Court executing a decree under this section, and the District Court
shall refuse execution of any such decree, if it is shown to the satisfaction
of the Court that the decree falls within any of the exceptions specified in
clauses (a) to (f) of section 13.
Explanation 1— “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 purposes of this
section; and “superior Courts”, with reference to any such territory, means
such Courts as may be specified in the said notification.
Explanation 2— “Decree” with reference to a superior Court means any
decree or judgment of such 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 to a fine or other penalty, but shall in no case include an arbitration
award, even if such an award is enforceable as a decree or judgment”.
Scope and Application of above stated Relevant Provisions34.
Section 13 of Code of Civil Procedure,
1908 can be termed as Security Check of all the decrees passed
by the foreign courts. Every foreign decree before its execution has to surpass
the conditions of its conclusiveness as specified above.
35.
A judgement of a foreign court to be
conclusive between the parties must be a judgement pronounced by the competent
court, and the competence contemplated by Section 13 is in an international
sense, and not merely by the law of the foreign state in which the Court delivering
judgment functions[3]. The
Privy Council has clarified the said situation in Carl Franz Adolf Otto
Integnohol vs Wing On & Co by holding that, where the
subject-matter is a res so situated as to be within lawful control of the State
under the authority of which a Court sits, and the authority has conferred on
the Court jurisdiction that decision is conducive whether according to the law
of another decide as to the disposition of the thing, and the court has acted
within that jurisdiction, that decision is conclusive, whether, according to
the law of another country, it might seem right or wrong[4].
36.
In actions in personam a
foreign Court can be considered as a court of competent jurisdiction only under
certain specified circumstances. The three cases in which it will be so considered
are summarized by Dicey[5] as
follows:
First Case: Where
at the time of commencement of the action the defendant was resident or present
in such country; so as to have the benefit, and be under the protection, of the
laws thereof.
Second Case: Where
the defendant is, at the time of judgment is action, a subject or citizen of
such country.
Third Case: Where
the party objecting to the jurisdiction of the courts of such country has, by
its own conduct, submitted to such jurisdiction, i.e. has precluded himself
from objecting thereto:
a)
by appearing as plaintiff in action or
counter-claiming; or
b)
by voluntarily appearing as defendant
in such action; or
c)
by having expressly or impliedly
contracted to submit to the jurisdiction of such court[6].
Judgment not on Merits37.
The Foreign Judgment shall not be
executed by the courts of India, if the same is not passed on the merits of the
case. In B.Nemichand Sowcar vs V.V.Rao[7] the
defendant submitted to the jurisdiction of the Kolar Court by filing its
written statement. There was no appearance by the counsel on behalf of the
Plaintiff. The court without hearing any evidence passed a decree in favour of
the Plaintiff. It was held that if decree passed in this way without any
evidence being given cannot be valid.
38.
It cannot be said that a decision on
the merits is possible only in cases where the defendant enters appearance and
contest the Plaintiff’s claim. Even where the defendant chooses to remain
Ex-parte and to keep out, it is possible for the Plaintiff to adduce evidence
in support of his claim (and such evidence is generally insisted on by the
courts in India), so that the court may give a decision on the merits of the case
after due consideration of such evidence and instead of dispensing with the
consideration and giving decree merely on account of default appearance of
defendant. In the former case the judgment will be one on the merits of the
case, while in the latter the judgment will be one not on the merits of the
case[8].
39.
The Supreme Court of India in International
Woolen Mills v. Standard Wool (U.K.) Limited[9] has held
that undoubtedly the burden of proving that the decree is not on merits would
be on the party alleging it. However Courts never expect impossible proofs. It
would never be possible for a party to lead evidence about the state of mind of
the judge who passed the decree. Of course, amongst other things, the party
must show that the decree does not show that it is on merits, if necessary the
rules of that Court, the existence or lack of existence of material before the
Court when the decree was passed and the manner in which the decree is passed.
Inaccurate
view of the law of India, or of International Law40.
A foreign decree may be impeached on
the ground that it is upon its face, founded upon an inaccurate view of the law
of India, or of International Law. The said condition is under Section 13 Sub
Sec (c) of Code of Civil Procedure, 1908. The precedents have shown that the said
clause comes in operation mainly in matrimonial disputes. The main reason for
this is that the conditions for divorce in Western countries are not as
stringent as provided under Hindu Marriage Act, 1955. The marriage under Hindu
Marriage Act, 1955 is not considered as a Contract but a sacred and sacrosanct
act.
41.
A decree of divorce passed by American
Court on a ground not available under the Hindu Marriage Act, parties being
Hindus, marriage was solemnized according to Hindu rites, the wife did not
submit to the jurisdiction of Foreign Court, is neither recognizable nor
enforceable in India[10].
42.
The Supreme Court of India in Y.
Narasimha Rao vs Y. Venkata Lakshmi[11] The
second part of clause (c) of Section 13 states that where the
judgment is founded on a refusal to recognize the
law of this country in cases in which such law is
applicable, the judgment will not be recognised
by the courts in this country. The marriages which take place in this country
can only be under either the customary or the statutory law in force in this
country. Hence, the only law that can be applicable to the matrimonial disputes
is the one under which the parties are married, and no other law. When,
therefore, a foreign judgment is founded on a jurisdiction or on the ground not
recognized by such law, it is a judgment which is in defiance of the Law.
Hence, it is not conclusive of the matters adjudicated therein and therefore,
unenforceable in this country.
43.
In Smt. Satya vs Teja Singh [12] the
Supreme Court of India had held that:
“ The answer to the question as
regards the recognition to be accorded to the Nevada decree must depend
principally on the rules of our
Private International Law. It is a well- recognized principle that
“Private international law is not the same in all countries[13]“. There
is no system of private international law which can claim universal recognition
and that explains why Cheshire, for example, says that his book is concerned
solely with that system ‘which obtains in England, that is to say,
with the rules that guide an English court whenever it
is seized of a case that contains some foreign element. The same emphasis can
be seen in the works of other celebrated writers like Graveson, Dicey &
Morris, and Martin Wolff. Speaking of the “English conflict of
laws” Graveson says : “Almost every country in the modern world has
not only its own system of municipal law differing materially
from those of its neighbours, but also its
own system of
conflict of, laws,. . . .”
According to Dicey & Morris.
“The conflict of. laws exists because there are different systems of
domestic law. But systems of the conflict of laws also differ[14]“.
Martin Wolf advocates the same point of view thus :
“Today undoubtedly Private
International Law is National law. There exists an English private
international law as distinct from a French, a German, an Italian private
international law. The rules on the conflict of laws in the
various countries differ nearly as much from each other
as do those on internal (municipal) law[15]“. It is thus a truism to say that
whether it is a problem of municipal law or of Conflict of decided in
accordance with Indian law. it is another matter that the
Indian conflict of laws may
require that the law of a foreign country ought to be
applied in a given situation for deciding a case which contains a foreign
element. Such a recognition is accorded not as an act of courtesy but on
considerations of justice. (4) It is implicit in
that process, that the foreign law must not offend against our public policy.
44.
We cannot therefore adopt mechanically
the rules of Private International Law evolved by other
countries. These principles vary greatly and are moulded by the
distinctive social, political and economic conditions obtaining in these
countries. Questions relating to the personal status of a party
depend in England and North America upon the law of this domicil, but in
France, Italy, Spain and most of the other European countries upon the law of
his nationality. Principles governing matters within the divorce jurisdiction
are so conflicting in the different countries that not unoften a man and a
woman are husband and wife in one jurisdiction but treated as divorced in
another jurisdiction.
45.
A foreign decree of divorce is subject
to collateral attack for fraud or for want of jurisdiction either of the,
subject matter or of the parties provided that the attacking party is not
estopped from doing so[16]. A
foreign decree of divorce, obtained by fraud is void. Fraudulent
simulation of domicile is impermissible. A spouse who goes to a State or
country other than that of the matrimonial domicile for the sole purpose of
obtaining a divorce perpetrates a found, and the judgment is not binding on the
courts of other States[17]”.
Violation of Natural Justice 46.
The foreign judgment may also be
challenged if the proceedings in which it was obtained are opposed to natural
justice. The expression “natural justice” relates to alleged irregularities in
procedure adopted by an adjudicating court and has nothing to do with the
merits of the case. It is the essence of a judgment of a court that it be
composed of impartial persons, who act fairly, without bias or prejudice and in
good faith.
47.
The Supreme Court of India in Y.
Narasimha Rao vs Y. Venkata Lakshmi[18] has
held that:
“Clause (d) of Section 13 which makes
a foreign judgment unenforceable on the ground that the proceedings in which it
is obtained are opposed to natural justice, states no more than an
elementary principle on which any civilised system of justice rests.
However, in matters concerning the family law such as the matrimonial disputes,
this principle has to be extended to mean something more than mere compliance
with the technical rules of procedure. If the rule of audi
alteram partem has any meaning with
reference to the proceedings in a foreign court, for the purposes of the
rule it should not be deemed sufficient that the respondent has
been duly served with the process of the court. It is
necessary to ascertain whether the respondent was in a position to present or
represent himself/herself and contest effectively the said proceedings.
This requirement should apply equally to the appellate proceedings if and when
they are file by either party. If the foreign court has not
ascertained and ensured such effective contest by
requiring the petitioner to make all necessary provisions for
the respondent to defend including the costs of travel, residence and
litigation where necessary, it should be held that the proceedings
are in breach of the principles of natural justice. It is for this
reason that we find that the rules of Private International Law of some countries
insist, even in commercial matters, that the action should be filed in the
forum where the defendant is either domiciled or is habitually resident. It is
only in special cases which is called special jurisdiction where the claim has
some real link with other forum that a judgment of such forum is
recognised. This jurisdiction principle is also recognized by the Judgments
Convention of this European Community. If, therefore, the courts in this
country also insist as a matter of rule that foreign matrimonial
judgment will be recognised only it is of the forum where the respondent
is domiciled or habitually and permanently resides, the
provisions of clause (d) may be held to have been satisfied”.
Fraud48.
No judgment of a court may be allowed
to stand, if it has been obtained by fraud. A judgment obtained by fraud is
“non-est” in the eyes of law and is thus a nullity. It therefore can be
challenged in any court in appeal, in revision or even in collateral
proceedings. A fraud may be by the party obtaining a judgment in his favour or
upon the court pronouncing the judgment. Thus the foreign judgment obtained by
fraud will not operate as res-judicata.
49.
It has been held in S.P Chengalvaraya
Naidu vs. Jagannath (dead)[19]:
“Fraud avoids all
judicial acts, ecclesiastical or temporal” observed Chief Justice
Edward Coke of England about three centuries ago. It is the settled proposition
of law that a judgment or decree obtained by playing fraud on the court is a
nullity and non est in the eyes of law. Such a judgment/decree by the first
court or by the highest court has to be treated as a nullity by every court,
whether superior or inferior. It can be challenged in any court even in
collateral proceedings.
50.
A litigant, who approaches the court,
is bound to produce all the documents executed by him which are relevant to the
litigation. If he withholds a vital document in order to gain advantage on the
other side then he would be guilty of playing fraud on the court as well as on
the opposite party”.
Judgment contrary to Indian
Legislation 51.
A judgment delivered by a foreign
court contrary to Indian legislation would not be conclusive i.e. to say that
if a foreign judgment is in breach of Indian Law, it cannot be enforced in
India. Any judgment which comes before an Indian court must be in conformity
with the law in force in India and must not offend Indian Laws or the public
policy.
Execution
of decrees passed by Courts in reciprocating territory52.
A decree or judgment passed by a
Foreign Court cannot be executed in India in absence of a reciprocal
arrangement.
53.
Some countries that have been declared
and notified by India as reciprocating territories and superior courts include
the Federation of Malaya (now Malaysia) and the High Court and the Courts of
Appeal; Colony of Aden and Supreme Court of Aden; New Zealand and Cook Islands,
Trust Territory of Western Samoa and the Supreme Court of New Zealand; Burma,
all civil and revenue courts; United Kingdom of Great Britain and Northern
Ireland and the House of Lords, Court of Appeals, High Court of England, the
Court of Sessions in Scotland, the High court in Northern Ireland, the Court of
Chancery of the County Panlatine or Lancaster or Durham; Colony of Fiji and the
Supreme Court of Fiji; Republic of Singapore; Trinidad and Tobago; Papua New
Guinea and Supreme Court; Bangladesh and Supreme Court and courts of district
and subordinate judges; Canada and the Supreme Court of Ontario. Therefore,
apart from the countries and courts listed above, decrees passed by any other
court would not be enforceable in India. For other countries, a foreign decree
may be executed in India by filing a suit on the basis of the said decree
praying inter-alia, for the execution of the decree passed by the foreign
court.
Conclusion54.
The foreign judgment/ decree which can
be executed could only be for payment of a sum of money and cannot be for an
immovable property. The claim of money which is passed in a foreign currency
could provisionally be claimed in Indian rupees converted at the rate
prevailing on the institution of the proceedings.
55.
From the above discussion it is
manifestly clear that a foreign judgment and decree in India can only be
executed if the same is passed by the courts of reciprocating territory and
should pass the seven tests as laid down in Section 13 of the Code of Civil
Procedure, 1908.
From
the facts and circumstance narrated hereinabove it can be said that the Execution
of a Decree in India is a very difficult task.
Cost of the legal opinion
Thanking you
Yours faithfully
[----------------------------]
ADVOCATE
[1] Halsbury’s Laws of India, Vol 7, p 65.0001[2] AIR 1962
SC 1737
[3] I.L.R. 63
Calcutta 1033
[4] AIR 1928
P.C. 83
[5] Conflict
of Laws, 6th Edition., p 351
[6] Sir John
Woodroffe & Ameer Ali’s Commentary of Code of Civil Procedure, 1908; 4th
Edition, Vol I; p 365
[7] AIR 1946
Mad 448
[8] AIR 1958
Ker 205
[9] 2001
AIR(SC) 2134: 2001(3) SCR 166: 2001(5) SCC 265
[10] AIR 2003
Delhi 175
[11] (1991) 3
SCC 451
[12] (1975) 1
SCC 120
[13] The
Conflict of Laws, R.B.Graveson, 6th Ed., (1969) pp 3,5,6
[14] The
Conflict of Laws, Dicey & Morris, 8th Ed., (1967) p.10
[15] Private
International Law, Martin Wolf, 2nd Ed., (1950) p.11
[16] Cohen vs
Randall, 88Led., 480
[17] Corpus
Juris Secundum, Vol. 27-B, para 361 p.847
[18] (1991) 3
SCC 451
[19] (1994) 1
SCC 1
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