Marine Geotechniques v. Coastal Marine Construction & Engineering Ltd.

Section 44A lets a decree-holder execute a foreign money decree directly, but only from a notified reciprocating territory. This case answers the question that then arises and that practitioners meet far more often: what do you do when the territory is not reciprocating?

Enforcement in India was sought of a decree from a territory that was not a reciprocating territory.

The decree-holder must file, in a domestic Indian court of competent jurisdiction, a suit on that foreign decree, or on the original underlying cause of action, or both. He cannot simply execute the foreign decree; he can only execute the resulting domestic decree. To obtain that decree he must show that the foreign decree satisfies s. 13. And there is a limitation trap: a suit on a foreign judgment or decree must be filed within three years from the date of the judgment or decree.

Step one — start from territorial sovereignty. A judgment delivered by a court in one country cannot be executed directly in another in the absence of an inter-State agreement. Section 44A is that agreement in statutory form, and it operates only where the Central Government has notified the territory.

Step two — outside the notification, the common law route applies. The creditor sues, and the foreign judgment supplies the cause of action on the doctrine of obligation: a competent court having adjudged a sum due, a legal obligation to pay arises.

Step three — note that non-merger survives here in statutory dress. The creditor may sue on the decree, or on the original cause of action, or both — the very option that Carl Zeiss v. Rayner & Keeler called an illogical survival.

Step four — s. 13 controls either route. Both the execution route and the suit route pass through the six exceptions.

It opens: How is a foreign judgment enforced in India? — and the answer is a two-route diagram.

Route A, s. 44A. File a certified copy in a District Court, with the superior court's certificate of the extent of satisfaction or adjustment, which is conclusive proof of that extent; the decree is then executed as if passed by that District Court. Every limb of its narrowness is examinable: only a money decree; not taxes or charges of a like nature; not a fine or penalty; not an arbitral award even if enforceable as a decree; only from a superior court of a notified territory; and execution must be refused if any s. 13 exception is shown.

Route B, this case. A suit, on the decree or the original cause of action or both, within three years, and execution only of the Indian decree that results.

Add the presumption. Section 14 requires the court to presume, on production of a document purporting to be a certified copy of a foreign judgment, that it was pronounced by a court of competent jurisdiction unless the contrary appears on the record — a presumption displaced by proving want of jurisdiction. And Y. Narasimha Rao ties certified copy in s. 14 to the certification requirement of s. 86 of the Evidence Act, now the corresponding provision of the Bharatiya Sakshya Adhiniyam, 2023.

It does not decide anything about decrees of courts within India, which are executable anywhere in India under ss. 43 to 45 and Art. 261(3) of the Constitution.