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Section 44A of the Code of Civil Procedure, 1908 (CPC) was enacted in 1973 by the first Indian Legislature established under the Government of India Act, 1935. It was enacted so that decrees from superior courts in the UK and reciprocating Commonwealth territories could be executed in India as if they were passed by an Indian district court.

Legislative intent was (1) expediting procedure (avoiding the burden of filing a civil suit) and (2) cheapening the cost.

Reciprocity, comity guide India courts

In December 1952, 含羞草社区 first Lok Sabha not only retained this provision but expanded its scope to reciprocating territories beyond the Commonwealth.

As commerce assumes an increasingly transnational character, legal disputes follow. This is increasingly true not just for Indian citizens and businesses, but for India as a sovereign litigant: whether confronting a high-profile extradition resisted on purported apprehensions of poor conditions in Indian courts and prisons or attempts abroad to resist execution of awards that India contends are tainted by fraud.

But Indian courts, standing at the forefront of legal diplomacy, cannot act as foot soldiers marching to statute. They must be guided by reciprocity and comity.

Bombay High Court foreign decree execution

Recently, the Bombay High Court in Elis Jane Quinlan v Naveen Kumar Seth held that a Pune District Court was correct in framing issues in execution proceedings involving a foreign decree from a reciprocating territory.

The petitioner held a foreign decree from Fujairah Civil Court in the UAE and sought execution before the district court, which allowed a judgment debtor’s application seeking to frame issues and lead evidence, finding “exceptional circumstances”.

But the high court dismissed the challenge, endorsing the district court’s view that an ex-parte foreign decree obtained by service only on a UAE address (allegedly suppressing emails and knowledge of resignation and an Indian address) meets the threshold of “exceptional circumstances” (specifically on merits, natural justice and fraud).

The high court articulated a “twin-inquiry” approach to framing issues during foreign decree execution proceedings. The first, under section 47 of the CPC, was into questions of execution, discharge and satisfaction as is applicable to domestic decrees. The second was into the existence of circumstances under section 13 of the CPC – namely questions of jurisdiction, merits and an incorrect view of international law or refusal to recognise the law of India, natural justice, fraud or breach of Indian law.

Comity reciprocity limits executing court

The district court and high court blessed contest in execution without even considering whether the appropriate remedy against the decree was availed – i.e., an appeal in the UAE.

Holding that civil procedure and service rules in the UAE may not be in accordance with something as fundamental as natural justice does violence to the comity underpinning reciprocity. This approach also militates against the presumption of regularity of official acts (in this case, of valid service) under section 119 Illustration (e) of the Bharatiya Sakshya Adhiniyam, 2023.

Once India notifies a foreign state as a reciprocating territory, Indian courts ought not to sit in judgment over the adequacy of that state’s laws of personal service. This is analogous to the Ministry of Home Affairs (IS-II) Guidelines on Mutual Legal Assistance in Criminal Matters, under which even the service of summonses from Indian courts must be under the laws of the foreign state.

Foreign decree execution floodgates open

Comity aside, the high court provides scant guidance for executing courts. Indian courts addressing issues of limited jurisdiction must ensure that exceptions do not swallow the rule. India already holds the dubious distinction of being a jurisdiction where, until recently, stamp duty (of all things!) was a major hurdle to enforcing arbitration awards. Today, mercifully, it is only a minor hurdle.

Deadbeat debtors can and will raise all grounds available to resist paying up. Section 13 of the CPC is no exception. The uncanalised discretion left to executing courts will likely result in the high court’s decision opening a floodgate where a sluice was intended, leaving it to other courts to stop the flow.

For now, executing foreign decrees in India continue to resemble a bootless errand.

Ambar Bhushan is a partner and Aaryan Goyal is an associate at Bharucha & Partners