Test for validity of judgement by foreign courts

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 899 of 2009()



1. MONICA DANIEL
                      ...  Petitioner

                        Vs

1. DANIAL THOMAS AND OTHERS
                       ...       Respondent

                For Petitioner  :SRI.SIVAN MADATHIL

                For Respondent  :SRI.SUNNY XAVIER, ACGSC

The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice KURIAN JOSEPH

 Dated :15/04/2009

 O R D E R
          S.R.BANNURMATH, C.J. & KURIAN JOSEPH, J.
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                                 W.A.No.899/2009
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                     Dated this the 15th day of April, 2009

                                    JUDGMENT

Kurian Joseph, J.

The orders passed by the Courts in Dubai are open to collateral attack on the grounds mentioned under Section 13 of the Code of Civil Procedure. Placing reliance on the judgment of the Supreme Court in Satya v. Teja Singh, AIR 1975 SC 105 it is contended that the judgments rendered by foreign courts are not binding on Indian courts. There cannot be any doubt or dispute on the well settled principle that the foreign judgment is conclusive as to any W.A.No.899/2009 matter directly adjudicated upon between the parties only subject to the five norms set out under Section 13 of the CPC. There has to be an enquiry whether the judgment attracts any of the exceptions enumerated in the clauses on the following aspects, apart of course from the acid test as to whether the judgment is between the same parties or between parties under whom they or any of them claim litigating under the same title: (i) that the judgment has been pronounced by a Court of competent jurisdiction, (ii) that it is rendered on the merits of the case, (iii) that it does not appear on the face of proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases where it is applicable, (iv) that the proceedings in which it was obtained are not opposed to natural justice, (v) that it has not been obtained by fraud, or (vi) that it does not sustain a claim founded on a breach of any law in force in India. Except for the above six situations a foreign judgment is to be taken as conclusive. Thus the adjudication has to be done before the Family Court and not under Art. 226 of the Constitution of India. In fact that is what is held by the Division Bench of this court in Ext.P9 judgment. Thereafter the petitioner should not have ventured to file another writ petition, ultimately for the very same reliefs. However, we find that one observation in the judgment of the learned single Judge W.A.No.899/2009 would perhaps stand in the way of the petitioner pursuing the remedy before the Family Court. That observation reads as follows:-

"I am not going into the merits of the matter because of the reason that the various decrees passed by the foreign courts have become final".

That part of the judgment is liable to be set aside since the learned single Judge is not justified in making any such observation when the petitioner was relegated to pursue the remedy before the proper forum.

The observation in the judgment under appeal to the effect that the foreign judgments have become final is hence deleted.