Section 2(6) and Section 13 of CPC, 1908

Code of Civil Procedure, 1908 - Section 2(6)

• A foreign judgment is defined as the judgment of a foreign court.
• This definition refers to the decree or order of the foreign court itself, not the reasons or statements behind the adjudication.

Status of Foreign Judgment

• According to private international law, a foreign judgment creates an obligation that the holder can enforce against the judgment debtor.
• International law recognizes foreign judgments based on reciprocity and the principles of comity.
• Foreign judgments are enforced through international usage and customs, giving rise to rights and obligations.

Ingredients for the Application of Section 13

• The matter must be directly adjudicated, meaning it specifically concerns the relief granted or refused, not every issue raised.
• The judgment must be between the same parties or parties claiming under them.
• The judgment must involve the same title as per Section 11.

Exceptions / Conditions: (Inconclusive Foreign Judgment)

• A judgment from a court lacking jurisdiction is considered invalid.
• Competence is determined by international law, not the municipal law of the country where the foreign court is located.
• International law determines competence based on the territorial competence of the foreign court over the defendant or the subject matter.

Factors Determining Court Competence

• The defendant is a citizen of that state.
• The defendant is a resident of that state.
• The defendant sued as a plaintiff in that country before.
• The defendant contracted to submit to the jurisdiction of that forum.
• The defendant voluntarily appeared before that forum.
• Property is located within the territory of the state to which the foreign court belongs.
• Pakistani courts do not determine the jurisdiction of a foreign court based on their municipal law.
• Pakistani courts must examine principles of public and private international law to determine if the foreign court had jurisdiction.

Judgment Not on Merits

• The test to determine if a judgement is on merit is whether the judgment was given as a penalty for non-appearance or based on the genuineness of the claim.
• An ex-parte determination, if based on merits, qualifies as a decision given on merits.

Case Law Example

• A foreign court granted sole custody to the father, then the mother took the children to Pakistan.
• The father then filed a Petition for Habeas Corpus.
• The court decided that the foreign court's judgment was not on merit because it was passed in the absence of the mother, and there was a pending appeal - therefore, the judgement could not be executed in Pakistan.

Judgment Against International Law or Recognition of Pakistani Law

• Parties' rights and liabilities are governed under the following principles of International Law:
  • "Lex Loci Contractus" (law of the place where the contract was made).
  • "Lex Loci Solutionis" (law of the place where the contract is to be performed).
  • "Lex Situs" (law of the place where the property is situated).
  • "Lex Domicilii" (law of the country of domicile).
• A foreign judgment that contravenes these laws is unenforceable in Pakistan.
• The expressed intention of the parties determines the proper law of the contract and overrides every presumption.

Judgment Opposed to Principles of Natural Justice

• "Audi Alteram Partem" (no one can be condemned unheard).
• The defendant must have been duly represented in court.
• A foreign judgment given in absentia requires scrutiny based on the rules of natural justice as applied in Pakistan.