The enforcement of foreign judgment has also recognized by law but the requirement for such enforcement is a reciprocating agreement between states. Thus, this article will discuss in brief those enforcement requirements of a foreign judgment.
In the Code of Civil Procedure, 1908, the foreign judgment enforceability has been recognized. Before the enforceability of foreign judgment, a reciprocating agreement with that state is required. Reciprocal agreement or “reciprocity” means an agreement between two or more states for coordinate or mutual enforcement or administration of laws or any judgment. Thus, with many states, Bangladesh has this agreement. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under which they or any of them claim litigation under the same title, except where it has not been pronounced by a court of competent jurisdiction.
The Code of Civil Procedure, 1908 has provided some exceptions when the judgment shall not applicable or nor conclusive proof under section 13, which states that-
- If it has not been pronounced by a Court of competent jurisdiction, or
- If it has not been given on the merits of the case, or
- If it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of Bangladesh in cases in which such law is applicable, or
- If the proceedings in which the judgment was obtained are opposed to natural justice, or
- It has been obtained by fraud, or
- If it sustains a claim founded on a breach of any law in force in Bangladesh.
It is to be noted that some other requirements have to be followed by the party for enforcing the foreign judgment.
Firstly, the party has to file a suit as per the subject matter in the District Judge Court for the execution of the foreign judgment. It is to be mentioned that the time limitation for such application of the execution of foreign judgment is six years from the pronouncement of judgment as per Article 117 of the Schedule to the Limitation Act, 1908.
Secondly, the party has to submit a certified copy of the judgment in support of an application for recognition and enforcement of a foreign judgment. In terns of court fees that will depend on the value of the suit and the subject matter of the suit.
Then the court will see if the judgment falls into any requirements of section 13 of the Code of Civil Procedure, 1908 if not then the court will proceed with the execution.
In terms of the foreign judgment is final or not, if we see section 2(6) of the Code of Civil Procedure, 1908 “foreign judgment” means the judgment of a foreign Court and section 14 states that it will presume that such foreign judgment was pronounced by a Court of competent jurisdiction. Hence it can be saying that as the judgment pass by a competent court, the foreign judgment is conclusive or final in Bangladesh also as the judgment pass on its merit by the foreign court.
Now some questions may arise about the enforcement procedure of such foreign judgment. It is to mention that the process is same as continuance of a suit in the court but with some exception. For example, a party may apply for injunction but on the execution of the judgment. Also, defendant can apply for revision but cannot do appeal.
The next question may arise that the judgment is binding to the parties or not. The Code of Civil Procedure, 1908, Section 2(9) states that “judgment” means the statement given by the Judge of the grounds of a decree or order, on the other hand, Section 2(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Thus, the judgment pass by a court is binding upon the parties, as under section 13 the foreign judgment is recognized, hence the foreign judgment if executed binding upon the parties.
Lastly from the above discussion, it can be said that the judgment by the foreign court is recognized by the Bangladeshi court as under the law but that must fall within the reciprocating states or territory. It is to be mentioned that if the judgment has been previously decided by Bangladeshi court then the foreign judgment will fall into Res Judicata under section 11 of the Code of Civil procedure. However, if the defendant/respondent can establish that service of process had not been in accordance with the applicable law, the court may refuse to enforce the judgment on the ground of breach of natural justice.
The foreign judgment will be executed same as the judgment pass by national court, as under section 51 of the Code of Civil Procedure, 1908-
On application by a decree holder the court will-
- by delivery of any property specifically decreed,
- by attachment and sale or by sale without attachment of any property,
- by arrest and detention in prison,
- by appointing a receiver, or,
- in such other manner as the nature of the relief granted may require.
Thus, a foreign judgment executed in Bangladesh. Nowadays in terms of international trade the law is trying to be uniform by the UNCITRAL model law because of the conflict of laws or complexities in the enforcement of the judgment. The model is design to assist the states in reforming the arbitral procedure and the needs of international commercial arbitration.