INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Bhanu Jindal and Jitesh Lakra, AZB & Partners
in accused persons being prevented from travelling out of India. 5.2 Enforcement of Foreign Judgments Under Section 44A, a “reciprocating territory” refers to any country or territory outside India that has been declared by the central government as such, and “superior courts” refers to those courts specified in the relevant notification. India has designated 13 reciprocating territories under Section 44A – namely, the United Kingdom, Singapore, Bangladesh, Malay - sia, Trinidad and Tobago, New Zealand, the Cook Islands (including Niue), Western Samoa, Hong Kong, Papua New Guinea, Fiji, Aden and, more recently, the United Arab Emirates. A foreign judgment rendered by a superior court in a reciprocating territory may be enforced in India by filing an execution application before a competent Indian court, accompanied with a certified copy of the decree and a certificate from the relevant supe - rior court of the foreign jurisdiction, indicating any amounts that have been satisfied under the decree. It is important to note that a foreign judgment is not subject to a review on the merits; rather, it must only satisfy the conditions outlined in Sections 13 and 44A of the CPC. Upon the filing of the application, the court issues notice to the judgment debtor directing them to show cause as to why the decree should not be executed. If the judgment debtor fails to appear or provide an adequate explanation, the court will recognise and enforce the foreign decree as though it were an Indian judgment. The court will then permit the decree hold - er to execute the judgment against the assets of the judgment debtor. The decree holder may also apply to the court for directions requiring the judgment debtor to disclose any assets. If such assets are disclosed, the court will proceed with the attachment and sale of those assets. The limitation period for enforcing a foreign judgment is governed by the limitation period of the “cause country” – the reciprocating territory from which the judgment originates. Therefore, the decree holder loses the right to enforce the judgment in India if they fail to initiate enforcement proceedings within the limi -
tation period prescribed by the cause country. Addi - tionally, if the decree holder has initiated enforcement proceedings within the prescribed limitation period in the cause country but the judgment is not fully satis - fied, the right to apply under Section 44A will arise only after the execution proceedings in the cause country are concluded. The application may be filed within three years of the finalisation of the execution proceedings in the cause country. In contrast, judgments from non-reciprocating territo - ries cannot be directly enforced in India. Instead, the plaintiff must file a fresh suit in India. This suit may be filed in the court of first instance that has territorial and pecuniary jurisdiction to pass a decree based on the foreign judgment. Such an action is treated as any other suit filed before an Indian court, where the parties have the right to present evidence and make arguments on the merits of the case. The limitation for filing such a suit under the Limitation Act is three years. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination Criminal Proceedings A right against self-incrimination is innate in Indian jurisprudence; it has been guaranteed as a fundamen - tal right by Article 20 (3) of the Constitution of India, and is reflected in various other statutes, including the BNSS and the BSA. This protection applies to all forms of testimonial evidence, including oral testi - mony and production of documents, and is available both at the pretrial stage and during the trial. A wit - ness may refrain from giving evidence that may result in self-incrimination, and, since the burden of proof is on the investigation agencies and the prosecution, adverse inference cannot be drawn from exercising this fundamental right. However, certain special statutes apply where the burden of proof is on an accused to prove that puni - tive actions should not be exercised against them. For example, the Supreme Court recently held that protection of the right against self-incrimination guar - anteed under Article 20 (3) is not available to a person
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