INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Tanmay Sharma and Bhanu Jindal, AZB & Partners
the conditions outlined in Sections 13 and 44A of the CPC. Upon the filing of the application, the Indian court will issue notice to the person against whom execution is sought, directing them to show cause as to why the decree should not be executed. If the person against whom the decree is to be enforced 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 holder 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 dis - close 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 enforce - ment proceedings within the limitation period prescribed by the cause country. Additionally, if the decree holder has initiated enforcement pro - ceedings within the prescribed limitation period in the cause country but the judgment is not fully satisfied, the right to apply under Section 44A will arise only after the execution proceed - ings 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, a judgment issued by a court in a non-reciprocating territory does not provide the successful plaintiff with the right to directly seek its enforcement 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 territo - rial 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 and has been guaranteed as a fundamental right by Article 20(3) of the Constitution of India. This fundamental right is echoed in various other statutes, including the BNSS and the BSA. The protection applies to all forms of testimonial evidence, extending both to oral testimony and to the production of docu - ments. It is important to note that this constitu - tional protection is not only available at the pre - trial stage but also during the trial, and a witness may refrain from giving evidence that may result in self-incrimination. In such cases, since the burden of proof is on the investigation agencies and the prosecution, negative inference cannot be drawn from exercising this fundamental right. This right may be diluted in certain special stat - utes where the burden of proof is on an accused to prove that punitive actions should not be exer - cised against them. For example, the Supreme Court of India recently held that protection of the right against self-incrimination guaranteed under Article 20(3) is not available to a person whose statement is recorded under the PMLA, since the nature of proceedings conducted by the ED
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