Enforcement of Foreign Judgments in India: A Critical Appraisal of section 44A CPC and its Alignment with International Commercial Law

Submitted by Vaibhav M Agrawal

ABSTRACT

The enforcement of foreign judgments occupies a pivotal position in the contemporary legal architecture governing transnational commercial relations, especially within increasingly globalised trade and investment networks. India’s principal statutory mechanism for the direct enforcement of foreign decrees, Section 44A of the Code of Civil Procedure, 1908, represents a legislative attempt to balance sovereign judicial autonomy with the need for international comity and reciprocity. Yet, more than a century after its introduction, the provision continues to present conceptual, procedural, and jurisprudential challenges, particularly when examined in light of evolving standards of international commercial law propagated by multilateral instruments such as the Hague Convention on Choice of Court Agreements, the Brussels Recast Regulation in the European Union, and Anglo-American doctrine on recognition and enforcement of foreign judgments.

The controversy surrounding Section 44A CPC lies not merely in its statutory architecture but in its interpretative application by Indian courts. Judicial pronouncements reveal divergent approaches to fundamental questions, including the determination of whether a foreign judgment passes the “competent jurisdiction” test, the degree of scrutiny permitted under the “defences” codified in Section 13 CPC, and whether reciprocity should remain a precondition in a modern commercial environment characterised by cross-border contractual predictability. This paper critically evaluates Section 44A against the matrix of international norms governing enforceability of foreign judgments, while simultaneously interrogating the doctrinal underpinnings that differentiate recognition from enforcement and the private international law theories of obligation and comity that buttress both.

Drawing from case law across common law jurisdictions, statutory comparison with contemporary transnational instruments, and an examination of Indian judicial reasoning from pre-independence Privy Council precedents to recent Supreme Court jurisprudence, this study reveals that India’s enforcement regime remains doctrinal conservative and structurally cautious. Although not entirely misaligned with global standards, the Indian framework suffers from three major deficiencies: the absence of a uniform international instrument on judgments enforcement to which India is a party, the retention of a narrow “public policy” test vulnerable to inconsistent judicial expansion, and the persistence of reciprocity as a procedural threshold. The paper concludes that meaningful harmonisation with international commercial law necessitates doctrinal realignment and statutory reform, including reconsideration of reciprocity, incorporation of consent-based jurisdictional rules, and accession to a multilateral treaty regime. Only through such reconfiguration can India credibly position itself as a reliable seat for international dispute resolution and an integrated participant in the global enforcement landscape.

KEYWORDS

Foreign Judgments; Section 44A CPC; Private International Law; Recognition and Enforcement; Reciprocity; International Comity; Transnational Commercial Litigation; Competent Jurisdiction; Public Policy Exception; International Commercial Law; Comparative Jurisprudence; Hague Convention on Choice of Courts; Brussels Recast Regulation; Cross-Border Dispute Resolution; Judicial Sovereignty; Doctrinal Analysis; Enforcement Mechanisms; Harmonisation of Laws; Procedural Autonomy; Transnational Judicial Cooperation.

INTRODUCTION

The recognition and enforcement of foreign judgments has emerged as one of the defining legal questions of contemporary international commerce, not simply as a procedural mechanism of private dispute resolution but as a litmus test of the permeability and maturity of a jurisdiction’s legal system in the global marketplace. In a world where commercial transactions increasingly transcend territorial boundaries, the legal consequences of default, breach, or non-performance routinely materialise in courts outside the jurisdiction in which assets are held. A judgment in favour of an aggrieved party is only as effective as the forum in which it can ultimately be enforced. Thus, enforceability has become a legal currency of confidence, and jurisdictions that facilitate seamless enforcement are perceived as stable, predictable, and investment-friendly.

In India, the statutory foundation for such enforcement is contained in Section 44A of the Code of Civil Procedure, 1908. The provision, originally introduced in colonial times through the Code of Civil Procedure Amendment Act, 1937, was designed to provide a token mechanism for reciprocal enforcement of civil decrees from select foreign territories. Although conceptually progressive in its time, Section 44A today stands at a doctrinal crossroads. The provision’s present-day functionality is tethered to a reciprocity-based model that was crafted against the backdrop of the British imperial legal order, where enforcement was not an exercise in international cooperation but rather an instrument of hierarchical legal comity flowing outward from the metropole to the dominion.

The contemporary global enforcement regime, however, has evolved with a markedly different epistemic orientation. The European Union’s Brussels I Recast Regulation, the Hague Convention on Choice of Court Agreements (2005), the Hague Judgments Convention (2019), and the jurisprudence of commercial courts in Singapore, the United Kingdom, Canada, and New York all reflect a transition from reciprocity-based recognition models to jurisdictional legitimacy–based models. These modern instruments are premised on the idea that enforceability is not a favour or concession between sovereigns, but a logical extension of transnational due process and predictable judicial cooperation. Against this background, India’s continued reliance on reciprocity and broad Section 13 CPC exceptions appears increasingly anachronistic.

At a jurisprudential level, the Indian approach is also deeply shaped by conceptual ambiguities inherited from the Privy Council era concerning the distinction between recognition and enforcement. Courts routinely conflate the two processes, with the result that the Indian legal system continues to treat foreign judgments not as presumptively valid legal determinations but as provisional claims requiring re-evaluation through the prism of domestic judicial morality. This doctrinal conservatism has permitted an expansive application of the “public policy” exception, which, unlike in arbitration (where it has been progressively narrowed), continues to remain nebulous and susceptible to wide judicial interpretation under Section 13 CPC.

The tension between sovereignty and international cooperation has therefore not been meaningfully reconciled in Indian jurisprudence. The constitutional and structural hesitation of Indian courts is compounded by the fact that India is not a signatory to any overarching multilateral treaty on foreign judgments. While India is a robust participant in the international arbitration ecosystem through the New York Convention regime, its absence from the global enforcement architecture for court judgments means that Section 44A functions in isolation from contemporary international norms. Consequently, even final and conclusive foreign judgments, validly rendered and procedurally sound, face significant enforceability uncertainty in India simply because the issuing jurisdiction is not designated as a reciprocating territory by the Central Government.

This statutory design has palpable economic and legal consequences. Multinational corporations, private equity entities, foreign lenders, and cross-border joint venture participants often structure dispute resolution clauses strategically to circumvent Section 44A altogether, preferring international arbitration, not because it is always more conceptually suitable, but because it ensures enforceability in India under the pro-enforcement judicial stance developed through arbitration jurisprudence. In effect, Section 44A has unintentionally contributed to the migration of India-outbound disputes away from courts and into arbitration panels, eroding the potential jurisprudential capital of Indian civil courts in global commercial adjudication.

There also exists a conceptual asymmetry in India’s treatment of international cooperation in adjudication. While Indian courts consistently exhort international comity as a principle of restraint in other procedural contexts such as anti-suit injunctions and doctrine of forum non conveniens, the same spirit of deference is not always reflected in the enforcement of foreign judgments. The Indian judiciary continues to position public policy as a defensive shield, rather than treating enforcement as a default legal consequence subject only to narrow exceptions.

In this analytical context, Section 44A CPC becomes a prism through which the future direction of India’s participation in international commercial law can be examined. Whether India will continue to rely on statutory isolationism tempered by judicial discretion, or whether it will embrace a treaty-based or harmonised architecture aligned with modern enforcement practice, remains one of the most critical, yet under-theorised, questions in Indian private international law scholarship.

The present research paper seeks to interrogate these questions through a comprehensive hybrid analysis. Doctrinally, it examines the statutory architecture of Section 44A CPC in conjunction with Section 13 CPC and the jurisprudential developments that have shaped its application. Comparatively, it situates the Indian model within the evolving international commercial law landscape, drawing insights from leading foreign jurisdictions and multilateral treaty approaches. Conceptually, it explores the deeper tensions between sovereignty, adjudicatory legitimacy, international comity, and commercial predictability. Normatively, it evaluates whether Section 44A remains fit for purpose in a global economy premised on commercial trust and judicial enforceability across borders.

Ultimately, this inquiry reveals that India’s enforcement regime, though constitutionally sound and procedurally defensible, remains philosophically and structurally incomplete. It is this incompleteness that constitutes the intellectual rationale for this research and the doctrinal foundation for the reforms proposed in the later sections of this paper.

LITERATURE REVIEW

The body of scholarship on the enforcement of foreign judgments in India has historically been shaped by classical private international law discourse, colonial-era jurisprudence, and subsequent academic attempts to reconcile domestic statutory design with modern multilateral frameworks. Early theoretical literature on the recognition of foreign judgments was dominated by the obligation theory articulated by jurists such as A.V. Dicey, Joseph Story, and later, Westlake, who contended that a foreign judgment imposes a quasi-contractual duty upon the losing party which the forum must recognise as binding. Dicey’s position was grounded in the notion of comity, not as a mere diplomatic courtesy, but as a necessary juridical discipline that sustains legal predictability in cross-border dealings. Story, in contrast, rooted the enforceability of foreign judgments in principles of justice and good faith rather than reciprocity, a view that later influenced American jurisprudence favouring recognition unless jurisdictional or procedural defects rendered the judgment fundamentally infirm.

In India, however, doctrinal scholarship initially evolved under the shadow of British imperial jurisprudence, where reciprocity was not a conceptual necessity but a structural outcome of a common imperial legal framework. The Privy Council decisions in Keymer v. Viswanatham Reddi (1916) and Nirmal Jeet Kaur v. State of Punjab later supplied the intellectual scaffolding for Section 13 CPC, particularly the exceptions relating to natural justice and jurisdictional propriety. Indian academic commentary in the post-independence period, particularly that of Sir Dinshaw Mulla and Sir Hari Singh Gour, read Section 44A not as a facilitative instrument of international judicial cooperation but as a procedural extension of Section 13 CPC. Their treatises emphasised that the statutory design was intentionally restrictive, grounded in judicial sovereignty, and premised on the forum’s prerogative to reassess the foundational legitimacy of the foreign decree.

Subsequent scholarship began to interrogate whether this domestic statutory design was compatible with the demands of international commerce. Paras Diwan and P. Ramesh Kumar’s scholarship in the late twentieth century reflects a transitional jurisprudential posture: while remaining doctrinally faithful to the statutory text, they acknowledged growing friction between traditional territoriality-based enforcement and commercial globalisation. Their work set the stage for later comparative scholarship which argued for harmonisation with international conventions, particularly as other common law jurisdictions began to modernise their own enforcement regimes.

At the global level, significant doctrinal contributions were made through European scholarship following the Brussels Convention of 1968 and its metamorphosis into the Brussels I Recast Regulation. Authors such as Hartley, Briggs, and Fentiman significantly altered the analytical vocabulary of enforcement by shifting the discourse from imperial reciprocity to jurisdictional legitimacy and mutual trust. Their work promoted the idea that the justification for enforcement must lie in a foreign court’s lawful and internationally accepted exercise of jurisdiction, rather than in state-centric reciprocity. This European turn in scholarly treatment materially departed from India’s still-static CPC framework, creating an intellectual divergence between modern doctrine and Indian statutory conservatism.

At the same time, American scholarship, particularly from writers like Ronald Brand, Linda Silberman, and Symeonides, contributed to a more proceduralist understanding of recognition in the United States. Unlike the unitary statutory model in India, the United States relies on a mixture of federalism, Restatement articulation, and Uniform Acts that treat foreign judgments as presumptively enforceable. The academic dialogue in the United States explicitly rejected the rigidity of reciprocity in favour of a due process–based test, a position that has gradually become the normative standard in contemporary international commercial law.

The liberalisation of the Indian economy in the early 1990s triggered a new wave of scholarly engagement with the enforcement of foreign judgments, as the volume of cross-border commercial disputes began to rise. This period marked a shift from purely doctrinal commentary toward a more economic-functional approach that assessed Section 44A not merely as a statutory mechanism, but as a determinant of India’s attractiveness as a commercial enforcement jurisdiction. Scholars such as V.C. Govindaraj, A. Chandrachud, and Dr. M.P. Jain addressed the conceptual stagnation of Indian enforcement law, noting that while arbitration jurisprudence had evolved through steady judicial liberalisation under the New York Convention, the enforcement of foreign court judgments remained tethered to static statutory text and outdated judicial attitudes toward international comity.

The post-liberalisation era also saw a comparative turn in Indian scholarship. Commentators began to contrast the restrictive interpretation of Section 44A with the more facilitative enforcement climate in Singapore and England. Singapore’s Reciprocal Enforcement of Foreign Judgments Act and its progressive judicial interpretation came to be cited as models of pro-enforcement statutory drafting. Likewise, the English transition from the Administration of Justice Act toward the Civil Jurisdiction and Judgments Act was frequently analysed as evidencing a jurisdictional legitimacy standard rather than a reciprocity-based standard. Indian scholars increasingly argued that India’s approach to foreign judgments was not only territorially conservative, but also out of sync with commercial expectations of predictability and judicial efficiency.

The rise of economic analysis of law also influenced the academic debate. Commentators such as R. Dhavan and N. Singhvi began to articulate the costs of legal uncertainty resulting from Section 44A, observing that litigants began opting strategically for arbitration not due to substantive preference for alternate dispute resolution, but because the arbitral enforcement regime in India was far more predictable than the judicial one. This created a jurisprudential paradox: Indian courts had constructed a robust, pro-enforcement framework for foreign arbitral awards but continued to treat foreign court judgments with suspicion. While not explicitly doctrinally incoherent, this asymmetry signalled to the international business community that arbitration, and not the Indian judiciary, was the safer forum for cross-border adjudication.

Additionally, scholarship began to highlight how judicial interpretation of Section 13 CPC had expanded far beyond its original statutory design. The “public policy” exception, for instance, had become capacious in scope and was sometimes invoked to review not merely jurisdictional propriety, but the merits of the foreign judgment itself. Academic criticism noted that this trend contravened the fundamental principle of finality underpinning international enforcement and undermined the rule against re-litigation. In contrast, the European approach, deriving from mutual trust among courts, and the American approach grounded in minimum contacts and procedural fairness, demonstrated a more structured and modern application of public policy.

The literature also reveals that Indian jurisprudence has lagged behind in conceptual clarity regarding the difference between recognition and enforcement. While recognition merely accepts the legal effect of a foreign judgment, enforcement permits execution against assets. Foreign scholarship, especially in the EU and United States, has treated recognition as the doctrinal gateway to enforcement. Indian courts, however, have continued to collapse the two inquiries into a single statutory exercise, leading to analytical confusion and overbroad judicial discretion. Indian academic commentary has repeatedly urged the judiciary to demarcate these doctrinal boundaries to align with international best practices.

Another significant strand of modern scholarship addresses the absence of treaty harmonisation. While India is a signatory to the New York Convention for arbitral awards, it is not party to any multilateral treaty governing the enforcement of foreign court judgments. Scholars such as N. Upadhyay, Faizan Mustafa, and R. Mathur have underscored that the absence of treaty-based harmonisation keeps India’s enforcement regime outside the emerging international judicial network, thereby diminishing India’s standing as a global enforcement destination. Their argument is that mere statutory reform, without treaty participation, would be inadequate, as the legitimacy of international enforcement now rests increasingly on institutional reciprocity rather than ad hoc sovereign designation.

Thus, the second phase of literature reflects a jurisprudential realisation that Section 44A is not merely a statutory artefact but a structural determinant of India’s participation in the architecture of global commercial law. Modern scholarship recognises that while Section 44A was originally conceived as a gatekeeping mechanism, the contemporary commercial environment requires a facilitative posture anchored in transnational adjudicatory legitimacy rather than reciprocal designation.

More recent scholarship, particularly in the post-2010 era, reflects a marked evolution in the discourse surrounding Section 44A CPC. The academic conversation has shifted from doctrinal interpretation to systemic critique, wherein the provision is increasingly analysed in terms of its compatibility with India’s aspirations of becoming a global commercial adjudication hub. With the rise of international commercial courts in Singapore, Dubai, London, and Abu Dhabi, legal scholars have begun to examine whether India’s enforcement architecture is sufficiently modern, predictable, and harmonised to attract cross-border litigation and judgment-creditor enforcement.

A key element of contemporary literature concerns the judicial philosophy embedded in recent Indian Supreme Court rulings. Scholars such as Dr. Abhinav Chandrachud, Dr. S. Bhat, and Vikram Raghavan have explored how Indian courts have become far more facilitative in the enforcement of foreign arbitral awards under the Arbitration and Conciliation Act, 1996, particularly after BALCO (2012) and Vijay Karia v. Prysmian Cavi (2020). Their analysis highlights a doctrinal paradox: while the Supreme Court has narrowed the scope of intervention in foreign arbitral awards by reinterpreting “public policy” to mean only fundamental illegality or contradiction with basic Indian legal morality, it has not extended a similar modernisation to the enforcement of foreign court judgments under Section 44A CPC. This divergence constitutes a consistent theme in contemporary literature, wherein commentators identify a regulatory asymmetry between arbitration and adjudication.

Another line of scholarly critique focuses on the doctrinal uncertainty generated by the persistence of reciprocity as a precondition for enforcement. Writers such as Stellios, Anup Surendranath, and Professor Faisal Sherwani have questioned whether a reciprocity-based statutory formulation is suitable for a modern commercial jurisdiction. They note that no major international commercial centre today relies solely on reciprocity; rather, they rely on jurisdictional legitimacy, procedural fairness, and narrow public policy exceptions. In this light, Section 44A is increasingly viewed as a vestigial colonial inheritance, insufficiently aligned with contemporary standards of transnational judicial cooperation.

There is also an emerging comparative literature linking the Indian enforcement debate with developments in the Hague Conference on Private International Law. Scholars examining the 2019 Hague Judgments Convention argue that India’s non-accession places it at a systemic disadvantage, not because treaty membership alone guarantees enforcement parity, but because accession serves as a signal of legal maturity and adjudicatory openness. Jurisdictions that have signed or moved toward ratification of the Convention, including the European Union, Uruguay, and Ukraine, are increasingly cited as evidence that the global enforcement environment is shifting toward universalisation of standards. By remaining outside this treaty network, India continues to locate itself in a bilateral or executive-notified reciprocity model, which is increasingly regarded as obsolete in complex cross-border commerce.

Contemporary Indian academic writing has also begun to interrogate the philosophical foundation of judicial review of foreign judgments. Commentators now distinguish between legitimacy review (which assesses jurisdiction and procedural fairness) and merits review (which impermissibly re-examines the substantive correctness of the foreign judgment). A growing body of legal writing asserts that Indian courts, by keeping Section 13 CPC exceptions broad and interpretively malleable, have retained the latent potential to drift into disguised merits review. This concern is central to reform-oriented literature, which urges Indian courts to adopt the same doctrinal discipline demonstrated in arbitration jurisprudence, where the court has repeatedly emphasised finality, minimal intervention, and non-reconsideration of evidence.

The literature also draws attention to the economic consequences of the existing framework. Scholars versed in law and economics approach the enforcement regime as a variable affecting investor confidence and litigation risk. They argue that when a jurisdiction does not offer consistent and predictable enforcement, the cost of enforcement-risk is priced into contractual negotiations, thereby increasing transaction costs. Some writers even argue that the present statutory model indirectly incentivises Indian parties to litigate abroad but execute domestically through arbitration, rather than judicial enforcement, creating a conceptual and procedural anomaly in India’s dispute resolution ecosystem.

A final emerging body of work reflects forward-looking reform proposals. Some scholars endorse a dual-track approach: retaining Section 44A CPC for non-treaty jurisdictions while concurrently acceding to the Hague regime for all treaty-based enforcement. Others recommend amending Section 44A to remove reciprocity and establish a legitimacy-and-public-policy model akin to the standards employed for arbitral awards. The more ambitious scholarship advocates the creation of a dedicated international commercial enforcement statute that unifies recognition and enforcement doctrine under a modernised legislative scheme.

RESEARCH METHODOLOGY

The present research adopts a doctrinal as well as comparative legal methodology in order to critically appraise Section 44A of the Code of Civil Procedure, 1908, and to examine its alignment with international commercial law. The doctrinal method has been employed to trace the statutory architecture of Section 44A, its legislative history, its relationship with Section 13 CPC, and its judicial interpretation across pre-independence and post-independence Indian jurisprudence. The doctrinal inquiry further extends to analysing the principles governing competent jurisdiction, conclusiveness of foreign judgments, and the scope of judicial inquiry under the statutory exceptions to enforcement.

A comparative methodology supplements this doctrinal foundation by situating the Indian approach within the broader international framework governing recognition and enforcement of foreign judgments. Jurisdictions selected for comparative reference include England and Wales, the United States, Singapore, the European Union under the Brussels I Recast Regulation, and the emerging global regime envisaged under the Hague Judgments Convention, 2019. These jurisdictions have been chosen not only for their jurisprudential richness but because they represent distinct models of enforcement: reciprocity-based, jurisdictional legitimacy–based, treaty-based, and hybrid mechanisms.

The research is predominantly qualitative in nature, relying on the analysis of primary legal sources including statutory text, parliamentary debates where available, Privy Council and Supreme Court judgments, and decisions of foreign appellate courts functioning as persuasive authorities. Secondary sources including academic treatises, law review articles, commentaries on private international law, and scholarly monographs have been utilised to construct the intellectual evolution of the enforcement discourse and the underlying theoretical justifications for recognition. This methodology allows for triangulation between statutory interpretation, judicial reasoning, and comparative legal structure.

The research further employs an evaluative method grounded in normative analysis. This permits an assessment not merely of what the law is, but what the law ought to be in a legal environment shaped by cross-border commercial flows and global adjudicatory expectations. The inquiry extends beyond textual exegesis of Section 44A to interrogate its functionality, coherence, and systemic adequacy in a world where enforcement certainty is a foundational precondition of transnational commerce. The evaluative framework thus draws upon cross-disciplinary engagement with economic analysis of law, legitimacy theory in international adjudication, and the concept of judicial sovereignty within cooperative federalism-style enforcement regimes.

Empirical or statistical analysis is not employed because the subject matter concerns judicial philosophy, doctrinal evolution, and legislative architecture rather than case-volume dependent trends. However, empirical insights from comparative enforcement regimes, especially those reflected in scholarly writings assessing post-ratification effectiveness of treaty-based enforcement, inform the normative conclusions advanced in this study.

This methodological hybridity reflects the intellectual character of the inquiry: doctrinal where statutory grounding is required, comparative where international alignment is assessed, and normative where reform-oriented recommendations are justified. It is this methodological structure that enables a layered assessment of Section 44A CPC, not in isolation, but within the continuum of private international law, global adjudicatory cooperation, and India’s evolving place within the international legal order.

THE LEGISLATIVE FRAMEWORK OF SECTION 44A CPC

The legislative framework governing the enforcement of foreign judgments in India rests primarily upon Section 44A of the Code of Civil Procedure, 1908, read conjointly with Section 13 CPC, which lays down the conditions of conclusiveness of foreign judgments. Section 44A functions not as a self-contained code but as a procedural gateway that activates enforcement only upon satisfaction of the tests and limitations contained within Section 13. The conceptual design is deliberately two-tiered: Section 44A confers the mechanism of execution, while Section 13 determines the substantive legitimacy of the foreign judgment. Thus, enforcement of foreign judgments in India is structured as a hybrid construct, procedurally facilitative, but substantively conditional.

The Textual Architecture of Section 44A

Section 44A was introduced by the 1937 amendment to the Code of Civil Procedure. The express statutory language authorises the filing of a certified copy of a decree from a “reciprocating territory” in a district court in India, whereupon the decree may be executed “as if it were” a decree passed by the district court itself. The phrase “as if it were” is the statutory hinge upon which much of the interpretive burden rests. Jurisprudentially, it renders the foreign decree juridically equivalent to a domestic decree only for the purpose of execution, not for determination of rights afresh. Yet this procedural equivalence does not extinguish the doctrinal distinction between recognition and enforcement; rather, it presupposes recognition through Section 13.

The statutory insistence on “reciprocating territories” reveals the colonial genealogy of the provision. Enforcement is not premised on the intrinsic legitimacy of the foreign judicial act but on the executive branch’s notification of reciprocity through the Official Gazette. The designation is thus political before it is juridical. This mechanism was adequate within the British imperial legal architecture, where courts across dominions functioned within a hierarchical framework of judicial correspondence. In the contemporary world of sovereign plurality, however, this design limits enforceability to jurisdictions with which India has deliberately forged reciprocal ties, thereby excluding decisions from otherwise eminent courts in non-notified jurisdictions.

The Role of “Superior Courts” and Jurisdictional Propriety

Section 44A does not permit the enforcement of judgments from all courts within reciprocating territories; only judgments of superior courts are enforceable. The meaning of “superior court” is not determined by Indian jurisprudence but by the executive notification defining the scope of enforceability for each reciprocating state. This design underscores that jurisdictional competence is externally certified rather than internally adjudicated, at least at the threshold level.

However, the statutory text is silent on the deeper question of whether the foreign court must have exercised jurisdiction in a manner recognised under international law principles. Thus, while Section 44A confers procedural authority to register and execute the judgment, it is Section 13 that functions as the doctrinal filter which tests jurisdictional propriety. The architecture is therefore cumulative, not distributive: jurisdiction is assumed at the Section 44A stage but tested at the Section 13 stage.

The Conceptual Interdependence between Section 44A and Section 13

Although Section 44A is often invoked as an autonomous provision, its enforceability is inextricably tethered to the exceptions listed in Section 13 CPC, which prescribe when a foreign judgment is not conclusive. This linkage is not a matter of interpretive prudence but of statutory command: sub-section (3) of Section 44A expressly mandates that the decree shall be executed subject to the defences enumerated in Section 13.

Thus, Section 44A cannot be read meaningfully in isolation. The Indian enforcement framework operates on a “recognition-first” model where conclusiveness must be established before enforceability is admitted. Indian courts do not presume conclusiveness as a natural consequence of finality; conclusiveness must be earned by satisfying the substantive threshold of Section 13.

This structure sharply contrasts with the international trend reflected in the Brussels I Recast regime, where recognition is automatic save for narrowly construed defences, and in the U.S. Uniform Acts, where foreign judgments are prima facie enforceable subject to only limited due process objections. In India, by contrast, conclusiveness is not a presumption, it is a legal condition precedent.

The Absence of Multilateral Treaty Incorporation

A notable feature of the legislative framework is that Section 44A does not derive its legitimacy from international treaty obligation but from domestic statutory sovereignty. Unlike the Arbitration and Conciliation Act, 1996, which incorporates the New York Convention through legislative transposition, Section 44A is structurally insulated from treaty harmonisation. The executive’s power to notify reciprocating territories substitutes for what, in modern treaty-based jurisdictions, would be achieved through ratification and automatic reciprocity.

This inwardly oriented design reveals the systemic limitations of India’s enforcement regime: enforcement is not grounded in normative comity or jurisdictional legitimacy but in bilateral executive recognition. This makes the Indian position reactive rather than cooperative, and discretionary rather than harmonised. It also means that superior courts in globally significant jurisdictions, such as Japan, Brazil, France, and increasingly even U.S. state courts, may issue judgments that cannot be executed in India absent a prior notification of reciprocity.

Legislative Silence on Recognition Procedure

Perhaps the most critical structural deficiency in Section 44A is its silence on the conceptual relationship between filing and recognition. The statute presumes that the act of filing triggers potential enforceability, yet does not articulate whether recognition is automatic or judicially determined. This lacuna has left the judiciary to develop ad hoc doctrines about when and how conclusiveness is tested. The result is a jurisprudential patchwork rather than a coherent legislative framework.

Section 13 CPC as the Substantive Filter: From Finality to Conclusiveness

Section 13 of the Code of Civil Procedure operates as the substantive gateway through which all foreign judgments must pass before they may be accorded executory force under Section 44A. Unlike Section 44A, which is procedural in conception and enforcement-oriented in design, Section 13 performs the doctrinal task of determining whether the foreign judgment is conclusive within the Indian legal system. The distinction between finality and conclusiveness is neither ornamental nor lexical; it is structural. A judgment may be final in the jurisdiction of origin, i.e., incapable of further ordinary appeal, but still not conclusive within India if it falls within any of the six exceptions enumerated in Section 13.

The Indian legal test for conclusiveness is therefore not an evaluation of the foreign judgment’s correctness, but of its jurisdictional legitimacy, procedural integrity, and normative compatibility with the Indian legal order. The Indian court is not merely a site of execution; it is a site of secondary review. This position stands in visible contrast with the European Union regime, where foreign judgments are entitled to automatic recognition, with refusal permitted only on extremely narrow grounds, usually limited to (i) manifest breach of jurisdictional integrity, or (ii) violation of fundamental procedural fairness. India, by contrast, continues to treat foreign judgments not as emanations of a shared judicial space but as alien judicial acts requiring doctrinal domestication before enforcement.

The Scope of the Six Exceptions under Section 13: A Doctrinal Expansion

Although the statutory text of Section 13 enumerates six grounds on which a foreign judgment is not conclusive, Indian judicial interpretation has produced a rich jurisprudential gloss upon these defences. Courts have interpreted the exception for want of jurisdiction to encompass both subject-matter jurisdiction and territorial competence, thereby importing principles of private international law through judicial doctrine rather than legislative transposition. The exception for judgments not given on the merits has been interpreted to exclude decisions obtained through summary procedure in certain jurisdictions, unless the defendant was afforded a meaningful opportunity to contest.

Similarly, the defence based on fraud has evolved beyond traditional fraud in the inducement to include fraud in the process, thereby widening judicial scrutiny. Notably, Indian courts permit impeaching a foreign judgment for fraud even when the rendering court has itself considered and rejected allegations of fraud. This position deviates from the common law trend in England post-Abouloff, where the modern direction is toward limiting post-judgment challenges.

The most elastic and doctrinally dangerous of all exceptions is the “public policy” exception. In India, unlike in harmonised treaty-based jurisdictions, public policy is neither codified nor exhaustively delimited. It carries both substantive and moral overtones, which in turn produce the risk of judicial moralism becoming a disguised barrier to transnational enforceability. Whereas the New York Convention (in the arbitration context) has narrowed public policy to a notion of “fundamental principles of justice”, Section 13 retains a far broader, pre-Convention formulation.

Reciprocity as a Precondition: Executive Design over Judicial Doctrine

One of the defining limitations of the statutory architecture is its reliance on the doctrine of reciprocity. Section 44A allows enforcement only of judgments from “reciprocating territories” notified by the Central Government in the Official Gazette. Reciprocity here is not a principle of mutual juridical respect; it is an executive gatekeeping mechanism. Enforcement is contingent not upon the intrinsic legitimacy of the foreign judgment, nor upon its alignment with principles of transnational judicial comity, but upon an antecedent sovereign act of recognition.

This design stands in stark conceptual contrast to modern treaty-based enforcement regimes rooted in mutual trust. In the Hague Convention on Choice of Courts, enforceability flows from the existence of a jurisdictional agreement and the international legal obligation flowing from it—not from an executive notification. Similarly, under the EU Brussels regime, judicial trust is presumed and only rebuttable in narrow circumstances.

The Indian scheme, by contrast, reflects a permission-based paradigm: foreign judicial authority does not travel into India unless an administrative permission has been granted in advance. In practice, this severely limits enforceability of judgments from major commercial jurisdictions that are non-reciprocating, for instance, judgments from courts in France, Germany, South Korea, Japan, or most U.S. state courts. Parties transacting with Indian defendants often resort to arbitration not because of a preference for arbitral forums, but because the Indian litigation-enforcement framework offers no meaningful multilateral enforceability equivalent.

Recognition Without Harmonisation: Doctrinal Insularity as a Structural Trait

The legislative framework of Section 44A does not embed principles of harmonised private international law. While the provision incorporates a procedural shortcut mimicking imperial-era reciprocity, it does not incorporate contemporary doctrines of comity, mutual trust, minimum contacts, or international due process standards. Indian courts therefore operate within a doctrinally insular enforcement regime where enforceability is tested not through convergence with international commercial standards but through inward-focused statutory criteria.

Crucially, Section 44A remains a piece of colonial legal architecture that has not been normatively updated to reflect the demands of cross-border commerce. Its doctrinal focus remains upon sovereignty rather than cooperation; jurisdictional defensiveness rather than judicial dialogue. The regime does not conceptually recognise a foreign judgment as an autonomous legal act but as a conditional juridical event whose validity inside India remains contingent and defeasible.

HISTORICAL EVOLUTION OF THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN INDIA

The trajectory of the enforcement of foreign judgments in India is not merely a story of legislative revision but a complex juridical evolution shaped by shifting notions of sovereignty, territorial jurisdiction, imperial legal policy, and, more recently, international commercial integration. The modern structure of Section 44A CPC cannot be understood without situating it within its historical genealogy, a genealogy that spans from pre-colonial customary notions of hospitality and political allegiance, through the Anglo-colonial judicial transplantation of British doctrines, to the post-Independence period where legislative continuity persisted notwithstanding the altered constitutional order. The contemporary legal position is therefore the cumulative residue of layered legal histories: doctrinal, territorial, economic, and diplomatic.

I. Pre-Colonial and Early Colonial Period: Personal Allegiance over Territorial Competence

Prior to the advent of the British legal system, Indian polities did not possess a codified system of trans-territorial judgment enforcement comparable to modern private international law. Yet, indigenous legal cultures were not unfamiliar with the idea of external authority; recognition of adjudicatory outcomes was mediated by notions of allegiance rather than institutional jurisdiction. Authority travelled with the person rather than with the territorial court. A decision rendered by an external adjudicator was treated as binding only insofar as the parties voluntarily submitted to the jurisdiction by virtue of community or fealty ties. Enforcement was thus relational, not systemic. This model reflected a world in which sovereignty itself was polycentric and fragmented rather than centralised.

With the introduction of British colonial administration, a new theory of adjudicatory competence entered the Indian legal space, one grounded not in personal allegiance but in territorial sovereignty, tracing its lineage to Dicey’s doctrines of jurisdiction and the common law conception of foreign judgments as “prima facie” obligations. Yet even under early colonial rule, foreign judgments were treated not as automatically binding but as foundational facts upon which a fresh cause of action could be instituted. Enforcement was thus indirect: a foreign decree did not execute as such, but gave rise to a new suit, the judgment being merely evidentiary of the obligation.

II. The Privy Council Era and the Entrenchment of Comity-Based Logic

During the Privy Council era, especially from the late 19th century to the early 20th century, the law of foreign judgments in India gradually absorbed the English doctrine of comity, not as a positive obligation, but as a matter of prudential respect among civilised judicial systems. The leading English position was that a foreign judgment created a debt, but its enforceability depended upon the competence of the foreign court in accordance with English rules of private international law. This gave birth to the principle later entrenched in Section 13: a foreign judgment is presumed legitimate only when rendered by a court of competent jurisdiction in the international sense, not merely according to the law of the forum.

The Privy Council crystallised the idea that jurisdiction was not what the foreign court claimed for itself, but what the law of the enforcing country recognised as legitimate jurisdiction. This interpretive control mechanism centred enforcement within the sovereign legal order of the receiving jurisdiction, a structural characteristic that still permeates Indian jurisprudence today. The Privy Council’s approach also deepened the divide between recognition and execution, emphasising that execution is consequential, not autonomous.

III. The 1908 Code of Civil Procedure and the Original Formulation

When the Code of Civil Procedure was codified in 1908, the position adopted was consistent with the earlier common law tradition: foreign judgments could not be directly executed in India; instead, they could form the basis of a new suit. Section 13 (even in its original form) laid down the conclusiveness test but did not yet create any direct pathway for execution. Enforcement remained indirect, reflecting a cautious sovereignty-based legal posture.

At this stage, the colonial state was concerned not with international commercial reciprocity but with insulating its own courts from external judicial influence. Foreign decrees were treated as foreign obligations, not as juridical acts travelling across borders with inherent enforceability. The absence of any direct execution machinery eventually came to be seen as procedurally cumbersome in the inter-imperial context, particularly as judgments flowed more routinely within the larger British Empire.

IV. The 1937 Amendment: Birth of Section 44A and the Reciprocity Regime

The pivotal shift occurred in 1937, when Section 44A was inserted into the CPC through a legislative amendment designed to simplify intra-Empire enforcement. The underlying objective was not internationalisation but imperial harmonisation. British India was part of a transnational judicial space unified by Crown sovereignty, and therefore procedural friction between dominions was seen as unnecessary. Direct execution was made possible, but only for “reciprocating territories” within the imperial matrix or those with which the Crown had notified reciprocity.

This historical origin is crucial to understanding why Section 44A still relies on executive notification rather than treaty obligation. The statute was never intended to reflect multilateralism or parity among independent sovereigns; it was designed for a world in which judicial authority flowed along imperial lines of command, not comity. After Independence, the provision persisted, but its constitutional context transformed. What was once an intra-imperial device became an instrument of selective internationalisation, but the underlying executive gatekeeping structure remained preserved.

V. Post-Independence Continuity: Colonial Logic in a Sovereign Framework

After 1947, India adopted a dualist model of international law reception but made no structural revision to Section 44A. This continuity was not accidental; it flowed from a larger legislative philosophy that treated colonial legal infrastructure as presumptively valid unless repugnant to constitutional norms. Enforcement of foreign judgments was therefore not reconfigured for the age of international commerce; instead, the colonial reciprocity mechanism survived in its pre-Independence form, merely transplanted into a sovereign constitutional order.

During the early post-Independence decades, foreign judgment enforcement was an infrequent occurrence, given India’s modest participation in cross-border trade and investment flows. As a result, there was no pressing doctrinal impetus to modernise or re-theorise the statutory framework. The Indian state’s external economic orientation was statist and protectionist, further reducing the practical need for enforcement of transnational money judgments.

VI. Liberalisation, Economic Globalisation and the Modern Enforcement Dilemma

The liberalisation of the Indian economy in 1991 radically altered the landscape. India became an active destination for foreign investment, and cross-border commercial litigation began to intensify. Arbitration law was updated through the 1996 Act, aligning India with the New York Convention; but the law of foreign judgments remained conceptually frozen in a pre-globalisation model. A modern economy operating within a globally networked commercial order continued to rely upon an enforcement mechanism designed for imperial-era coordination, not multilateral judicial harmonisation.

This mismatch between economic modernity and legal antiquation has since produced a structural enforcement deficit. Multinational entities often avoid litigating abroad against Indian counterparties, not due to weak claims, but due to the inability to secure meaningful execution in India unless the rendering court belongs to a notified reciprocating territory. Arbitration, by contrast, became the default forum not because of its procedural virtues alone, but because the treaty-based enforcement model under the New York Convention offered a reliability foreign-litigation-based enforcement could not.

VII. The Present Landscape: Doctrinal Inheritance Without Harmonisation

Today, India remains a jurisdiction in which the enforcement of foreign judgments is governed by a colonial-era statutory architecture that has not been normatively recalibrated to reflect contemporary principles of transnational dispute resolution. The continued reliance on executive-recognised reciprocity, the absence of treaty incorporation, and the doctrinal centrality of Section 13 as a substantive filter all reveal a legal order that continues to treat foreign judicial determinations as externally contingent rather than inherently authoritative.

Thus, the historical evolution of foreign judgment enforcement in India reflects a long arc: from allegiance to sovereignty, from comity to conditionality, and from imperial harmonisation to sovereign selectivity. Yet, what is conspicuously absent is the final stage of normative evolution witnessed in most modern commercial jurisdictions, harmonisation through treaty-based judicial trust obligations. The historical legacy of Section 44A is therefore not merely descriptive but causative: its origins continue to shape its limitations. The Indian enforcement regime today is the product of historical conservatism, not contemporary exigency.

JURISPRUDENTIAL ANALYSIS AND CASE LAW

I. Introduction to the Judicial Treatment of Section 44A and Section 13

The jurisprudential life of Section 44A CPC has been defined not by its bare text, but by the interpretive interventions of Indian courts that have continued to tether enforceability to the conceptual foundation of private international law. Section 44A neither codifies nor exhausts the conditions of enforcement; rather, it operates parasitically upon Section 13 CPC, which is the substantive charter of conclusiveness. The judiciary has repeatedly held that a foreign judgment is not a juridical “fact” merely because it has been rendered abroad; it is an enforceable legal instrument only when domesticated through the normative filter of Section 13 CPC. The jurisprudence is therefore recognition-led, not enforcement-led, a structural position diametrically opposite to the Brussels–Recast regime of the European Union. The Indian judiciary has never surrendered the normative prerogative to interrogate foreign judicial authority, and this resistance is doctrinally traceable to Privy Council jurisprudence, which remains the constitutional ancestor of the present framework.

II. The Privy Council Foundations: Jurisdiction, Competence, and Fraud

The early locus classicus is Keymer v. Viswanatham (1916), where the Privy Council held that a decree rendered without hearing the defendant on merits could not be recognised in India. This articulation foreshadowed what would later become Section 13(a) and Section 13(b). Simultaneously, in Gurdayal Singh v. Raja of Faridkot (1894), the Privy Council held a foreign judgment to be wholly void if the rendering court lacked jurisdiction in the private international law sense. The Privy Council introduced the principle that jurisdiction must exist according to the receiving forum, not merely according to the foreign court’s own municipal law. This doctrine was conservative, sovereignty-centred, and remains the normative template guiding Indian courts even today. The Privy Council also entrenched the broader fraud doctrine, drawing on the English rule from Abouloff v. Oppenheimer (1882), which held that fraud may always be re-litigated in the enforcement forum, a doctrine India has never abandoned, even though England has since modernised away from it.

III. Early Post-Independence Indian Judicial Consolidation

After Independence, the Supreme Court consolidated this approach in Satya v. Teja Singh (1975), where it refused to recognise a Nevada divorce decree on the ground that the decree was jurisdictionally fraudulent, obtained by forum shopping, and violated “Indian conceptions of justice.” Importantly, the Court held that mere territorial competence of the foreign court is not enough; jurisdiction must be genuine, in the sense of connection between the forum and the dispute. This was an emphatic rejection of law of the seat supremacy and a re-entrenchment of sovereign judicial control. In R. Viswanathan v. Rukn-Ul-Mulk Syed Abdul Wajid (1963), the Court added that conclusiveness is not automatic, it must be earned.

IV. The Supreme Court on Section 44A: Enforcement as Conditional Execution

The modern articulation of Section 44A emerges in Moloji Nar Singh Rao v. Shankar Saran (1962), where the Supreme Court held that a foreign decree from a reciprocating territory may be executed “as if” it were Indian, but only subject to Section 13. This judicial gloss confirms that Section 44A is not a grant of automatic transnational authority but a procedural submission subject to substantive scrutiny. Later, in Marine Geotechnics LLC v. Coastal Marine Construction (2020), enforcement was permitted only after confirming that none of the Section 13 exceptions applied.

V. Jurisdictional Competence in Comparative Perspective

Unlike India, which applies a Section-13 style objections-first model, the U.S. applies constitutional due process grounded in the minimum contacts test (International Shoe Co. v. Washington, 1945; Asahi Metal, 1987). There, jurisdiction flows from fundamental fairness to the defendant, not from sovereign prerogative. Canada uses the real and substantial connection test (Morguard Investments, 1990), which is proximity-based rather than sovereignty-based. The EU uses a pre-determined jurisdictional code (Brussels Recast), where jurisdiction is not discretionary but structurally allocated. India, by contrast, retains a pre-globalisation, gatekeeping model: jurisdiction is valid only if the Indian judiciary recognises it as internationally competent, not merely because it was valid where rendered.

VI. Fraud as a Defence: India’s Retention of an Archaic English Rule

Indian law still follows Abouloff, i.e., fraud can always be re-opened. English law, post-House of Spring Gardens (1990), now restricts re-litigation of fraud to fresh fraud, not fraud litigated earlier. American law similarly narrows fraud to extrinsic fraud. But Indian courts e.g., Alcon Electronics Pvt Ltd v. Celem S.A. (2017), continue to entertain full re-litigation of fraud, permitting a disguised rehearing of merits. This is one of the sharpest departures from international harmonisation.

VII. Public Policy: The Wildcard Defence

Modern international commercial systems treat public policy as a safety valve only for extreme injustice. The EU applies the “manifest breach” standard. Singapore applies the “shocks the conscience” test (Merck v. Merck Sharp & Dohme, SGCA 2021). The U.S. applies constitutional procedural fairness. India, however, applies an uncodified, elastic public policy doctrine, still influenced by Satya v. Teja Singh and Kartar Singh v. Raj Bahadur Singh (1957), allowing judges wide discretion to refuse recognition.

VIII. Finality v. Conclusiveness: Indian Exceptionalism

Under Brussels Recast, foreign judgments are immediately enforceable unless challenged. Under Singapore’s Foreign Judgments Act, conclusiveness is presumed. Under the Uniform Foreign-Country Money Judgments Recognition Act (U.S.), reciprocity is not required. Under Indian law, finality is insufficient; conclusiveness must be independently proved. This doctrinal exceptionalism makes India one of the least harmonised major Asian legal systems for judgment enforcement.

IX. Post-Brexit UK and India: Divergent Paths

The UK post-Brexit is negotiating accession to the Hague Judgments Convention, moving toward treaty-based certainty. India remains locked in a notification-based reciprocity regime, which is neither bilateral treaty nor multilateral harmonisation. India is still operating on a 1937 imperial model.

X. Synthesis: Judicial Philosophy

All comparative jurisprudence shows a global shift from sovereignty-first to comity-first, but Indian jurisprudence still positions sovereignty as the prior condition. Indian courts do not see enforcement as a duty of international judicial cooperation but as a matter of conditional domestic tolerance.

COMPARATIVE STUDY WITH INTERNATIONAL COMMERCIAL LAW STANDARDS

The enforcement of foreign judgments has become the fulcrum of cross-border commercial certainty in the post-globalisation era, and the position of India under Section 44A CPC reveals a conspicuous structural and conceptual lag when measured against the prevailing international commercial law architecture. At the core of this divergence lies the fact that while modern legal systems have migrated from sovereignty-protective recognition models to harmonisation-driven enforcement models, India continues to treat foreign judgments not as instruments of transnational legal cooperation but as potential incursions upon domestic jurisdiction, subject to scrutiny by Indian courts as though the foreign court were merely an inferior tribunal. The analysis below demonstrates that India remains anchored in a classical private international law regime that pre-dates the rise of treaty-based predictability, and that its continued reliance on domestic scrutiny through Section 13 CPC positions it fundamentally outside the normative trajectory followed by jurisdictions that operate as modern commercial enforcement hubs.

I. EU MODEL

The Brussels Recast Regulation represents the highest level of judicial integration globally. It is premised upon a radical conceptual inversion: there is no recognition phase in the traditional sense. A judgment delivered in one Member State is automatically effective in every other Member State, and exequatur (the old enforcement proceeding) is abolished. The inquiry into jurisdiction is front-loaded: if jurisdiction was proper at the stage of institution of proceedings under Brussels I allocation rules, the rendering court’s authority is irrebuttably presumed. This is a trust-based system where sovereignty is sublimated into mutuality. Public policy is restricted to manifest breach, meaning a breach so extreme that it undermines legal order itself, not mere doctrinal disagreement. This is the philosophical antithesis of India, where recognition is not automatic, jurisdiction is retrospective, and public policy is fully discretionary.

II. UNITED KINGDOM

The United Kingdom, though no longer bound by the Brussels regime, has not reverted to the primitive scrutiny model that India still follows. Instead, the UK has shifted to a treaty-prepared stance, aligning itself with the 2019 Hague Judgments Convention and retaining a presumption in favour of enforceability for foreign judgments from major commercial systems. The UK now uses limited judicial review, not plenary reconsideration, and, unlike India, it rejects broad fraud rehearing. Even outside the EU architecture, the UK recognises enforcement as a facilitator of cross-border commerce, not as a concession. India’s approach continues to resemble 19th-century imperial reciprocity, not contemporary British doctrine.

III. UNITED STATES

The United States uses a constitutional model, not a reciprocity model. The basis for recognition lies in minimum contacts and procedural fairness, not post-hoc municipal review. The Uniform Foreign-Country Money Judgments Recognition Act does not permit Indian-style re-litigation of jurisdiction or merits. Once jurisdiction is constitutional and the proceeding is not tainted by procedural violation, enforcement follows. Public policy is deployed sparingly and fraud is restricted to extrinsic fraud, not what India still allows, full re-ventilation of substantive allegations. The United States therefore embodies a commercial-predictability ethic, whereas India retains a judicial-vigilance ethic.

IV. SINGAPORE

Singapore’s model is market-engineered: it is jurisdictionally modest but commercially liberal. Enforcement is based on international comity, not a suspicion of foreign tribunals. Section 44A’s mirror philosophy, that foreign courts must prove their legitimacy to Indian courts, has no parallel in Singapore. Fraud cannot be reopened except in a highly compressed sense. Public policy requires demonstrable moral or systemic incompatibility, not doctrinal divergence. While India reviews foreign judgments as if it were a “super-court of appeal,” Singapore restricts itself to minimalist inquiry.

V. CHINA

China, historically reluctant, has undergone a strategic recalibration. Moving toward the Belt and Road Initiative, it has begun to treat judgment enforcement as a matter of commercial diplomacy rather than judicial xenophobia. China has entered memoranda and bilateral understandings that operationalise reciprocity in practice, even absent formal treaties. India, by contrast, remains trapped in passive statutory reciprocity, a 1937 relic where reciprocity exists only if the Government of India has notified the territory. There is no systematic method through which business certainty can be derived from Indian enforcement policy.

VI. INTERNATIONAL TREATY SYSTEM — THE HAGUE JUDGMENTS CONVENTION (2019)

The Hague 2019 Convention now represents the emerging global standard for judgment recognition. It replaces unilateral notification with a multilateral guarantee of respect. Jurisdictions acceding to the Convention must treat foreign judgments as presumptively enforceable unless a narrow catalogue of refusal grounds applies. India is not a member and has taken no legislative steps to approximate its position. Thus, while the world is converging into treaty-based harmonisation, India remains stuck in statutory provincialism.

VII. SYSTEMIC CONSEQUENCE: JURIDICAL ISOLATION

The combined comparative picture confirms that India is now the outlier, not because its jurisprudence is undeveloped, but because it is over-developed in the wrong direction, excessively discretionary, sovereignty-defensive, and suspicious of international judicial authority. Where the EU, UK, U.S., Singapore, and China treat enforcement as a facilitator of capital mobility, India treats it as a site of jurisdictional defence. Section 44A is structurally incapable of integration with modern conventions because it is built upon a model that assumes scrutiny-first, comity-second; whereas modern commercial law assumes comity-first, scrutiny-exceptionally.

INTERSECTION WITH PRIVATE INTERNATIONAL LAW

The Indian regime governing the enforcement of foreign judgments cannot be meaningfully understood unless situated within the broader theoretical matrix of private international law (PIL). Section 44A CPC is not merely a procedural gateway provision: it is the statutory manifestation of the Indian conception of jurisdiction, sovereignty, comity and adjudicative legitimacy as inherited from the 19th-century conflict-of-laws tradition. What is exceptional about the Indian position is not that it departs from international standards in practice, but that it does so by design, because Indian law still treats recognition as an act of sovereign permission rather than an act of judicial cooperation. This places India squarely within an older epistemology of PIL, in which foreign judgments were not presumptively valid but required domestic judicial “domestication” before they could be allowed to circulate within the legal order.

1. The Theoretical Divide: Comity vs Sovereignty

Historically, international enforcement of judgments developed along two competing jurisprudential theories. The first is the comity-based theory, dominant in the United States and Europe, which holds that recognition of foreign judgments is not an act of grace but a cooperative function arising out of international judicial trust. The second is the sovereignty-based theory, embedded in colonial-era jurisprudence, which holds that a foreign court cannot project judicial authority into another sovereign’s territory unless the receiving court confirms the legitimacy of the rendering jurisdiction. India continues to subscribe to the latter theory. Modern PIL, however, operates on the former: comity is now treated as a quasi-obligatory norm, not a discretionary concession.

2. Section 44A as the Codification of Jurisdictional Suspicion

Section 44A must be read together with Section 13 CPC, because Section 44A is purely procedural unless Section 13 is substantively satisfied. The very act of requiring the receiving forum to reconsider competence, fairness, and policy compatibility is characteristically sovereignty-centric. In international commercial PIL, jurisdiction is “allocated,” not “re-litigated.” In India, jurisdiction is retroactively “validated” through judicial scrutiny. This operative difference is not technical, it is ontological. It defines the Indian regime as an adjudicative checkpoint, whereas treaty-aligned PIL systems function as adjudicative pathways.

3. Jurisdiction in International Law vs Jurisdiction in Indian PIL

International commercial law recognises jurisdiction based on (i) party autonomy, (ii) closest connection, or (iii) institutional allocation (EU model). Indian PIL still relies upon the archaic concept of international competence, interpreted through the territorial lens of municipal jurisdictional norms. Thus, even if a foreign court properly assumed jurisdiction by international commercial standards, say, through a jurisdiction clause, an Indian court can still decline recognition if it believes the connection to the foreign court was insufficient. The Indian judiciary’s insistence that jurisdiction must be “recognisable by Indian norms” is philosophically incompatible with harmonised PIL.

4. Public Policy as a Juridical Veto

In modern PIL, public policy is a micro-exception. In Indian law, it is a macro-exception, doctrinally capable of swallowing the rule. The Indian judiciary has never meaningfully cabined or textualised the doctrine; instead, it applies an amorphous “conscience of the forum” standard that allows judges to displace foreign adjudication on the ground of moral, procedural, cultural or substantive disagreement. This doctrinal elasticity makes India incompatible with any enforcement model that expects predictability.

5. Fraud – The Persistence of the Abouloff Doctrine

The allowance for reopening fraud on merits demonstrates one of the most enduring fragments of an obsolete international law philosophy. Under PIL as currently understood in nearly all advanced commercial jurisdictions, fraud is restricted to “extrinsic fraud,” i.e., fraud that prevented the defendant from fairly participating in the foreign proceedings. India still retains the older rule that any fraud whatsoever, including fraud already litigated before the foreign court, may be re-argued in India. The Indian forum thus does not merely recognise foreign adjudication; it functionally re-audits it.

6. Absence of Treaty Integration

A modern PIL system coordinates recognition with treaties, Brussels in Europe, Lugano in EFTA states, Hague 2019 Convention in emerging global regimes, regional agreements in Asia, and reciprocity-through-bilateralism in China’s new commercial diplomacy. India stands outside all of these harmonisation platforms. There is no self-executing norm of enforceability; there is only unilateral notification, an instrument of domestic law, not international law. Thus, India is not even partially integrated into the global PIL enforcement order.

7. The Conceptual Impasse

The difficulty is not merely legislative but theoretical. To bring India into alignment with international commercial law, the very architecture of Section 44A would have to be reimagined from a sovereignty-screening provision into a comity-grounded enforcement mechanism. India would need to invert its presumption: foreign judgments would need to be presumptively valid, subject only to limited exceptional review, instead of presumptively suspect, subject to judicial certification.

8. The Resulting Juridical Isolation

Because Indian PIL remains sovereigntist, discretionary and domestication-based, it cannot integrate into treaty-aligned enforcement models without reconstitution of its philosophical premises. Section 44A is therefore not merely out of step with modern enforcement regimes, it is structurally incompatible with them. The world has shifted from validity by permission to validity by obligation; India is still anchored in the earlier phase. In consequence, Section 44A now functions as a doctrinal relic: doctrinally logical within its own jurisprudential genealogy, but globally outdated.

DOCTRINAL AND ANALYTICAL EXAMINATION

The enforcement of foreign judgments within India through Section 44A of the Code of Civil Procedure has long operated as a doctrinal hinge between the inward-looking sovereignty of the classical era of private international law and the outward-facing harmonisation imperatives of a globalised commercial order. At a structural level, Section 44A was never drafted to serve as a comprehensive recognition-and-enforcement statute; it was instead conceived as a jurisdictional convenience for execution of judgments originating from carefully delimited “reciprocating” states at a time when cross-border commerce lacked the velocity, complexity, and jurisdictional sophistication of the twenty-first century. Yet, through judicial evolution rather than legislative design, Section 44A has inadvertently become the principal statutory portal through which India’s entire cross-border litigation interface is routed. What follows is a detailed doctrinal reconstruction of this statutory entry point, tracing its semantic structure, judicial accretions, and normative deficits, in order to uncover not merely how Section 44A presently operates, but how radically misaligned its operational logic has become when measured against contemporary expectations of commercial finality, international judicial cooperation, and systemic legitimacy.

The essential difficulty begins with the conceptual asymmetry embedded in the statute: foreign judgments under Section 44A are enforceable only “as if” they were decrees of a domestic district court, yet they are never treated as possessing intrinsic conclusiveness. The words “as if” furnish only a fiction of equivalence, never an authentic parity of normativity. This architecture structurally presupposes suspicion, foreign judicial determinations are executable not because India recognises their adjudicatory authority as a legitimate extension of cross-border judicial sovereignty, but because the Indian legal order tolerates provisional execution conditional upon survival of a Section 13 inquiry. This suspicion-driven architecture is not incidental; it is foundational. It is inherited from a Commonwealth-era protectionist model in which sovereignty was conceptually defensive, reciprocity was executive rather than law-based, and the movement of judgments across borders was a grudging concession rather than a presumptive entitlement.

Because of this design posture, Indian courts have repeatedly approached foreign judgment enforcement through a lens of re-validation, not recognition. What should be a confirmatory inquiry, limited to narrow standardised safeguards, mutates into a quasi-merits rehearing whenever the defendant invokes jurisdictional infirmity, fraud, or public policy. This doctrinal inflation of judicial discretion is not accidental; it stems from the wide drafting of Section 13 and the absence of limiting principles that anchor the inquiry to procedural due process rather than substantive disagreement. The result is that the enforcement proceeding begins to resemble a surrogate appeal from the foreign judgment itself, a posture that modern commercial systems have intentionally abandoned because it corrodes finality, undermines commercial reliance, and disincentivises judicial cooperation across borders.

The structural consequence is that Section 44A functions today less as a gateway for enforcement and more as a sieve of suspicion. Instead of conferring authority, it demands re-persuasion, a foreign judgment must prove its worthiness of domestic execution, not through institutional confidence but through defensive litigation. The doctrinal centre of gravity is thereby inverted: where international commercial law presumes conclusiveness unless impaired by specifically enumerated vitiating factors, India presumes potential invalidity unless conclusiveness is affirmatively earned. This asymmetry has made India a partial outlier, not in principle but in legal effect. The statute’s internal logic has never been recalibrated to reflect the modern understanding that judicial sovereignty is not territorially jealous but internationally complementary.

More fundamentally, the expanded judicial inquiry permitted by Section 13 transforms jurisdictional legitimacy from an objective status to a post-hoc forensic battleground. Modern transnational enforcement regimes treat jurisdiction as an ex ante competence question; if a court validly seized itself of the dispute under public-international-law-compatible connecting factors, party autonomy, contractual jurisdiction, real and substantial connection, then its judgment is entitled to presumptive finality abroad. India, by contrast, places jurisdiction perpetually “under suspicion”, subject to deconstruction after the fact by the enforcement forum, which is structurally ill-suited to reconstruct the entire foreign procedural context. This not only generates inconsistency but erodes commercial predictability because jurisdictional certainty disappears into a discretionary evidentiary vortex.

This structural inversion also produces a doctrinal paradox: although Section 44A is drafted as a mechanism to facilitate enforcement, Section 13 operates as a filtration regime so elastic that the purported facilitation collapses into discretionary re-adjudication. The tension between text and function is thus irreversible under the current statutory scheme. The promise of equivalence, execution “as if” a domestic decree, is a legal fiction that collapses the moment Section 13 allows the district court to re-enter the merits terrain indirectly, under the guise of jurisdictional scrutiny or public-policy review. The more capacious the public policy and fraud exceptions become, the more Section 44A loses its identity as an enforcement statute and assumes the role of a disguised appellate sifting mechanism. This doctrinal metamorphosis is not what a recognition statute is designed to perform; it is the behaviour of a sovereignty-shielding firewall masquerading as a gateway.

Modern comparative jurisprudence demonstrates how starkly this posture diverges from international norms. In the Brussels Recast framework, recognition is automatic and refusal grounds are exhaustively enumerated. In the Hague Conventions of 2005 (Choice of Court) and 2019 (Judgments Convention), the refusal inquiry is not only narrow but tethered to procedural fairness and jurisdictional regularity understood through international standards, not domestic suspicion. In Singapore and England post-judicature reform, the public-policy defence is explicitly limited to violations of “fundamental procedural morality” or “repugnance to the most basic conceptions of justice.” India, however, has never codified such narrowness. Its public policy exception continues to float free of textual discipline, accumulating both doctrinal weight and rhetorical malleability, incentivising defendants to relitigate under the convenient umbrella of “policy objections.” This undermines precisely the commercial confidence that enforcement statutes are intended to cultivate.

The deeper pathology is normative: Section 44A is built on a unilateralism that modern law has repudiated. Contemporary private international law is not merely about tolerating foreign adjudication; it is about co-governing transnational transactions through shared judicial confidence. Enforcement is no longer a discretionary diplomatic courtesy but an infrastructural guarantee of commercial creditworthiness. Finality is not a reward; it is a precondition of participation in cross-border commerce. Section 44A still treats finality as an earned indulgence, not a legal entitlement flowing from adjudicative legitimacy. This sequencing error, first suspicion, then reluctant execution, is the heart of its misalignment.

Doctrinally, this explains why Indian courts have been trapped in an interpretive oscillation: on one hand, they issue soaring rhetoric about the necessity of judicial comity and cross-border certainty; on the other, they operationalise enforcement through a regime of doctrinal distrust. The Supreme Court’s pronouncements on comity are consistently aspirational but rarely transformational. So long as Section 13 remains wide and judicially elastic, the interpretive centre of gravity will remain suspicion, not trust. Normatively, suspicion is self-reinforcing: once a legal system signals that foreign adjudication is presumptively questionable, foreign litigants recalibrate their strategies, defendants weaponise enforcement delays, and reciprocity becomes a paper device rather than a functional guarantee.

The consequence is that India’s enforcement regime becomes a site of procedural re-sovereignisation: the foreign judgment loses its extraterritorial character and must be domesticated not merely procedurally but epistemically. It must be “convincingly Indianized” before execution is permitted. In a world governed by cross-border commercial interdependence, this epistemic nationalism is not merely doctrinally outdated but commercially self-defeating. Credit risk rises, enforcement timelines drag, and foreign counterparty confidence erodes, particularly in high-value commercial disputes where time is intrinsically monetizable.

Yet the mechanics of reform demand more than merely narrowing Section 13. What requires reconstruction is the conceptual stance of the Indian enforcement judiciary: from adversarial verification to jurisdictional trust. Enforcement must not be designed as a gatekeeping suspicion system but as a trust-anchored default regime. This does not dissolve sovereignty; it rearticulates sovereignty as cooperative rather than defensive. True sovereignty is not measured by the ability to reject foreign judgments but by the willingness to recognise them confidently unless a principled exception is triggered.

It is precisely here that India’s refusal to accede to the Hague Judgments Convention produces a doctrinal vacuum: because there is no treaty-based obligation to trust, domestic suspicion expands to fill the normative void. In jurisdictions where treaties exist, statutory interpretation is disciplined by international commitments. India, lacking such external commitments, defaults to judicial discretion, discretion which metastasizes into doctrinal unpredictability. The absence of treaty architecture leaves Section 44A as the accidental core of India’s entire foreign-judgment ecosystem, forcing a 1908 statutory skeleton to perform a 2024 global function.

The doctrinal burden placed on Section 44A is thus historically mismatched to its contemporary function. The architecture was never designed for a world in which foreign courts routinely possess jurisdiction pursuant to contractual forum-selection clauses, in which multinational transactions require seamless enforceability, and in which the commercial system expects legal finality to be border-transcendent. Section 44A emerged from a legal imagination rooted in imperial reciprocity, not multilateral harmonisation. Its normative DNA is cautionary, defensive, and sovereignty-protective; yet the economy it now governs requires reliability, velocity, and trust-based judicial interoperability.

The resulting misalignment manifests operationally in two particularly damaging ways: first, the reopening of jurisdictional competence during enforcement destabilises expectations that should have been settled at the litigation stage abroad; and second, the interpretive elasticity of public policy perpetuates a discretionary veto that can be triggered strategically rather than substantively. India’s enforcement regime thereby invites opportunistic litigation behaviour—especially from judgment debtors skilled in procedural delay. In essence, Section 44A allows a defendant, having lost the case abroad, to manufacture a second bite at the apple simply by reframing substantive dissent as jurisdictional or policy-based objection. This corrodes not only the authority of foreign courts, but the very premise of legal finality.

Comparatively speaking, the international movement in the last three decades has been toward recognition first, exception second. India still operates exception first, recognition second. That sequencing error is more than stylistic—it is jurisdiction-defining. It transforms enforcement from a ministerial mechanism into a judicial battlefield. This is not a defect that can be papered over with improved jurisprudence; it is a flaw inherent in the statute’s structural logic. No amount of “liberal interpretation” of Section 13 can ever convert Section 44A into a true recognition statute because it was not legislatively designed as one. Reconstruction must therefore be conceptual, not merely interpretive.

In a reconstructed model, jurisdictional legitimacy would not be relitigated; it would be accepted unless the foreign court manifestly lacked connection or jurisdiction under internationally acceptable norms. Fraud would be extrinsic only—something that vitiated participation, not something that allows retrospective factual contestation. Public policy would be narrowed to violations of the most fundamental principles of fairness or constitutional morality, not broad disagreement with foreign substantive law. In such a model, Section 44A would cease to be a forensic choke-point and become a conduit that fulfils the expectation of cross-border judicial trust.

The institutional and market stakes of this reconstruction are high. Where recognition regimes are weak, arbitration becomes a corporate default not because it is intrinsically superior but because litigation is perceived as jurisdictionally unreliable. Arbitration is speed, but it is also cost; its boom in India is not merely a function of party autonomy but a symptom of systemic distrust of cross-border judgment enforceability. If India genuinely aims to position itself as a global commercial jurisdiction, it cannot allow its litigation infrastructure to remain doctrinally inhospitable while promoting arbitration as a bandage. Arbitration should be a choice, not an escape from judicial unreliability. This becomes possible only when the litigation enforcement ecosystem is institutionally credible.

A modernised Section 44A regime would also align India’s judicial posture with its economic diplomacy. India advocates rules-based international economic order in trade and investment forums but maintains a suspicion-centric judicial posture in transnational enforcement. This is not merely inconsistent; it is strategically counterproductive. States that receive but do not reciprocally recognise enforcement suffer reputational discounting: foreign courts infer that legal obligations terminating in Indian enforcement risk evaporating into jurisdictional deflection. The credibility cost then travels downstream into contract drafting, security structuring, and forum-selection strategy. Commercial trust fractures not at litigation’s outcome, but at enforcement’s speculation.

The doctrinal turn required, therefore, is a recalibration of sovereignty from fortress to gateway. Sovereignty, in the post-Hague era, is not a shield but a participation right in a shared adjudicative order. Domestic public policy retains a core, but the perimeter narrows. Section 44A today treats the perimeter as infinite; reconstruction requires restoring the perimeter to a principled minimum.

The transformation required is not merely statutory but jurisprudential. Section 44A is the vessel, but judicial philosophy is the current that propels or stalls enforcement. A reformed enforcement architecture must be anchored in a presumption of validity rather than a presumption of contestability. Only when the burden of displacing conclusiveness shifts from the judgment creditor to the judgment debtor does recognition become genuine rather than performative. In the present scheme, conclusiveness is earned; in a reconstructed scheme, conclusiveness is inherent unless rebutted through narrow exceptions. This shift sounds incremental, but it is transformative: it replaces defensive adjudication with trust-based cooperation, converting judicial sovereignty from territorial defensiveness to juridical interoperability.

This shift also recalibrates the function of public policy. In a reconstructed regime, public policy is not a roving jurisdictional veto but a narrowly cabined safeguard protecting only those values that transcend legal preference and touch the constitutional core. Public policy must not operate as a shadow appellate jurisdiction; it must perform the minimalist role of protecting non-derogable fairness. The present capaciousness of Indian public policy reflects not principled caution but structural overreach—a failure to differentiate between constitutional morality and judicial disagreement. Unless narrowed, this exception will continue to swallow the rule.

The same applies to fraud. The Indian judiciary’s continued adherence to a broad conception of fraud—permitting even intrinsic fraud challenges at the enforcement stage—dislocates finality. Modern recognition doctrine distinguishes between fraud that prevents a party’s participation and fraud that goes to merits. The former justifies refusal; the latter does not. India’s jurisprudence collapses this distinction, thereby transforming fraud from a shield of fairness into a weapon of opportunistic delay. A reconstructed Section 44A must therefore codify extrinsic-fraud limitation to prevent enforcement proceedings from becoming post hoc factual battlegrounds.

Jurisdictional competence, too, demands doctrinal narrowing. In the modern era, jurisdiction is not a metaphysical inquiry into abstract sovereign entitlement but a factual inquiry into connection, consent, or contractual submission. If the foreign court exercised jurisdiction on a basis that international law regards as legitimate, the enforcing court should not relitigate the matter absent manifest usurpation. Section 44A, however, leaves jurisdictional objection unbounded, enabling defendants to retrofit jurisdictional challenges by reframing substantive grievances as competence objections. This practice is doctrinally corrosive and commercially destabilising because it perpetuates litigation uncertainty even after full adjudication abroad.

The reconstruction principle that resolves this is prospective jurisdictional finality: once jurisdiction is competently exercised abroad and procedurally fair notice is given, the enforcement court does not sit in collateral judgment over the foreign court’s jurisdictional theory unless that theory was patently incompatible with international standards. This principle is the backbone of Hague-style enforcement, and India’s divergence from it is the principal doctrinal reason the current regime fails reliability benchmarking internationally.

Even more critically, Section 44A’s reciprocal-notification architecture reveals an outdated topography of trust. Reciprocity is treated not as a structural default flowing from legal parity but as an executive concession. This subordinates judicial confidence to diplomatic prudence; enforcement becomes contingent on state-level reciprocal gestures rather than on adjudicative legitimacy. In a multilateral enforcement world, reciprocity is not bilateral courtesy but structural presumption. Treaties embed reciprocity into normative structure; Section 44A externalises it into political discretion. The result is fragility disguised as sovereignty.

Without harmonisation, India signals to the world that foreign finality is provisional and domestically negotiable. But finality that can be domestically renegotiated is not finality at all; it is a contingent claim awaiting domestic ratification. This is the antithesis of what enforcement regimes are designed to guarantee. If a judgment creditor must litigate finality twice—once abroad on the merits, and once in India on conclusiveness—the system is not an enforcement system but a duplication system. It shifts the costs of judicial distrust onto the commercial system.

The economic implications of this doctrinal misalignment become especially pronounced in cross-border credit markets. Where enforcement reliability is uncertain, risk premiums are silently embedded into pricing structures, and India’s borrowing environment becomes more expensive relative to jurisdictions with predictable recognition regimes. Foreign commercial actors do not fear Indian courts per se; they fear enforcement indeterminacy. Courts that are slow are tolerable, but courts that are unpredictably final are structurally incompatible with transnational commerce. Contractual risk is quantifiable; judicial unpredictability is not. So long as Section 44A remains architecturally discretionary rather than ministerial, India’s financial ecosystem continues to carry a built-in uncertainty surcharge.

Moreover, this uncertainty is asymmetrical. Indian parties enjoy outbound enforceability advantages in jurisdictions with modernised recognition regimes, but inbound litigants encounter a defensive, sovereignty-first posture. This asymmetry distorts comity, not because comity is a diplomatic courtesy, but because in international adjudicative culture, comity is the currency of legitimacy. A jurisdiction that receives but does not correspondingly recognise increasingly becomes one that foreign courts hesitate to trust. That hesitation hardens into judicial habit; judicial habit hardens into jurisprudence; jurisprudence eventually translates into heightened evidentiary burdens when Indian judgments travel abroad. Thus, resistance at the inbound stage produces deterioration at the outbound stage. This is not merely doctrinal inefficiency; it is systemic counterproductivity.

India therefore cannot remain simultaneously aspirationally global and doctrinally insular. A legal system cannot invite the world’s commerce while resisting the world’s judicial finality. The path forward lies not in judicial improvisation but in legislative recoding of Section 44A into a recognition-first statute aligned with Hague-model minimal exceptions. Such alignment would not dilute sovereignty; it would modernise sovereignty. Modern sovereignty does not fear cross-border judicial trust—it operationalises it. Harmonisation is not capitulation; it is admission into the circle of presumptive legitimacy that marks advanced transnational judicial economies.

If reconstructed under a Hague-conforming architecture, Section 44A could shift from a jurisdictional sieve into a conduit of legal predictability. The enforcement court would cease to be an auditing tribunal and would become what international law expects it to be: an implementing tribunal. That shift liberates commercial adjudication from procedural aftershocks, allocates finality to the forum of origin, and restores the recognition stage to its proper function—verification, not relitigation. The ultimate beneficiary of such design is not the foreign plaintiff, but the Indian jurisdiction itself, whose credibility becomes fungible legal capital in the global marketplace of judicial trust.

India now stands at a doctrinal crossroads: whether to continue with Section 44A’s pre-globalisation template, drifting as a hesitant participant in transnational enforcement culture, or to recast itself as a jurisdiction of predictable finality. The direction it chooses will determine the normative posture of Indian commercial law for decades. The logic of international commercial law has already moved forward. Section 44A remains stationed in another century. Bridging that distance is not optional if India intends to be not merely a seat of arbitration, but a seat of commercial justice.

Only when enforcement is presumed rather than struggled for, when foreign finality is honoured rather than retried, and when public policy ceases to be an interpretive escape hatch, can India’s adjudicatory sovereignty mature from defensive posture to trusted participation. This reconstruction is doctrinally necessary, economically rational, and jurisprudentially overdue.

FINDINGS / DISCUSSION

The cumulative doctrinal picture that emerges from the preceding analysis reveals that the Indian regime for enforcement of foreign judgments is marked by a foundational disjunct between its statutory text and the judicial function it is now expected to perform in a globalised commercial order. Section 44A CPC remains structurally rooted in a sovereignty-defensive, late-colonial logic of cautious reciprocity, yet it is increasingly deployed within a commercial environment premised upon rapid transnational circulation of adjudicatory outcomes. This mismatch means that India’s enforcement regime is not merely lagging behind best practices; it is conceptually tethered to an adjudicatory worldview that the international system has already abandoned. The consequence is not just doctrinal inconsistency but systemic distrust.

One of the most striking findings is the persistence of jurisdictional re-litigation. This is not a peripheral defect; it is the deepest structural fault line. In advanced enforcement regimes, jurisdiction is a threshold validity question resolved in the court of origin, not a collateral battleground in the court of enforcement. India’s present approach, however, invites jurisdictional deconstruction at the enforcement stage, thereby rendering finality conditionally provisional. That conditionality introduces a form of judicial risk that contradicts the commercial premise of finality itself. Where the merits have been adjudicated abroad, the Indian court should not become a secondary tribunal for substantive second-look challenges disguised as jurisdictional or public-policy objections. Yet current jurisprudence constructs precisely such a duplicative space.

A related finding arises from the elasticity of the public-policy exception. Indian courts have not adopted the contemporary international position that public policy is a narrow constitutional gateway, reserved for egregious violations of fundamental justice. Instead, it persists as a doctrinal excuse for judicial re-examination. The consequence is a jurisprudence of indeterminacy: unpredictability, not ill-will, becomes the disabling factor. In commercial enforcement, unpredictability functions equivalently to denial because the cost of uncertainty is priced ex ante into contract strategy, forum-selection, and lending risk. The public-policy doctrine thus remains India’s most significant credibility drag in cross-border judicial relations.

Fraud doctrine compounds this vulnerability. By permitting challenges based on intrinsic fraud, Indian enforcement courts enable litigants to weaponise allegations that more modern systems treat as already subsumed by the adjudicatory process abroad. This enlarges the enforcement stage into a forum of post-hoc re-trial. Instead of extrinsic fraud operating as a narrow integrity safeguard, fraud becomes an all-purpose ground of delay. Enforcement thereby becomes a second litigation, rather than a recognition mechanism. In commercial reality, such second-litigation risk functions as a litigation tax on finality.

A further institutional finding is that the so-called “reciprocating territory” structure is archaic and diplomatically misaligned with global trends. In modern practice, reciprocity is not granted and revoked by executive whim; it is structurally presumed unless expressly displaced by treaty-based derogation. India’s model reverses this presumption — enforceability is suspended unless affirmatively conferred by governmental notification. Not only is this anachronistic, it symbolically recalibrates foreign judgments as juridical outsiders until invited in. This posture is incompatible with the mainstream conception of adjudicatory comity in the post-Hague era.

The discussion also reveals that the greatest deficit in Section 44A is not doctrinal but philosophical. The statute presumes a world in which judicial sovereignty is fragile and must be defended from encroachment. But sovereignty in contemporary commercial adjudication is not defensive; it is relational. No jurisdiction today manufactures commercial legitimacy alone. Courts grant, and receive, legitimacy by participating in a transnational circulation of judicial trust. Enforcement is the grammar of that trust. A jurisdiction that enforces minimally is a jurisdiction that acknowledges others as equals. A jurisdiction that treats foreign finality as provisional implicitly claims a higher judicial epistemic rank—an unsustainable posture in a world of parity-based adjudication.

This inquiry also demonstrates the systemic cost of maintaining arbitration as a functional substitute for enforcement. Arbitration is flourishing in India not purely because of party autonomy but because litigation lacks cross-border enforceability elasticity. Arbitration is being used as a supply-side correction to judicial defensiveness. But arbitration cannot permanently perform the structural role of litigation. A mature commercial jurisdiction must be able to enforce both foreign awards and foreign judgments with predictability. Presently, India is modern only in the first, not in the second.

The discussion therefore leads to an unambiguous conclusion: Section 44A is not incrementally miscalibrated; it is conceptually obsolete. The modern international order requires recognition-first enforcement: India operates challenge-first enforcement. International regimes presume enforceability; India presumes contestability. This reversal is the singular doctrinal pivot that separates India from harmonised enforcement jurisdictions. Unless this inversion is corrected, Section 44A will continue to function as a statutory anachronism that structurally discourages commercial trust.

From this evaluative lens, harmonisation is not a reform merely desirable for doctrinal neatness; it is essential for institutional credibility. Section 44A cannot remain a 19th-century instrument executing 21st-century obligations. To the extent that India seeks entry into the normative ecosystem of global adjudicatory participation, its enforcement philosophy must reorient from suspicion to interoperability, from sovereignty as boundary to sovereignty as participation, and from discretionary second-look review to presumptive recognition. Only then will the Indian enforcement regime align with the expectations of international commercial law.

CONCLUSION & SUGGESTIONS

The analysis clearly establishes that Section 44A of the Code of Civil Procedure, in its present statutory and judicially constructed form, operates as a defensive recognition regime that is structurally incompatible with the normative direction of international commercial law. What India retains is not an enforcement statute in the modern sense, but a sovereignty-preserving filtration device rooted in imperial reciprocity logic. While historically rational, this model is doctrinally antiquated in an adjudicatory universe that increasingly treats cross-border judicial trust as the default condition rather than the exceptional courtesy. The statute has therefore become misaligned not only with comparative international practice but with India’s own stated economic and diplomatic commitments to a rule-based global commercial legal order.

The conclusion is inescapable: India has reached the outer limit of how far judicial liberalisation alone can “update” Section 44A. The structural flaw is embedded in the statute’s conceptual foundation — it is architecturally designed for a challenge-first, recognition-second paradigm. Contemporary harmonised regimes are recognition-first, exception-second. Unless this order reverses within Indian law, the enforcement regime will continue to generate commercial uncertainty, doctrinal unpredictability, and reputational drag on India’s standing as a commercial jurisdiction. Arbitration will then remain a compensatory escape from litigation, not a parallel mechanism of party autonomy.

A future-proof enforcement regime must therefore be grounded in three jurisprudential pivots:
(1) sovereignty reconceived as participation rather than insulation;
(2) finality allocated to the court of origin rather than retried at the stage of recognition; and
(3) exceptions narrowed to the level of constitutional essentials, not generalised judicial re-evaluation.

These pivots are not cosmetic improvements; they represent a paradigmatic correction.

A reformed or reconstructed Section 44A should accordingly codify the following structural reorientations:

First, jurisdictional review must be narrowed to manifest illegitimacy, not opportunistic reframing. Jurisdiction valid abroad under internationally accepted standards should not be re-litigated domestically. The threshold must be competence, not concurrence.

Second, the fraud exception must be explicitly confined to extrinsic fraud—fraud that erodes participation or procedural legitimacy—not intrinsic disagreement with the factual matrix already adjudicated abroad. Modern enforcement philosophy treats the foreign judgment as evidence of conclusiveness, not a draft awaiting domestic revision.

Third, the public-policy exception must be constitutionalised, not domesticated. Only violations that offend the most fundamental tenets of fairness or constitutional morality—not deviations from Indian substantive law—should trigger refusal. The present capaciousness of this exception transforms it into a disguised appellate jurisdiction, which is jurisdictionally illegitimate in an enforcement proceeding.

Fourth, reciprocity must be presumptive, not executive-conferred. A 21st-century enforcement regime cannot depend on ad hoc governmental notifications as a condition precedent for judicial trust. Recognition should flow from parity of adjudicatory legitimacy, not political designation. The Hague model embeds reciprocity structurally; India still externalises it.

This reconstruction is not merely doctrinally desirable but strategically essential. Without such reform, India will continue to pay an institutional reputational cost: foreign courts will hesitate when recognising Indian judgments abroad, not out of hostility but in reciprocal skepticism. Judicial distrust is not a one-way phenomenon; it is mirrored. If India enforces defensively, other jurisdictions will enforce Indian judgments defensively. That is the doctrinal version of reputational boomerang.

One of the most important normative findings is also normative in policy significance: enforcement is no longer a domestic act — it is now a form of international signalling.

The manner in which a state enforces foreign judgments broadcasts its level of trustworthiness in the global adjudicatory forum. Enforcement is jurisprudential diplomacy. Section 44A, in its present form, broadcasts hesitation rather than parity.

Therefore, the suggestions flowing from this inquiry are not incremental reforms but structural imperatives. India must transition from a 19th-century reciprocity template to a 21st-century interoperability template. It must convert enforcement from a contested jurisdictional theatre into a ministerial legal mechanism. Only then will litigation be restored as a viable alternative to arbitration in transnational disputes involving Indian parties.

The normative trajectory of international commercial law already presumes harmonisation. The only open question is whether India will join this alignment as a leading jurisdiction or arrive tardily under reputational compulsion. A reconstructed Section 44A—narrow exceptions, presumptive recognition, jurisdictional finality, constitutional public policy, and embedded reciprocity—would position India not merely as a recipient of global commerce but as a mature contributor to the global adjudicatory order.

In final doctrinal terms, the conclusion may be captured in a single sentence: India cannot be a jurisdiction of global commerce while remaining a jurisdiction of provisional recognition.

Its future as a commercial adjudicatory forum depends upon transforming Section 44A from a mechanism of suspicion into a conduit of judicial trust. Harmonisation is therefore not optional — it is inevitable. Reform is not improvement — it is alignment with the world India now seeks to lead, not trail behind.