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TMI Blog1926 (9) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ntered up in favour of the Plaintiff as a matter of course. It is on that judgment the present suit is brought. 2. The Subordinate Judge dismissed the suit holding that judgment was obtained against the Defendants in Penang Court by procuring a false and fraudulent return of service of the writs of summonses obtained against them and that in fact the Defendants had not been served at all and that it was against natural justice to recognize such a judgment in our Courts. I am unable to agree that there was any real defect in the service of summons. The issue raised in the present suit, issue 1, has reference only to service on the 1st Defendant. That issue is Has the decree in O.S. No. 714 of 1921 on the file of the Supreme Court of Penang been obtained against the 1st Defendant by procuring a false and fraudulent return of service of the writ of summons on him? . The verified report of the process-server to the Penang Court was that he was personally served, Exhibit D. The only evidence we Have now, vis., that of P.W. 1 is that he was personally served. The 1st defendant did not go into the box and deny it. I think that on this evidence it must be held that the defendant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure entered up judgment for plaintiff on the defendants' default of appearance, such a judgment could not be treated as one on the merits of the case. He has relied on Keymer's case, Keymer v. Visvanatham Reddi 32 MLJ 35 (P.C.) in support of his contention. In that case the Privy Council in agreement with this ' Court's judgment in Visvanatham Reddi v. Keymer 7 MLJ 670 held that a judgment in England obtained after the defence was struck off for default in not answering interrogatories and after the suit had thus become an undefended one, was not a judgment on the merits and a suit founded on it in this country must fail. There was also another case reported in Oppenheim v. Mahomed Haneef 43 MLJ 422, where a suit had been brought in Madras on an ex parte judgment in England, given on an award passed there; the suit was also based on the award itself as well as on the original cause of action. The main point decided in that case was that the English award could not be impugned here on the ground of irregularity, but it was taken for granted in it that the suit so far as it was based on the English judgment that followed on the award could not be maintaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en on default of appearance of the defendant on the plaint allegations without any trial on evidence? 8. The other points in the case are reserved for further disposal after the Full Bench have given their opinion. Venkatasubba Rao, J. 9. I agree that the judgment cannot be supported on the ground on which it is based. As my learned brother has fully dealt with that point, I do not propose to cover the same ground. If the ground on which the judgment is founded, is the only ground available to the defendant, I should, without hesitation, reverse the decision and allow the appeal; but the defendant's learned vakil seeks to support the judgment on another ground, namely, that a foreign judgment by default of appearance cannot be the foundation of an action in an Indian Court. The question is does a foreign judgment given in default of appearance, operate as res judicata under Section 13 of the Civil Procedure Code? The answer to this question depends, in my opinion, upon the view to be taken as to whether the law as contained in this section is or is not identical with the English Law on the point. 10. I cannot accede to the argument that under the English Law a fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 cb (N.S.) 341 the defendant allowed judgment to go by default, observed that the Court of Common Pleas rightly overruled the plea of want of jurisdiction based on the ground that the French action had been brought in a wrong Court in France. In regard to foreign judgments, it was held that the only jurisdiction which matters, is the competence of the Court from an international as distinguished from a purely municipal point of view. Rigby, L.J., and Vaughan Williams, L.J., also approved of the decision in the Vanquelin case (6). 14. That a suit lies in an English Court upon a foreign judgment obtained by default, is assumed in Gustave Nouvion v. Freeman (1889) 15 Ap.C. 1. The point there decided was, that a judgment known as Remate Judgment in a Spanish Court cannot be the foundation of an action. The proceedings in the foreign Court are merely in the nature of Executive proceedings in which the defendant can plead only certain limited defences and under the Spanish Law, in respect of the same subject-matter either party can take ordinary proceedings in which the whole merits may be gone into and the Remate Judgment may be superseded by the final Plenary Judgment. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant was not a subject of, or resident of the country in which the foreign judgment was obtained. As I have said, the weight of authority in England is clearly in favour of holding that a foreign Judgment by default operates as res judicata. 16. The question then arises, is the law in India different? Under Section 13 of the Civil Procedure Code, a foreign judgment is declared to be conclusive except in certain cases specified in six clauses. For the present purpose the relevant clauses are Clauses (b) and (d). Clause (6) says that a foreign judgment shall not be conclusive where it has not been given on the merits of the case. Clause (d) says that it shall not be conclusive where the proceedings in which the judgment was obtained are opposed to natural justice. There can be no doubt that the exception relating to natural justice is recognised in the English cases. The decisions to which I have referred fully bear this out but it seems to me, however, that the further limitation in Section 13, that the foreign judgment should have been given on the merits of the case, is a departure from the English rule. The only English cases where there was any reference to the merits of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Privy Council cases the observation is in the nature of an obiter dictum, and in the second Privy Council case the point was assumed and not challenged. 21. Notwithstanding this, I should be prepared to hold (agreeing with my learned brother) that Section 13, Clause (b), enacts a rule different from that which obtains in England and that an ex parte foreign judgment does not operate as res judi-cata; but I find that a different view has been taken by Phillips, J., in a considered judgment (Madhavan Nair, J., concurring) in Janoo Hassan v. Mohamad Ohuthu ILR (1924) M 877 : 47 MLJ 356 and that another Bench consisting of Phillips and Ramesam, JJ., have, without discussion, followed this case (see Appeals 144 and 145 of 1922 unreported). In view of what I have said, I think that the question as framed by my learned brother should be referred to a Full Bench for its opinion. 22. In making this reference I must advert to an argument advanced by the defendants' learned vakil. He sought to make a distinction between two classes of ex parte decrees, (1) Where by the procedure of the Court the plaintiff must adduce some evidence, generally oral, although there is default of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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