9911796707
TMI Blog1929 (3) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... n procedure in this case as contained in the Ceylon Procedure Code, We have given very careful consideration to this request and we are indebted to Mr. Book Elliot for so readily placing his services and knowledge at our disposal. But we consider that the only way in which Mr. Brook Elliot could be of any real assistance would be if he were asked his opinion as to the very question that we have to decide. An expert in foreign law is called as I understand it to state what the law of a foreign country on a particular point is; an Advocate of the Scottish Bar is often called as a witness in the English Courts to explain the Law of Scotland on any particular point that arises. But in this case we have the law laid down for us in a particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, six years in which to bring his suit in British India on the foreign judgment. The authority of Gurunadha Ramaseshayya v. Tripurasundari Cotton Press, Bezwada 94 Ind. Cas. 515 : 49 M. 468 : 50 M.L.J. 520 : A.I.R. 1926 Mad. 615 : 24 L.W. 102 : (1926) M.W.N. 450 precludes him from relying on the document registered outside British India. The only question in this appeal really is whether the foreign judgment was one based on the merits or not within Section 13(b), Civil Procedure Code. The respondents' Advocate faintly contended that there was no submission to the jurisdiction on the part of the defendant and no service on him but the document which is the original plaint contains clear submission to the jurisdiction for it states: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry of 12th May and by some of the provisions of the Ceylon Civil Procedure Code to which reference will be made in a moment. On 12th May, 1919, the Journal states: Mr. Kondaiya files affidavit and moves that decree nisi be ordered to issue for the 21st May, 1919. 5. That motion was allowed by the District Judge and a decree nisi was issued on 17th May, 1919. Finally substituted service of notice of the decree nisi was effected on 2nd July, 1919, and the decree nisi was made absolute on 4th July, Execution by sale was ordered to issue on 11th August. The affidavit referred to under the entry of 12th May is stated to be the affidavit printed at 7 page of the supplemental documents which is by the agent of the plaintiff sworn on 8th May, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isi or absolute for default. But the Court may set aside, the decree for good cause shown. Further Section 90 says that where there are more defendants than one, the Court shall not be obliged to pass a decree for default against a defendant for failing to appear at a stage of the action provided that one defendant at least appears at that stage. This appears to make it quite clear that under Section 85 the Court is bound to pass, a decree. When we come to Chap. XIX on the trial on cases Section 167 provides: "The evidence of the witnesses shall be given orally" and Section 179: The Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit," and Section 180: In the even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 : A.I.R. 1927 Mad 265 which was a case from Penang. There, there was no trial and no taking of evidence. The case was held to fall within the decision in Keymer v. Viswanatha Reddi 38 Ind. Cas. 683 : 40 M. 112 : 15 A.L.J. 92 : 21 M.L.T. 78 : 32 M.L.J. 35 : 5 L.W. 342 : 19 Bom L.R. 206 : 21 C.W.N. 358 : 25 C.L.J. 233 : 10 Bur. L.T. 175 : 44 I.A. 6 (P.C.), where the defendant refused to answer interrogatories and his defence was thereupon struck out and the defendant was placed in the same position as if he had not defended. In the King's Bench Division in England on a suit brought on this foreign judgment it was held not to have been on the merits of the case within Section 13 (b), Civil Procedure Code. In the Full Bench case Krishnan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment of which there is none was not on the merits and that the appeal should be dismissed with costs two sets for defendant No. 1 and for defendants Nos. 2 and 3 jointly. John Edward Power Wallis, J. 8. The main point raised in this case is almost precisely the same is that in Appeal No. 47 of 1928, namely, whether a decision of the District Court, Colombo, in a regular suit in which all that appears from the record is that on the defendant's non appearance, the plaintiff's proctor filed an affidavit and the Court passed a decree nisi and then a decree absolute under Sections 85 and 86, Ceylon Civil Procedure Code was a decision on the merits which would entitle the plaintiff to judgment on the foreign judgment under a. 13 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
