P L D 1952 Dacca 155 (PLP)

GUHA, J.

This appeal is on behalf of the plaintiff and his suit was decreed by the trial Court but has been dismissed by the learned Additional District Judge of Chittagang. In order to appreciate the points raised in this appeal I need state the facts in the case in some details, which are as follows :‑One Bacha Mia and Abdul Bari (defendant) were two brothers and the defendant Abddl Jabbar was the son‑in= law of Bacha Mia. This Bacha Mia, took a loan of Rs. 400 from the plaintiff without any written document for starting a tea shop in Rangoon on the 15th April, 1932. Thereafter the defendant Abdul Bari executed a pronote in favour of the plaintiff for that loan for a sum .of Rs.

450. The defendant Abdul Jabber had nothing to do with the loan till at last in December, 1934, when, according to the plaintiff's own evidence in the Patiya Court, Abdul Jabbar paid a casual visit to Rangoon and stayed there for about 6/7 days as if for liquida tion of the assets of his father‑in‑law Bacha Mia at Rangoon and it was alleged that he requested the plaintiff not to proceed with a suit for realisation of that debt and it was further alleged that he offered a promise for paying off the said debt in instalments. This not being done, the plaintiff instituted S. C. C. Suit No. 6338 of 1935 in the Small Cause Court at Rangoon against Bacha Mia, Abdul Jabbar and Abdul Bari and this suit was decreed ex‑parte only against Abdul Jabbar and Abdul Bari for Rs. 687 on the 7th February, 1936, when all the three defendants in that suit and none of them was a resident of any place within the jurisdiction of the Small Cause Courts at Rangoon. Then the plaintiff tried to execute that decree in the Second Munsiff's Court at Patiya, when Abdul Jabbar brought other Suit No. 258 of 1936 in the Patiya Court to set aside &e ex‑parte decree of the Rangoon Court against him. On the 1st April, 1937, Burma was separated from India. It will be evident from the order of the Patiya Court (Ex. 12); dated the .8th July, 1937, that the plaintiff Fazal Ahmed's Pleader expressed that his client would not contest the suit of Abdul Jabbar if the Rangoon Court decree be set aside against Abdul Jabbar alone and the Original Suit No: 6338 of 1935 be restored as against him and the pleader for the plaintiff did not press for costs, and the decree against Abdul Jabbar was, therefore, set aside. Thereafter on the 6th October, 1937, the plaintiff Fazal Ahmed applied for setting aside the entire ex‑parte decree in the Rangoon Court and this was allowed on the '6th March, 1940, and issue of fresh summonses was ordered making them retur nable on the 6th May, 1940, and 8 days, thereafter, on the 14th May, 1940, a fresh ex‑parte decree against defendants Nos. 1 and 2 only, for the claim ks. 687 with costs Rs. 136 and interest at 9 per cent. per annum was passed. Hence the present suit by the plaintiff for recovery of Rs. 1,041‑4‑0 on the basis of a foreign judgment in the Patiya Second Munsif's 'Court, by filing only the decree (and not the judgment) of the Rangoon Court. The suit was contested by both the defendants by filing two written statements. The defendant Abdul Bari has con tested the suit stating that the suit is hot maintainable without filing the foreign judgment which was not countersigned but only the foreign decree had been filed and so the suit was not maintainable in its present form, that the suit was barred by limitation, that the defendant was a party to the case or setting aside the decree but plaintiff did not get any order setting aside the ex‑parte decree as against him, that the decree obtained against him after revival was without jurisdiction and was a void decree, that the Rangoon Court had no jurisdiction over him as he was a non‑resident foreigner, that the decree was not‑enforceable as it was not obtained after proper service of summons and. that the decree was obtained by fraud because the defendant had no monetary transaction with the plaintiff and it was obtained‑on a breach of law in British India and so it was not .enforceable. The defendant Abdul Jabbar contested the decree on the aforesaid grounds and further contended that the decree was fraudulent because after restoration there was no further service of summons there was no trial on the merits and the decree was opposed to natural justice and that this defendant. never went to Rangoon nor did he ever stand surety for anyone, but he was falsely proceeded against to satisfy a private grudge of the plaintiff. The trial Court decreed the plaintiffs' suit holding that the decree of the Rangoon Court dated the 14th May, 1940, is a foreign judgment and though only the decree had been produced it was enforceable in law, that the entire decree in the Rangoon suit was set aside by the Patiya Court and the original suit was revived and the subsequent proceeding in the Rangoon Court and the decree, dated the 14th May, 1940, was not a nullity, that defendant No. 1 though a foreigner had a permanent or temporary residence at Rangoon and was carrying on business there but the defendant No. 2 as a non‑resident foreigner, that both the defendants were within or at least submitted to the jurisdiction of the Rangoon Court by their conduct that there was no fraud in getting the decree, that the defendant No. 2 stood surety for the pronote debt at Rangoon which was executed at the same place by the defen dant No. 1, that the ex‑parte judgment was on the merits, that the summonses of the suit Were duly served on the defendants and the judgment, dated the 14th May, 1940, was enforceable and that the suit was not barred by limitation. The lower appellate Court has reversed the decision holding that the suit is riot maintainable as it is based on a foreign decree and not on foreign judgment, that the defen dants were outside the jurisdiction of the Rangoon Court, that Patiya Court only set aside the decree as against the defendant No. 2 Abdul Jabbar only, that as the defendants were foreigners the judgment of the Rangoon Court, dated the 14th May, 1940, was not a judgment passed with jurisdiction within the meaning of section 13 (a) of the Code of Civil Procedure, that cause of action alone could not confer jurisdiction, that in 1933 the Rangoon Court had no jurisdiction over the defen dants, that defendant No. 2 did not voluntarily submit to the jurisdiction of the Rangoon Court merely, by getting the first decree set aside as he was a non‑resident foreigner on the date of the revival of the suit or at the date of the eventual decree, that the foreign decree was not passed on merits, that defendant No. 2 was a mere volunteer and there was no consideration for his stand surety and there was no contract for his standing surety, that the claim against Abdul Bari was barred by limita tion but even as against Abdul Jabbar was not enforceable as it was without jurisdiction and the plaintiff's suit was dis missed. Hence this appeal by the plaintiff. The only question in this appeal urged by Mr. Pakrashi for the plaintiff‑appellant is that the judgment of the Rangoon Small Cause Courts, dated the 14th May, 1940, is binding on the parties to this litigation by virtue of section 13 of the Code of Civil Procedure and the present suit is concluded ‑by that judgment. Incidentally it will require determination if that decision is binding on the defendant No. 1 Abdul Bari or whe ther he is bound by the decision of the Rangoon Small Cause Courts, dated the 7th February, 1936, and if so, whether the claim against the defendant No. 1 is barred by limitation. Mr. Pakrashi urges that the learned Additional District judge has erred in his decision; and, therefore, it should be set aside and that of the trial Court restored. Mr. N. C. Choudhury for the respondents contends on the other hand that the lower appellate Court is right in holding that the present suit is not maintainable because only the decree of the Rangoon Court has been filed and not the judgment. Mr. Choudhury then contends that even if the suit is maintainable, (i) the decree has been shown to be without jurisdiction because the defen dants are non‑resident foreigners, (ii) that the defendants have not submitted to its jurisdiction by their conduct, and (iii) that the decision of the Rangoon Court was not on merits. Section 2 of the Code of Civil the following definitions, which, however, are all subject to the qualification "unless there is anything repugnant in the subject or context. (2) 'Decree' means the formal expression of an adjudi cation which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final (5) " `Foreign Court' means a Court situate, beyond the limits of British India which has no authority in British India and is not established or continued by the Central 'Government'." (6) Foreign judgment' means the judgment of a foreign Court". (9) "'Judgment' means the statement given by the Judge of the grounds of decree or order." In part I of the Code of Civil Procedure, 1908, regarding the jurisdiction of suits in general it is provided Section 13.‑"A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except, (a) where it has not been pronounced by a Court of competent juris diction, (b) where it has not been given on the merits of the case, (c) where it appears on the face of the proceeding to be founded on an incorrect view of international law or a refusal to recognise the law of British India in cases is which such law is applicable, (d) where the proceedings in which the judgment was obtained are to opposed to natural justice, (e) where it has been obtained by fraud, (f) where it sustains a claim founded on a breach of any law in force in British India. Section 14.

"The Court shall presume, upon the produc tion of any document purporting to be, a certified copy of a foreign judgment, that such judgment as pronounced by a Court of competent jurisdiction, unless the contrary appears on the record ; but such presumption may be‑ displaced by proving want of jurisdiction." In Part II of the Code of Civil Procedure, where provisions for execution have been made, section 44‑A, explanation 3 runs as follows :‑ "'Decree' with reference to superior Court, means a decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, and (a) with reference to superior Courts in the United Kingdom, includes judgments given and decrees made in any Court‑in appeal against such decrees or judgments, but (b) in no case includes an arbitration award, even if such award is Enforceable as a decree or judgment." In matters of foreign judgment the Courts in this country are guided by the same principles as are adopted by the Courts of England. See Nalla Kaneppa Settiar v. Mohamed Iburam Saheb (1896) I L R 20 Mad.

112. The basis of English conflict of laws is the need to do justice in cases involving a foreign element. It is obvious that no Court can do justice if it refuses absolutely to recognise the existence of a foreign law or of any rights acquired thereunder, or denies validity to normal foreign judgment (Graveson on the Conflict of Law at page 5 of 1948 edition). The theory of the vested right is that the Courts of a country never apply foreign law as such, but only deal with rights acquired under a foreign law, which law must be proved as a fact before the Court. The most outstanding exponents of this theory are Dicey in England and also Dr. Schmitthoff in England and Beale in the United States. The authorities are clear that the theory of the conflict of laws is based on the need and purpose of the Courts to do justice in any case coming before them, whether or not such a case involved the question of rights validly acquired abroad. Dicey on the Conflict of Laws, 6th edition, at pages 351‑352 summaries the law as follows : "In an action in personam in respect of any cause of action, the Courts of a foreign country have jurisdic tion in the following cases First case.‑Where at the time of the commencement of the action the defendant was resident or present in such country so as to have the benefit, and, be under the pro tection, of the laws thereof. Second case.‑(Semble) when the defendant is, at .the time of the judgment in the action, a subject or citizen of such country. Third case.‑Where the party objecting to the jurisdiction of the Courts of such country has, by his own conduct, sub mitted to such jurisdiction, i.e., has precluded himself from objecting thereto‑ (a) by appearing as plaintiff in ‑ the action or ‑counter claiming; or (b) by voluntarily appearing as defendant in such action ; or (c) by having expressly or impliedly contracted to submit to the jurisdiction of such Courts." "Again the debts or chooses in action are generally to be looked upon as situate in the country where they are principally recoverable or can be enforced." For Pollock M. R. in New York Insurance Co. v. The Public Trustee (1924) 2 Ch. 101 p.

109. Moreover lex forum coverns all procedural questions and lex causae is to be followed also in matters of procedure. At page 362 the learned author Dicey states.: "In an action in personam the Courts of a foreign country do not acquire jurisdiction either; (1) from the .mere possession by the defendant at the commencement of the action of property locally situate in that country ; or (2) from the presence of the defendant in such country at the time when the obligation in respect of which the action is brought was incurred in that country. In England where the defendant in an action in personam is, at the time for the service of the writ, in England, the Court has jurisdiction in respect of any cause of action, in whatever country such cause of action arises. Then a valid foreign judgment in personam may be enforced by an action for 'the amount due under it, if the judgment is or a debt, or a definite sum of money and final and con clusive but not otherwise. See Dicey at page

403. In Rule 89 at page 407, Dicey states how and when a judgment creditor who has obtained a judgment in a superior Court in a British territory under which a sum of money is made payable may apply to the superior Court in the United Kingdom to have the judgment registered in the Court and the exceptions are almost similar to those enumerated in section 13 of the Code of Civil Procedure, 1908. The true principle on which the judgments of foreign Courts are enforced in England is that the judgment of a Court of competent jurisdiction over the defendant imposes a duty, or obligation on the defendant to pay the sum decreed which the English Court is bound to enforce, and consequently that anything which negatives that duty, or forms a legal excuse for not performing it, is a defence to the action. Schibsby v. Lhestenholz L R 6 Q B 155 p.

159. In the case of Rousillon v. Rousillon (1880) 14 Ch. D 351 p. 371, Fry L J referring to Schibsby v. Westenholz and Copin v. Adamson L R 9 Ex. 345 ; explained the circumstances which have been held to impose upon the defendant the duty of obeying the decision of a foreign Court. He said "the Courts of this country consider the defendant bound where he is a subject of the foreign country in which the judgment has been obtained ; where he was resident in the foreign country when the action began; where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued ; where he has volun tarily appeared ; where he has contracted to submit himself to the forum in which the judgment was obtained, and possibly if Becquet v. MacCarthy 2 B. and Ad. 951 be right, where the defendant has real estate within the foreign jurisdiction, in respect of which the cause of action arose whilst he was within that jurisdiction". If these tests are adopted in the present case on its findings, it will be seen that none of them applies except that defendant Abdul Bari has contracted the debt at Rangoon but I shall show later on that so far as he is concerned, the plaintiff's claim is barred by limitation. It has been held by the House of Lords in Doglioni v Crispin (1866) L R I H L 301, that if there is jurisdiction over the subject matter and the person, the validity of a foreign judgment cannot be questioned. In Pemberton v. Hughes (1899) 1 Ch. 781 p, 790‑1, Lindley M. R observed as follows : "If a judgment is pronounced by a foreign Court over persons within its jurisdiction and in a matter with which it is com petent to deal, English Courts never investigate the propriety of the proceedings in the foreign Court, unless they offend against English views of substantial justice. But the jurisdiction which alone is important in these matters is the competence of the Court in an international sense, i.e., its territorial competence over the subject matter and over the defendant. Its competence or jurisdiction in any other sense is not regarded as material by the Courts of this country." That dictum has been adopted by Rigby L. J. and Vaughan Williams L. J. in. that case. It has been urged before me by Mr. Pakrashi for the appellant that defendant Abdul Bari was a resident of Rangoon when he executed the pronote on the 4th May, 3033, and that defendant Abdul Jabbar came to Rangoon at least temporarily for a few days in December, 1934, when he undertook the liability to clear off the debts of his father‑in‑law and uncle‑in‑law and that Abdul Jabbar applied in the Patiya Court to set aside the first ex parte decree of the Rangoon Court passed on the 7th February, 1936, and thereby he submitted to the jurisdiction of the Rangoon Court, and, therefore, the. decree passed by the Rangoon Court on the 14th May, 1940, is enforceable against both of them, It may be stated that neither Abdul Bari nor Abdul Jabbar had been carrying on business or had any business or had been residents of Rangoon either when the first decree was passed on the 7th February, 1936, or on the 14th May, 1940, when the judgment of the Rangoon Court was passed against them, and which the plaintiff wants to enforce against the defendants. The argument of Mr. Pakrashi seems to me on the analogy of Becquet v. MacCarthy (Supra), but there the defendant still held, at the time of the suit, a public office in the colony in which he was sued, and the cause of action arose out of or was connected with it. His duty required him to be present in the colony, and, therefore, amenable to the jurisdiction of its Courts. It was on this ground that he was held to be constructively present in the colony, though, in fact, temporarily absent. The Privy Council in the case of Sirdar Gurdyal Singh v. The Rajah of Faridkote (1894) A C 670‑L R 21 1 A 171 ; (to which 1 shall presently revert) was of the same opinion, and so also the Court of appeal in Emanuel and others v. Symon (1908) L R I K B 302 ; (which I shall presently advert to). The Privy Council in Faridkote case ruled that if the case could not have been distinguished by its special features from the case of any absent foreigner who, at some previous time, might have served the Colonial Government, they would have regarded the case as wrongly decided. I may here observe that Mr. Pakrashi refers to me the case, of Carl Franz Adlof Otto rlugenohl v. Wing On & Company (Shanghai), Ltd., (1927) 47 C L J 263 P C, which follows the principles recognised in English Courts regarding foreign judgments and there it has been held that the broad principle applicable in such a case is that where the subject matter is a res so situated as to be within the lawful control of the State under the authority of which a Court sits, and that authority has conferred on the Court jurisdiction to decide as to the disposition of the thing, and the Court has acted within that jurisdiction, that decision inconclusive whether according to the law of another country, it might seem right or wrong and in that case Castrique v. Imrie (1869) L R 4 H L 414, has been followed. That case and the present case are strikingly dissimilar. No one controverts the proposi tion of law laid down there. The current of decided cases will not justify me to hold with Mr. Pakrashi that the decision in the Rangoon Court is within jurisdiction and is binding on the defendants. The general law is laid down very clearly by Earl of Selborne in the case of Sirdar Gurdyal Singh v. Rajah of Faridkote (Supra), as follows : "Under these circumstances there was, in their Lordships' opinion, nothing to take this case out of the general rule, that the plaintiff must sue in the Court to which the defendant is subject at the time of suit (Actor Sequiture forum rei); which is rightly stated by Sir Robert Phillimore International Law, Vol. 4, S. 891) to lie at the root of all international, and of most domestic, jurisprudence on this matter. All jurisdiction are properly territorial, an extra territorium jusdicenti, impune non paretur. Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or tempor arily resident within the territory while they are within it ; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory and it may be exercised over movables within the territory ; and, in questions of status or succession governed by domicile, it may exist as to persons domiciled, or who when living were domiciled, within the territory. As between different provinces under one sovereignty (e.g, under the Roman Empire) the legislation of the sovereign may distribute and regulate jurisdiction ; but no territorial legislation can give jurisdiction which any foreign Court ought to recognise against foreigners, who owe no allegiance or obedience to the power which so legislates." "In a personal action, to which none of these causes of juris diction apply, a decree pronounced in absentum by a foreign Court to the jurisdiction of which the defendant has not in any way submitted himself, is by International law an absolute nullity. He is under no obligation of any kind to obey it ; and it must be regard as a mare nullity by the Courts of every nation except (when authorised by Special Local Legislation) in the country of the forum by which it was pronounced. "These are doctrines laid down by all the leading authorities on International law; among others, by Story (Conflict of Laws, 2nd edition, sections 546, 549, 553, 554, 556, 586), and by Chancellor Kent (Commentaries, Vol, I, p. 284, note C, 10th edition), and no exception is made to them, in favour of the exercise of jurisdiction against a defendant not otherwise subject to it, by the Courts of the country in which the cause of arose, or (in cases of contract) by the Courts of the locus solutionis. In those cases, as well as all others, when the action is personal, the Courts of the country in which a defendant resides have power, and they ought to be resorted to, to do justice. In the case of Emanuel and others v. Symon (Supra) Lord Alverstone C. J. and Buckley and Kennedy L. JJ. in separate judgments concurrently laid down the rule that neither the fact of possessing property situate in a foreign country nor the fact of entering into a contract of partnership in that country to deal with that property is sufficient to give the Courts of the foreign country jurisdiction in an action in personam over a British subject not resident in the foreign country at the date of the action, who has neither appeared nor expressly agreed to submit to the jurisdiction of the foreign Court. Their Lordships concurrently held that the defendant, not being domiciled in Western Australia, nor resident there at the date of the action in the Supreme Court of that colony, and not having appeared to the process or expressly agreed to submit to the jurisdiction of that Court, was not bound by its findings or decree; and that the action in England, which was based on that finding and decree, could not be maintained. These decisions in my opinion conclusively show that the plaintiff in this case can get no relief in this suit. The decisions in India are also to the same effect and shall refer to some of them. I respectfully agree with the reasonings in the decision of R. C. Mitter J. of the Calcutta High Court in the case of Chormal Balchand v. Kasturi Chand Seraogi (1936) 40 C. W. N. 591 ; where his Lordship has held that a question under section 13 (a) of the Code of Civil Procedure as to whether the foreign Court is a Court of com petent jurisdiction must be determined, in regard to personal actions, not by the territorial law of the foreign State but by the rules of private International law and a foreign judgment in a personal action is not a judgment of a Court of competent jurisdiction within the meaning of section 13 of the Code of Civil Procedure unless the defendant (i) is subject of the foreign country in which the judgment is delivered, (ii) has a residence in that country whey the action began, (iii) as a plaintiff has selected the forum in which he is afterwards sued, (iv) had voluntarily appeared and submitted to its jurisdiction, (v) had contracted to submit himself to the foreign forum in which the judgment was obtained, or (vi) (semble) has real estate within the foreign jurisdiction when cause of action arose. In the present case there is nothing to take it out of the general rule that the plaintiff must sue in the. Court to which the defendant is subject at the time of the suit. So the judgment A under consideration is not a judgment of competent‑jurisdiction] I entirely agree with the reasoning of Mitter J. in that decision that cause of action is not a general ground of jurisdiction recognised in International Law and no foreign judgment can be regarded as given by a Court of competent jurisdiction simply on the ground that the cause of action arose within its jurisdiction and by, the local law of the foreign State concerned, a Court may entertain a suit for which cause of action arose. That principle has been reiterated by Mitter and Akram JJ. in a different set of circumstances in the case of Nilratan Mukhopadhaya and others v. The Cooch Behar Loan Office, Ltd. (1940) 45 C. W, N.

113. The Allahabad High Court in Dheo Tahal Ram v. Binaek Shukul (1931) I L R 53A 747, has held that the jurisdiction of a foreign Court is territorial and attaches upon all persons, either permanently or temporarily residents within the territory while they are within it, but it does not follow them after they have withdrawn from it, and that even territorial jurisdiction cannot give jurisdiction to a foreign Court against persons not owing allegiance to the legislating authority, and that the submission to a jurisdiction in case of foreign Court must be to the foreign Court itself and probably before the judgment is pronounced for if there is no such submission the judgment is a nullity ; and that the mere fact that a defendant allows the suit in foreign Court to be heard ex‑parte and decreed against him does not amount to his submitting to the jurisdiction of the Court nor does his subsequent conduct in depositing a certain sum in an executing Court in British India sometime later and asking for time is any evidence to show that he had submitted to the jurisdiction of the Foreign Court before the decree was passed. I am in entire agreement with those reasonings and the decision in that case, and in my opinion this decision applies to the present case and non‑suits the plaintiff. The Madras High Court in the cases of Nalla Kaneppa Settiar v. Muhammad 1buram Saheb (Supra), Gurusiuami and others v. Muhammad Khan Vhahib A I R (1933) Mad. 112‑140 I. C. 588 ; Noroppa Naicken v. Govindaraja Naicken (1934)1 L R 57 M. 824 ; and Subrama niam Chettar v. Srinivasa Ayyar A I R (1951) Mad. 289; are also to the same effect: In the facts of this case and in view of the findings and in the light of the aforesaid principles, I am of opinion that there are no special circumstances in the present case to take it out of the general rule that the plaintiff must sue in the Court to which the defendants are subject at the time of the suit, a rule which has been stated by Sir Robert Phillimore in his International Law and in the aforesaid decisions referred to above "to lie at the root of all International and of most domestic jurisprudence on this matter". That was the course which the plaintiff in this case should have followed, if he desired a remedy against the defendants; and that not having been followed, the plaintiffs' suit must be dismissed. I shall deal with three other decisions which were referred to at the bar, but they are distinguishable. The decision of the Privy Council in Brijlal Ramjidas and another v. Govindram Gordhandas Seksaria and others (1947) L. R. 74 I. A. 203, is of no avail to the plaintiff. In that case there was a partner ship between the appellants and respondents to carry business at Indore. Seven of the partners referred the dispute to arbitration and the arbitrators gave their award according to Indore law by which partnership was allowed to be dissolved. The award was filed in the District Judge's Court at Indore, whence it was transferred to the High Court, which held that it was a valid award. Then a suit was filed in Bombay High Court to declare the award invalid and the defendant respondent relied on the Indore Court judgment as a bar to the suit, and Chagla J. held that it was barred and that decision was upheld by Beaumont C. J. and Weston J. Hence an appeal was taken to the Privy Council. Lord Du Parcq in delivering the judgment of the Board observed as follows: "The law relating to foreign judgments and their effect is stated in sections 2 and 13 of the Code of Civil Procedure, 1908 ......... Their Lordships agree with the learned Chief Justice that the expression 'foreign judgment' in section 13 must be understood to mean 'an adjudication by a foreign Court upon the matter before it'. The Chief justice pointed out that it would be quite impracticable to hold that a foreign judgment means a statement by a foreign Judge of the reasons of his order since if that were the meaning of 'judgment' the other section (viz, section 13) would not apply to an order where no reasons are given." At page 211 of the report it has been held that the appellate Court has rightly held that the question whether a foreign Court is the proper Court to deal with a particular matter according to the law of the foreign country is a question for the Court of that country. It has then been held that the appellants appear to have consented to the transfer of the proceedings from the District Judge's Court to the High Court. It was then argued before the Board that the decision of the High Court was not given on the merits, but that contention was repelled by holding that the judgment of the judge who heard the case was given on the merits, and that the High Court in its appellate jurisdiction held that his judgment must prevail. Their Lordships than held that none of the exceptions in section 13 of the Code of Civil Procedure had any application to that case and the3‑ retrained discussing the question whether or not the judgment High Court of Indore was correct according to the law of the State. At page 212 of the report their Lordships observed " there is nothing in section 13 to support a contention that every step in the reasoning which led the foreign Court to its conclusion must have been directly adjudicated upon." 'Directly' does not mean 'expressly.' So the decision in that case has no application to the facts of the present case. The case of rlanoothassan Sait v. M. S. N. Mahamad Ohuthu, 82 I C 425, cited by the appellant is clearly distinguish able because in that case a power of attorney was given to another to defend the suit in the foreign Court and so it was held in that case that the defendant submitted to its jurisdiction. The other case cited by the appellant is the case of Wazir Sahu and another v. Munshi Das (1940) I L R 20 Pat.

144. In that case an ex‑parte decree was passed in the French Chander nagore Court, which was notified to the defendant, who filed an application for re‑hearing but it was rejected and then a suit was filed in Bath Court. Defence was that the foreign judg ment was not conclusive because it had not been passed by a competent Court and it was not given on merits but was obtained by fraud. The Courts below found that the judgments in the suit and on re-hearing were not without jurisdiction as the defendant voluntarily submitted to the jurisdiction of the French Court, but they held that the judgments had not been given on the merits and had been obtained by fraud. The High Court held that there was no fraud. It has been held in that case that merely because one of the issues has not been dealt with would not in itself be enough to justify a finding that the decision was not upon the merits. It has then been held that an ex‑parte decision may or may not be on the merits and the mere fact of its being ex‑parte will not in itself justify a finding that the decision was not on merits ; but the real test is not whether the decision was or was not ex‑parte, but whether it was formally passed, as a matter of course, or by way of penalty, or it was based upon a consideration of the truth or otherwise of the plaintiff's claim. Then it has been held that under the French Civil Procedure Code an ex‑parte judgment will be based upon a consideration of the truth of the claim and that the scope of a re‑hearing proceeding in French Court is wider than that of a re‑hearing proceeding in British India and in that view it was held in that case that the ex‑parte decision and the decision in the re‑hearing case were both on merits. It was, therefore, held that the decisions in the French Court were conclusive as they did not come within any of the exceptions specified in section

13. So that case is not applicable to the present case and is distinguishable. In that case also it has been reiterated that a personal decree by a foreign Court against a person who was not a citizen of the country and was not a resident in it would be regarded in the British Courts as a nullity, unless there is something to show that the defendant had in some way voluntarily submitted to the jurisdiction of the foreign Court, but when the defendant did not submit to the jurisdiction of the foreign Court, the judgment passed by such Court is a nullity and subsequent conduct of the defendant would not validate it. It is clear, therefore, that this decision does not in any way assist the plaintiff, because in that case the finding is 'that the defendant clearly submitted to the jurisdiction of the foreign Court voluntarily before the judgment was passed ; and the general rule laid down there rather supports the contention of the defendants. Herein this case neither of the defendants have been residents of Rangoon when the decree was passed in Rangoon Court on the 14th May, 1940, and that decision was passed ex‑parte formally but not on merits acid so it was without jurisdiction and that is manifestly clear from the findings. Again the original decree that was passed on the 7th February, 1936, was set aside by consent only against the defendant Abdul Jabbar and not against Abdul Bari but the entire suit was revived and a decision was given formally ex‑parte against both the defendants when both were non‑resident foreigners and the decision was not on merits and so that decision comes within the exceptions (a) and (b) to section 13 of the Code of B Civil Procedure. The findings are clear in this case that none of the two defendants submitted to the jurisdiction of the foreign Court so the foreign judgment is not binding on them. Reference was made to the case of h. Subramania Aiyar v. S. C. Annasami lyar and others A I R (1948) Mad.

203. But in that case the plaintiff got a commission issued to have the defendant summoned and examined as a witness and the defendant appeared and pleaded that the Court at Trivandrum had no jurisdiction to try the suit and the defend ant engaged a counsel, objected to the question put to him in his examination and finally got himself cross‑examined and raised a plea in bar and it was held that the commission evidence was part of the records of the case in the Trivandrum Court. That case has no application to the present case. Then again the present appeal can be disposed of on the short ground that the suit is based not on a foreign judgment but on a foreign decree. The judgment of the foreign Court has not been filed but only a decree has been filed. So it can be said that the suit is not maintainable. Mr. Pakrashi refers to me sections 14 and 44‑A of the Code of Civil Procedure. Neither of the sections can be of any avail to him. Section 14 speaks of that if a certified copy of the judgment of the foreign Court is produced that shall be presumed to be a judgment of competent jurisdiction and that presumption is rebuttable. Section 44 A is in Chapter regarding execution and in that conn ection in explanation 3 it is stated that " decree of a superior Court " means " any decree or judgment of such Court", but I cannot hold from that that a foreign judgment is conclusive without production of that judgment but only on the basis of the decree of that Court, "Foreign judgment" has been defined in section 2 (6) and "judgment " has been defined in section 2 (9) and " decree " in section 2 (2), but I am unable to hold that a foreign judgment is enforceable on the production of the decree of that Court, because in deciding a case on foreign judgment various considerations arise, which cannot be determined without looking into the judgment. As against the defendant Abdul Bari, the judgment that is binding is the Judgment, dated the 7th February. 1936. and not that, dated the 14th May, 1940, because the suit was not revived as against Abdul Bari by the proceedings in the Patiya Court. But the judgment of the 7th February, 1936, cannot be enforced because it is barred by limitation under article 117 of the Limitation Act. So considering the matter in all its aspects, I hold that the plaintiff appellant is not entitled to any relief and the plaintiff's appeal in this Court and his suit in the trial Court must be dismissed. But in the circumstances of the case, I direct that the parties shall bear their own costs throughout. Leave under clause 15 of the Letters Patent asked for and refused. A. H. Appeal and suit dismissed.