TMI Blog2001 (12) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1998 the Respondent filed a case in Central London Country Court in United Kingdom. The Respondent claims that the Appellant was served with the summons of that case. The Appellant claims that he had not been served in that case. For our purposes we are not concerned with this controversy and express no opinion thereon. On 20th April, 1998, an ex-party decree came to be passed by the Central London County Court. The decree reads as follows : IT IS ORDERED that There be Judgment for the Plaintiff in the sum of US $49,178.50 plus interest of US $717 00 ANF court costs. A total of US $49,895.50 plus 243.75. On 20th August, 1998 the Respondent filed an Execution Application in the Court of Civil Judge (Senior Division), Ludhiana. Upon receipt of the summons in the execution proceedings the Appellant filled an Application praying for dismissal of the execution application as it was filed without following the procedure prescribed under Sections 38, 39 and 40 of the Code of Civil Procedure. In reply to this Application the Respondent contended that the execution was under Section 44- A of the Code of Civil Procedure and as such there was no requirement to observe the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or claim between the parties. Mr. Hingorani however submitted that this case would be covered by Explanation IV to Section 11 of the Code of Civil Procedure. He submitted that in the earlier Application the defence regarding non compliance of Section 13(b) could have been taken but had not been taken. He submitted that it was not open to the Appellants to take such a defence in a subsequent Application. In our view there is no substance in this submission. Explanation IV to Section 11 of the Code of Civil procedure would have come into play only if some decision had been finally given before the second Application was filed. In that event it could have been urged that all available points should have been urged before that decision was given. In this case the second Application was filed before any decision on the first Application was given. The Appellants could have, instead of filing a second Application, amended their first Application and taken these pleas in that Application itself. Had they amended the first Application there would be no bar of res-judicata or constructive res judicata. If that be so one fails to understand how the second Application was barred by principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itory for the purpose of this section, and superior Courts', with reference; to any such territory, means such Courts as may be specified in the said notification. Explanation 2 - Decree' with reference to a superior Court means any 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, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment. By virtue of Sub-section (3) the Court shall refuse execution if it is shown to the satisfaction of the Court that the Decree falls within any of the Exceptions in clauses (a) to (f) of Section 13. Section 13 reads as follows : 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 jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all formalities were complied with and the decree passed regularly reliance was also placed on cases of Krishna Kumar v. State of Haryana reported in AIR 1999 SC 854 and The Commissioner of Income Tax, A.P. v. M. Chandra Sekhar reported in AIR 1985 SC 114. In our view these authorities are of no help in deciding the question under consideration. Even if we presume that all formalities were complied with and Decree was passed regularly it still would not lead to the conclusion that it was passed on merits. In the case of Middle East Bank Ltd. vs. Rajendra Singh Sethia reported in AIR 1991 Calcutta 335 a decree had been passed ex parte and without service of notice on the judgment- debtor. A number of authorities were cited before the Court including the case of Abdul Rahim (supra). The Court held that even though a decree may be ex parte it may still be on merits provided it could be shown that the Court had gone through the case made out by the Plaintiff and considered the same and taken evidence of the witnesses put up by the Plaintiff. It was held that if an ex parte decree was passed in a summary manner under a special procedure without going into the merits and without tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used to answer the interrogatories which had been submitted to him, the merits of the case were never investigated and his defence was struck out. He was treated as though he had not defended and judgment was given upon that footing. It appears to their Lordships that no such decision as that can be regarded as a decision given on the merits of the case within the meaning of section 13, sub-section (b). It is quite plain that that sub-section must refer to some general class of case, and Sir Robert Finlay was asked to explain to what class of case in his view it did refer. In answer he pointed out to their Lordships that it would refer to a case where judgment had been given upon the question of the Statutes of Limitation, and he may be well founded in that view But there must be other matters to which the sub-section refers, and in their Lordships' view it refers to those cases where, for one reason or another, the controversy raised in the action has not, in fact, been the subject of direct adjudication by the Court. It was submitted that this Judgment lays down that decree is not on merits if defence of the defendant has been struck off. It is submitted that as, in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the merits as disclosed by the pleadings before the Court, if the defendant did not, in spite of notice of action, choose to appear and defend it, the judgment passed by the Court in plaintiff's favour was not the less a judgment on the merits, because it was not founded upon detailed evidence which the plaintiff might have produced had the defendant entered an appearance and contested the claim. The position to my mind is the same as if the defendant had appeared and confessed judgment. In support of his contention that the judgment in question cannot be considered as one passed on the merits, the appellant's counsel has relied on the following passage in Sir William Rattigan's Private International Law (1895) at pages 234-235: It would seem to be equally plain that, if, for instance, it should happen that by the law of a foreign country, a plaintiff was entitled to judgment simply on the non-appearance of a defendant who had been duly served, and without adducing any evidence whatever in support of his claim, or if the wrong-headedness of a foreign Judge should induce him to so decide, the plaintiff would not be entitled in an English Court to sue upon a jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the one applicable in such cases, viz., that the judgment passed must not contravene the fundamental principles of a rational system of law, supports the wide proposition, which it has been urged, is laid down in the passage quoted above. In our view the passage in Sir William Rattigan's Private International Law (1895) at pages 234-235, reproduced above, states the correct law. With great respect to the learned Judges concerned the restricted interpretation sought to be given cannot be accepted. With greatest of respect to the learned Judges we are unable to accept the broad proposition that any decree passed in absence of Defendant, is a decree on merits as it would be the same as if Defendant had appeared and confessed Judgment. We also cannot accept the proposition that the decree was on merits as all documents and particulars had been endorsed with the statement of claim. With the greatest of respect to the learned Judges they seem to have forgotten at stage of issuance of writ of summons the Court only forms, if it at all does, a prima-facie opinion. Thereafter Court has to be consider the case of merits by looking into evidence led and documents proved before it, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement. It appears that the defendant applied to the Reserve Bank of India for foreign exchange in order to engage lawyer in Hong Kong and his application was not granted by the Reserve Bank of India. As a result the defendant could not appear at the trial and an ex parte decree came to be passed against the defendant. The question which arose before the Court was whether such a decree could be said to be a decree on merits. A large number of authorities were cited before that Court and it was ultimately held as follows : 28. In the light of these authorities I have to see whether in the present case the Hong Kong court gave its decision on the merits of the controversy. The Hong Kong Court had before it the defence which was filed by the present defendant. The defence questioned the execution of the guarantee to repay the debts of Madhusudan Co. Ltd. The entry of 7.4.85 in the Register of Guarantees was also questioned by the defendant. In the absence of the defendant, these contentions raised by him could not have been considered. The judgment which is before me does not indicate whether actually any evidence was led before the Hong Kong Court and whether the Court went into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment on the merits is one which is entered after a full trial of the issues through pleadings, presentation of evidence, and arguments by both sides. It is held that the expression 'judgment on the merits' implied that it must have been passed after contest and after evidence had been let in by both sides. In our view the authority also cannot be said to be laying down the correct law. In a given case it is possible that even though Defendant has not entered evidence the Plaintiff may prove its case through oral and documentary evidence. If after consideration of oral and/or documentary evidence an ex parte decree is passed, it would be a decree on merits. In the case of Trilochan Choudhury vs. Dayanidhi Patra reported in AIR 1961 Orissa 158, the above mentioned decision in Chintamoni Padhan's case has been overruled. In this case it is held that under Section 13(6) even an ex parte judgment in favour of the plaintiff may be deemed to be a judgment given on merits if some evidence is adduced on behalf of the Plaintiffs and the judgment, however brief, is based on a consideration of that evidence. Where however no evidence is adduced on the plaintiff's side and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the defendant. In the former case the judgment will be one on the merits of the case, while in the latter the judgment will be one not on the merits of the case. Thus it is obvious that the non-appearance of the defendant will not by itself determine the nature of the judgment one way or the other. That appears to be the reason why S. 13 does not refer to ex parte judgments falling under a separate category by themselves. A foreign Court may have its own special procedure enabling it to give a decision against the defendant who has failed to appear in spite of the summons served on him and in favour of the plaintiff, even without insisting on any evidence in support of his claim in the suit. Such a judgment may be conclusive between the parties so far as that jurisdiction is concerned, but for the purpose of S. 13 of the Indian Civil Procedure Code such a judgment cannot be accepted as one given on the merits of the case, and to that extent the law in India is different from the law in other jurisdictions where foreign judgments given for default of appearance of defendants are also accepted as final and conclusive between the parties thereto. This position was noticed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew taken in these two cases. In our view this authority lays down the correct law. In the case of R.M.V. Vellachi v. R.M.A. Ramanathan Chettiar reported in AIR 1973 Madras 141, the facts were almost identical to the present case. In that case also an ex parte decree had been obtained. In this case it was held as follows : The Law of Civil Procedure governing the institution of suits, service of summons upon the defendant, the liberty to the plaintiff to apply for a decree against the defendant in case of the defendant's default of appearance, in the Supreme Courts of Penang and Singapore, are all similar and identical and are on the same pattern as the procedural laws in England, i.e., The Rules of the Supreme Court . The Full Bench decision of this Court referred to above in ILR 50 Mad 261 = (AIR 1927 Mad 265) (FB) which dealt with the enforceability of a judgment obtained in the Supreme Court of Penang has been followed in almost all the high Courts. This decision was rendered about 45 years back and had been uniformally followed by this Court. (Vide: the Bench decision of Jagadisan, J. and Kailasam, J., in Sivagaminatha v. Nataraja, AIR 1961 Mad 385. It is unnecessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glish Court by one Kaashif Basit, Solicitor for the Respondent, to which affidavit had been annexed copies of the the invoice and other relevant documents. On the basis of this affidavit an order in the following terms came to be passed : UPON reading the Affidavit of Kaashif Basit sworn 20 January 1998 IT IS ORDERED that the Plaintiff be at liberty to serve the Summons in this action on the Defendant at 31, Industrial Area-A, Ludhiana- 141003, Punjab, India, or elsewhere in India, and that the time for acknowledging service shall be 23 days after service of the Summons on the Defendant. This shows that leave to serve the Appellant was granted after reading the affidavit. Thus at this stage the Court had presumably seen the documents annexed thereto. The Court has been careful enough to note that it had read the affidavit. However, at this stage, only a prima facie opinion was being formed. Thereafter the said Mr. Kaashif Basit, Solicitor for the Respondent had filed an affidavit of service stating that service had been effected on one Yash Paul, who is claimed to be an employee of the Appellant. To this Affidavit also all relevant documents were annexed. Thereafter no docu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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