TMI Blog1942 (3) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... duly appeared to the writ on 27th July 1937. Each party was represented by a solicitor. The writ itself was specially endorsed under Order 3, Rule 6 of the Rules of the Supreme Court. There were negotiations between the parties with the' result that the proceedings were dragged out, but eventually the matter was ordered to be tried by a special referee in the Court in London. No pleadings were delivered in the action other than the statement of claim endorsed in the writ. On 17th February 1939, the matter came before Mr. T. Eastham, one of the official referees, and he dealt with it and gave a certificate in these words: I, T. Eastham, K.C, having tried this action pursuant to an order of Master Simner dated this 16th February 1938, whereby the said action was ordered to be tried by an Official Referee and on hearing the counsel for the plaintiff and the defendants not appearing do hereby order that judgment be entered for the plaintiff on the claim for the sum of 1313-13-11 (one thousand three hundred and thirteen pounds, thirteen shillings and eleven pence) with interest at i per cent, per annum from 3rd February 1937 to the date of this judgment (17th February 1939) with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e execution of any such decree, if it is shown to the satisfaction of the Court that the decree mils within any of the exceptions specified in Clause (a) to (f) of Section 13. 5. Section 13, Civil P. C, provides: A. foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the mine parties or between parties under whom they or lay of them claim litigating under the same title licept (b) where it has not been given on the merits if the case. 6. The defendants judgment-debtors say that the judgment given in England was not given upon the merits of the case in that the defendants were not present in Court when the matter was heard and adjudicated upon. They also allege that the matter was adjudicated upon without evidence being given by the plaintiff. It must be remembered that when an action is referred to an Official Referee of the Supreme Court in London for disposal under Section 89, Judicature Act of 1925, the Official Referee has, as far as the conduct of the case and the adjudication are concerned, the same powers as a Judge of the High Court. Now, it is clear in this case that the defendants were not present at the hearing; the Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... always say that the judgment was not on the merits of the case, even though the absence was due to his own fault. I cannot think that that is the position. The test as laid down by the Judicial Committee is to be found in 44 I.A. 6 (16) A.I.R. 1916 P.C. 121 : : 40 Mad. 112 : Keymer v. Visvanatham Reddi. There in an action in the King's Bench Division of the High Court of Justice in England to recover a liquidated amount, the defendant having failed to comply with an order to answer interrogatories his defence was struck out and judgment was entered for the amount claimed in accordance with the rules. The plaintiff subsequently sued the defendant in the High Court at Madras upon the judgment. It was held by the Privy Council that the judgment sued on was one which had not been given on the merits of the case within the meaning of Section 13(b), Civil P.C. Lord Buck-master giving the decision of the Board said at page 9 of the report: The whole question in the present appeal is whether, in the circumstances narrated, judgment was given on 5th May 1913, between the parties on the merits of the case. Now, if the merits of the case are examined, there would appear to be, first, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter. But the result of the Court's dealing with the matter was that the Court awarded that the plaintiff should recover a sum of 1313-13-11 with interest at 4 per cent, from the defendants in respect of the plaintiff's claim against the defendants. 10. It seems to me to be clear that the controversy raised in the action was the subject of direct adjudication by the Court. If the defendants were absent through some inadvertence or accident they could apply within eight days to have that judgment set aside. They did not do so. If they had any grounds for impugning the validity of that judgment they would have appealed to the Court of appeal in England. They did not do so. In my opinion, the defendants here have failed to show to the satisfaction of the Court, as was the burden on them, that this decree falls within exception (b) of Section 13, namely, that it has not been given on the merits of the case. No other matter arises for our de-termination. I am of the opinion, for these reasons, that this appeal must be allowed and the matter remitted to the District Judge for him to deal with the application according to law in the light of what we have said. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
