B.N. Krishnaswami Chetty vs Madhappa Chettiar and Another

Srinivasa Aiyangar, J.—This Civil Revision Petition arises, in connection with the execution by the Small Causes Court at Kumbakonam, of

a decree obtained by the respondents herein against the petitioner in a small cause suit in the Subordinate Judge''s Court at Bangalore, a Foreign

Court, within the territories of His Highness the Maharajah of Mysore. Execution would appear to have been ordered by the Small Cause Court at

Kumbakonam, even without any notice to the judgment-debtor and without any opportunity being afforded to him, to show cause why the decree

should not be executed. When foreign decrees are sought to be executed in British Indian Courts, I consider that as an invariable rule, notice ought

to be issued by the executing Court to the judgment-debtor to appear and state his objections, if any, and execution should be ordered, if deemed

proper, only thereafter. In this case, however, when the judgment-debtor found that execution had been ordered by the Court, he paid up into

Court the amount of the decree and filed objections setting out the various grounds, on which he contended that the Court had no jurisdiction to

issue execution of the decree. It is only necessary for me to state that among other objections, taken by the judgment-debtor, were that the

Bmgalore Court was not a Court of competent jurisdiction, within the meaning of Section 13 of the CPC and that the decision of that Court was

not a judgment on the merits. The Small Cause Judge of Kumbakonam brushed aside these objections and refused even to consider them

observing that the judgment-debtor was not entitled to plead in execution that the decree was passed without jurisdiction. He relied for his view on

the Full Bench decision in Zamindar of Ettiyapuram v. Chidambaram Chetty [1920] 43 Mad. 675. That decision had obviously no bearing on the

present case, because that was a case of objection being taken in execution proceeding, with regard to a decree, passed by a Court in British India

and a case, therefore, to which the provisions of Section 21, Civil Procedure Code, directly applied. The learned vakil for the respondents in this

petition admitted fairly that the Full Bench decision, relied upon by the Small Cause Judge, at Kumbakonam, was not relevant. The rules

applicable, with regard to decrees, passed by domestic tribunals are different to those applicable to judgments of foreign tribunals. Section 21 of

the CPC is in the part of the Code entitled ""place of suing"" and the legislature having in Sections 15 to 20 of the Civil Procedure Code, set oat

various rules, with regard to the Court, in which the intended suit should be instituted, has proceeded in Section 21, to indicate the stage at which

the defendant may object to the jurisdiction of the Court as determined, I take it, by the preceding sections. In any case, Section 21, Civil

Procedure Code, cannot be construed, as either legislating for foreign tribunals, or codifying any rules of international law. It, therefore, follows that

neither decision relied upon by the learned Judge in the Court below, nor the section of the Code, on which that decision was based, has any

application to cases of foreign judgments sought, under the provisions of Section 44, Civil Procedure Code, and on the strength of the notification

in the Gazette of India by the Governor-General in Council, referred to in that section, to be executed in British Indian Courts. A contention may

no doubt, be raised that the provision in Section 44, Civil Procedure Code, to the effect that on such notification, the decrees may be executed in

British India, as if they had been passed by the Courts of British India, places, such decrees in the same position, as they would have been in, had

they been passed by Courts in British India, not only for the mode of execution, but for all purposes whatsoever, including the attraction to such

decrees of all the characteristics of the decrees passed, as a matter of fact by British Indian Courts, including the conditions and immunities referred

to, in Section 21 of the Code. It seems to me that the words in the last part of Section 44 ""may be executed"" in British India as if they had been

passed by the Courts of British India"" could, having regard to the collocation of the words and the context, have reference only to the mode of

execution. If it was intended that such decrees should for all purposes whatsoever be placed in the same position, as decrees of British Indian

Courts language of a different kind, at any rate, much dearer language, would and should have been used. If the legislature bad said that on such

notification, such decrees shall be deemed to be decrees passed by Courts of British India and be executed as such, or that all the provisions of the

Code, relating to execution of decrees, shall apply to such decrees, it might be difficult to contend that Section 21 of the Code would cot apply to

such decrees. There would obviously be several other complications and difficulties, if the contention should be upheld, that for all purposes

whatsoever such decrees should be regarded, as decrees passed by British Indian Courts, supposing that under some substantive law, or the law

of limitation of the foreign state concerned, such a decree should become incapable of execution, could it even then be contended that in spite of

the decree having become incapable of execution by the law of the tribunal that passed it, it is still capable of execution, because it is required to be

executed, as if it had been passed by a Court of British India. In any case, the expression ""may be executed"" in Section 44, Civil Procedure Code,

has been construed, as giving a discretion to the Court, to which application is made for executing a decree, to refuse to execute it. The discretion,

of course, should not be capriciously exercised. It has been suggested that the discretion indicated in the word ""may"" was, with special reference to

Sections 13 and 14, Civil Procedure Code. I doubt whether it is proper to delimit a general discretion given in Section 44 in that manner. There is

also no necessity for supposing that cases may not arise, where in the exercise of proper discretion, Courts of law in British India may properly

refuse execution of such decrees, even apart from the exceptions enumerated in Section 13, Civil Procedure Cede. It may, however, be that in

practice no case may arise, where the grounds on which the Court may consider it proper to refuse execution, in the exercise of its discretion, are

not included in one or the other of the very general exceptions, engrafted in Section 13, Civil Procedure Code. It has also been stated that the

provisions of Section 44, Civil Procedure Code, should be read, subject to the provisions of Section 13, Civil Procedure Code. While I agree that

both sections should be read together, it ought not to be forgotten that Section 13 merely lays down a rule of res judicata and has nothing to do

whatever, with the manner in which the rule of res judicata should be enforced. Further, Section 13, Civil Procedure Code, in my opinion, merely

codifies the rules of international law, with regard to foreign judgments. Unless, therefore, under its provisions, a decree that is produced for

execution is conclusive, as to the matter directly thereby adjudicated, it follows that it cannot and ought ret to be executed. The judgment-debtor,

therefore in such cases, is permitted by the very provisions of Section 13, to show how or why it is not conclusive, by showing that the case falls

under ore of the exceptions enumerated. The Full Bench decision of this Court, in the case of Veeraraghaia Ayyar v. Muga Sait [1915] 39 Mad.

24 is clear and conclusive authority, in favour of this view. In the case of Jirappa Timmappa v. Jeergi Murgeappa Veerabhadrappa [1916] 40

Bom. 551 the learned Judges held that a decree in a personal action, passed by a Mysore Court, against a defendant in absentem was a nullity and

could not be executed by a British Court. For these reasons, I have no hesitation in holding that the decision of the learned Judge of the Small

Causes Court, to the effect, that it was not open to the judgment-debtor to raise objections to the decree, sought to be executed, was wrong. As

regards the merits of the objections raised, the learned vakil for the petitioner has argued that on two grounds the judgment of the Court at

Bangalore fell within the exceptions, enumerated in Section 13, CPC and that therefore the decree should not be executed. The two grounds were

firstly that the Bangalore Court was not a Court of competent jurisdiction, within the meaning of Section 13, Civil Procedure Code; and secondly,

that the decision was not one on the merits. I have my doubts, as to the latter ground. But there are no materials before me, on which I can now

say, whether or not the judgment of the Bangalore Court was on the merits. Unless the judgment was given merely on default and in any case in

which, in spite of the default, any evidence is taken for the plaintiff, and judgment is given thereon, it may be difficult to say, that it was not a

decision on the merits. However that may be, the objection having been taken, the Small Cause Judge was bound to consider the same and give

his decision thereon.

As regards the other objection, that the Bangalore Court was not a Court of competent jurisdiction, it has been attempted to be argued, by the

learned vakil for the respondents, that as a matter of fact the conduct of the petitioner with regard to the suits was such that he must be deemed to

have submitted himself to the jurisdiction of the Court and that therefore the Bangalore Court was in fact a Court of competent jurisdiction. The

question whether a Court is a Court of competent jurisdiction should be determined, not by the rules laid down, in respect of jurisdiction for

domestic tribunals, but by rules of international law, as stated by their Lordships of the Privy Council Jin the Gurdyal Singh v. Raja of Faridkot

(1894) 22 Cal. 222. But for the purpose of determining whether the Bangalore Court was a Court of competent jurisdiction, within-the meaning of

that expression, in Section 13, Civil Procedure Code, the question of fact has to be decided, whether the defendant hid, as alleged now before me

by the respondents, submitted himself to the jurisdiction of the Court; for, there is no doubt that under the rules of international law, personal

submission to the jurisdiction of a foreign Court gives that Court jurisdiction. It will be for the lower Court to consider whether the objections of the

petitioner, with regard to the decree, are or are not well founded and for this purpose, the Court will be bound to consider the allegations of both

parties and any evidence and arguments that may be adduced by them.

The order of the lower Court will therefore be set aside and the execution petition, E.P. No. 2230 of 1922 will be restored to the file and the

objections thereto by the judgment-debtor will be considered and be disposed of by the Small Cause Court, at Kumbakonam, according to law.

The respondents will pay the petitioner his costs in this Civil Revision Petition.