Narappa Naicken vs Govindaraja Naicken by Guardian Muthammal

Jackson, J.—The Appellant is seeking to execute in British India against a resident of British India a decree obtained in a Court of

Travancore. In these circumstances it is admitted that the decree is only executable if the Respondent submitted to the Travancore jurisdiction. It is

a question of fact. The Respondent never appeared at the trial of the suit in Travancore but it is argued that his submission may be inferred from the

fact that in the Court of execution he did not repudiate the decree, but took time to have it set aside, as being ex parte, in the Travancore Court

(with the result that the decree was affirmed). If, it is said, he submitted to the jurisdiction at the end of the transaction how can it be said he did not

submit to it at the beginning? The lower appellate Court and this Court have preferred to infer that he did not submit at the beginning, and his

subsequent action was due to ignorance of his rights and we are not prepared to say at this stage that this inference of fact is wrong. This disposes

of the appeal but as so often happens the argument has been more substantial than its matter and much case-law has been cited. The law is

correctly stated in Sheo Tahal Ram v. Binaik Shukul ILR (1931) All. 747. and Dicey as quoted fully in this case seems to be correctly understood

at page 753, only we should excise ""probably"" (two lines from bottom). To give jurisdiction and therefore validity to the decree there must be

submission before judgment is pronounced. Submission afterwards unless, as in our case, supporting an inference that there was submission

before, is only effective as creating a sort of estoppel such as that in Malhar Narayan Prabhu v. Vishnu Sonu Ganada (1924) 80 I.C. 754. There

the judgment-debtor took no objection to the execution, and allowed it to proceed to sale, and the Court held that to allow him subsequently to

protest would seem very strange either in law or in equity. But in our case the Respondent has all along opposed the execution. It is not very clear

what the learned Chief Justice means at the bottom of page 750 in Sheo Tahal Ram v. Binaik Shukul ILR (1931) All. 747. By adverse order he

may be thinking of an appellate decree such as there is in Guiard v. De Clermont and Donner [1914] 3 K.B. 145. A mere order, as in our case,

made by the foreign Court that the original decree stand can add nothing to its validity or in any way extend the jurisdiction of the Court with

regard to it. But an appellate decree which is the decree in the suit is quite another matter. Hari Singh v. Muhammad Said ILR (1926) Lah. 54. in

terms follows Guiard v. De Clermont and Donner [1914] 3 K.B. 145. (see page 92). It may be questionable whether the facts of these two cases

run altogether on all fours; but that is not a question which we need discuss. And, of course, an order after judgment has been passed is not the

same as an order before the suit. In Boissiere v. Brockner ILR (1931) All. 747. it was held that an appearance in the foreign Court before the suit

in order to protest .against its jurisdiction involves the Defendant in the necessity of submitting to its jurisdiction if the plea to the jurisdiction should

be disallowed. But appearance after the suit is decreed need not involve any such necessity. It is not as though after refusing to set aside the ex

parte decree the Court proceeded to pass a fresh decree.

The appeal is dismissed with costs.