Narappa Naicken vs Govindaraja Naicken by guardian Muthammal

Curgenven, J.—The appellant holds a money decree passed ex parte against the respondent by the Court of the District Munsif of Quilon. It

was transferred to the Court of the District Munsif of Tiruppur for execution and the judgment-debtor was arrested. An application by him for his

release on security for the purpose of getting the decree set aside was granted and he thereupon applied to the Quilon Court to set aside the ex

parte decree. In that application the Quilon Court ordered an interim stay but eventually dismissed it for default and intimated to the Tiruppur Court

that it might proceed with the execution. Thereupon the judgment-debtor filed an application to set aside the order of arrest and dismiss the

execution petition on the grounds that the foreign Court had no jurisdiction to pass the decree against him and that he had not submitted to it. The

District Munsif dismissed the application on the ground that although the decree, being passed without jurisdiction, was a nullity, yet the judgment-

debtor by applying to have it set aside had made a voluntary submission to the Court. The learned District Judge has differed from the District

Munsif on this latter point, holding that in the circumstances of the case the judgment-debtor must be held to have acted under compulsion.

The first point that arises for consideration in my view is whether a decree passed without jurisdiction can be validated by submission, not in the

suit itself and before the decree was, passed, but after the decree had come into existence. It is contended that if the decree at the time when it was

passed was a nullity, no subsequent action on the part of the judgment-debtor can have validated it. This point has been considered by the learned

District Judge, who has followed a ruling in Hari Singh v. Muhammad Said ILR (1926) 8 Lah. 54. That too was a case where, after the decree

had been passed ex parte, the defendants applied to have it set aside. The passage in the judgment relating to this point is to be found at page 92.

The learned Judges recognise that proceedings to set aside an ex parte decree cannot be said to be proceedings in the suit, the argument having

been addressed to them that the submission to jurisdiction must be in the suit, but they think that when the defendants applied to have the ex parte

decree set aside they must be held to have been ready to accept the decisions of the Courts of that foreign territory, provided always that they

were not opposed to natural justice, etc. They themselves think that this is a curious result but that it seems to follow from the decisions upon the

point. The only decision actually cited is Guiard v. De Clermont and Donner (1914) 3 K.B.D. 145 and I have not been able to discover that it

affords any authority for this view. The case related to an action brought in the Tribunal of Commerce of the Seine, in France. The defendants who

were in England declined to appear or to take any part in the proceedings and in the ordinary course judgment by default was passed by that

Court. The plaintiff upon this obtained what was equivalent to an attachment order of money at the credit of the defendants in a French Bank,

whereupon the defendants applied to the Tribunal of Commerce to have the default judgment set aside, and the Court actually did set it aside. The

plaintiffs however appealed and obtained judgment in their favour. That appeal judgment was what was sued upon in England, and, as Lawrence,

J., points out on page 155, it is clear that it was a judgment to which the defendants were parties and in which they took the chance of obtaining a

decision in their favour. This case does not seem therefore to afford support to the proposition that a judgment passed without jurisdiction can by

subsequent submission to the Court become executable in British India. The learned Judges who decided Sheo Tahal Ram Vs. Binaek Shukul

seem to have been inclined to take the same view. They extract from Dicey''s ""Conflict of Laws"" rules regarding jurisdiction in actions in personam.

So far as it relates to this topic the rule is as follows:

Where the party objecting to the jurisdiction of the Courts of such country has, by his own conduct, submitted to such jurisdiction, i.e., has

precluded himself from objecting thereto: (a) by appearing as plaintiff in the action, or (b) by voluntarily appearing as defendant in such action

without protest, or (c) by having expressly or implicitly contracted to submit to the jurisdiction of such Court.

As Sulaiman, Ag. C J., remarks, it would seem that the submission to the jurisdiction must be to the foreign Court itself and probably before the

judgment is pronounced; for if there was no such submission the judgment is a nullity. In the present case the alleged submission took place not

only after the judgment was pronounced but after the execution petition had been filed and to some extent acted upon. If the decree was, at the

time when it was passed, an absolute nullity, I do not think it can seriously be contended that it can have been subsequently and retrospectively

clothed with jurisdiction by any such action as the judgment-debtor took in this case. Mr. T. M. Krishnaswami Aiyar has attempted to argue that it

was not an absolute nullity in the sense that it nowhere had any validity; for it was a good enough decree within the Travancore State. I do not think

that that circumstance makes any difference to the view which should be taken of it in British India. I may quote Lord Selborne who, delivering the

judgment of the Privy Council in (1895) ILR 22 222 (Privy Council) said:

In a personal action...a decree pronounced in absentem 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 regarded as a mere 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.

I would accordingly hold that the decree in this case continues to be a nullity and therefore inexecutable in British India.

On the further point, whether, if the judgment-debtor''s action amounted to a submission, that submission was voluntary,. I am inclined to agree

with the conclusion of the learned District Judge. I do not find much of assistance in the case-law upon this point. It has been held that submission

is not voluntary if the appearance is made only to save property which is in the hands of a foreign tribunal (see Veeraraghava Ayyar v. Muga Sait

ILR (1914) 39 Mad. 24 : 27 M.L.J. 535 which follows the English case of Voinet v. Barrett (1885) 55 L.J.Q.B.D. 39. It does not necessarily

follow perhaps that where in pursuance of such a decree execution is taken in British India and some constraint imposed upon the judgment-debtor

there the submission cannot be voluntary. Gut if to a ''voluntary act'' is attached the ordinary meaning of an act done of a man''s own free will and

without constraint, it is difficult to bring the respondent''s action in resorting to the Quilon Court into this category. It may be true that he could have

taken the alternative course of pleading that the decree was without jurisdiction, but if, as we must suppose, he was ignorant that this course was

open to him, such ignorance does not, in my view, make his recourse to the Quilon Court any the more voluntary. He must have supposed that the

only alternative to undergoing a term of imprisonment was to challenge the decree as he did, and since he acted under pressure of this prospect, I

cannot hold that his appearance before the Quilon Court was in the nature of voluntary submission.

I accordingly agree with the lower appellate Court and dismiss this second appeal with costs.