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Judgment
Ramesam, J.—This appeal arises out of a suit on a foreign judgment. The Lower Court granted a decree. The defendants appeal. The
plaintiffs-respondents are members of the S. K. R. S. K. R. Firm. This Firm acting through their agent Nachiappa Chetti and another A. V. R. V.
Andappa Chetti filed a suit in the Court of the District. Judge of Colombo, No. 46088. When the case came on for trial, both the parties filed a
joint application to the effect that the trial of the case be postponed for three months with a view to settlement and that if not settled, judgment be
entered for plaintiffs as prayed for with costs less Rs. 50 and that the property mortgaged with the plaintiffs be sold by Messrs. A V. Daniel &
Sons, Licensed Auctioneers forthwith. This was on the 16th March, 1917. The case accordingly stood over for the 18th June. On that day the
case was called on again and the District Judge passed this order:
Case called. Mr. Somasundaram for plaintiff states that the case has not been settled. The defendant and his proctor arc absent. Enter decree in
terms of the order of 16th March, 1917.
The present plaintiffs also obtained an assignment of the share in the Ceylon decree belonging to the 2nd plaintiff therein and now sue to recover
the whole of the amount of that decree.
Two objections are taken now by the learned Advocate for the appellants. The first objection is that the judgment of the Court of Ceylon is not
conclusive because it has not been given on the merits of the case. Vide Section 13 (b) of the Civil Procedure Code. He relied on the following
decisions : Mahomed Kassim & Co. v. Seeni Pakir Bin Ahmed I.L.R.(1926) M. 261 : 52 M.L.J. 240 (F.B.), (1916) L.R. 44 I.A. 6 (Privy
Council) and A. N. Abdul Rahiman v. I. M. Mahomed Ali Rowther I.L.R.(1928) Rang. 552 In the first of these cases, the Penang Court passed a
judgment against the defendant as he did not appear, according to the procedure of that Court. It was held that that judgment is not conclusive in
British Indian Courts. The same view was taken in A. N. Abdul Rahiman v. I.M. Mahomed Ali Rowther I.L.R.(1928) Rang. 552 where it appears
that there is a similar procedure according to an ordinance of Singapore similar to the ordinance in Penang. In (1916) L.R. 44 I.A. 6 (Privy
Council) the former judgment was that of an English Court and the judgment was given on the ground of defendant''s refusal to answer certain
interrogatories and there was no trial. It was held by the Privy Council that the first judgment is not a bar. But all these cases are distinguishable
from the present'' case. In the present case, the defendants appeared. They filed their written statement and raised their plea and an issue was
framed according to the plea. They had to prove that they made certain payments of interest. When the case came on for trial, they along with the
plaintiffs filed a joint petition to the effect mentioned above. This is not therefore a case of non-appearance nor a case of a decree being passed on
account of failure to comply with a provision of law. The defendants appeared and deliberately chose not to insist on their plea and not to adduce
evidence of it. Mr. Rangachariar relied on Spencer Bower on ""Res Judicata,"" p. 25 where it is observed that a decision cannot be called a ""judicial
decision"" which does not purport to embody any consent to an existing judgment, but merely records an undertaking by a party to allow judgment
to be signed if at a future date he fails to comply with certain conditions. Now as already observed this is not a case of failing to comply with
certain conditions. The case in Bradshaw v. M. Mullan (1920) 2 Ir. Rep. 412 is also relied on. This decision is really against the appellants.
Towards the end of page 424 Lord Shaw of Dunfermline observes:
It is, I am aware, possible to maintain that a judgment by consent has the qualities of a indicium to which I have referred. There are expressions of
opinion in some of the numerous English cases upon the subject. It seems to me that such a doctrine may he founded, not upon the judgment
pronounced, hut upon the consent with all its limits and to all its extent which preceded the judgment; that, in short, you have there left the region of
strict res judicata and entered the region of a possible wide estoppel.
It does not matter what the principle of recognising a foreign judgment is, whether it is called res judicata or estoppel, but that consent will do as
estoppel is clear from the judgment of Lord Shaw. We are therefore of opinion there is no substance in the first point.
The second point argued is that the assignment of the decree by the 2nd plaintiff in the Ceylon Court ought not to be recognised in this Court
because u/s 339 of the Ceylon Ordinance that Court had not recognised the assignment and substituted the name of the assignee in the place of the
assignor. The short reply to this argument is that the Ceylon Ordinance does not bind us and we have nothing to do with it. The judgment of a
foreign Court creates a debt like any other judgment and a debt is prima facie assignable. It merely embodies the obligation of the defendants.
There is nothing to prevent us from recognising the assignment. It is said that there is danger of the assignor executing the decree while the decree
of this Court is in force. Mr. Varadachariar, the learned Advocate for the respondents, has offered to indemnify the appellants from any injury
caused to them by any execution taken of the Ceylon decree by the assignor. It is enough to record this undertaking in this judgment and it is
unnecessary to do anything more.
In the result, both the points fail and the appeal is dismissed with costs.