Rama Ayyar (died) and Another vs Krishna Patter

Phillips, J.—The facts of the case are set out in my learned brother''s judgment. The only question for consideration is whether the

respondent voluntarily submitted to the jurisdiction of the Cochin Court, which passed the decree which it is how sought to execute. The

respondent appeared and defended the suit against him in the Cochin Court, but he protested against the jurisdiction of the Court. He renewed his

protest in the Appellate Court, and has now taken the same objection in execution of the decree. His reasons for appearing and defending the suit

were, as found by the learned District Judge: (1) that his creditor''s son to whom he had repaid the suit debt refused to refund him the money unless

he defended the suit brought by the father and (2) that if a decree were passed against him he might be arrested when he went to Cochin on

business or to see his relations. In Parry & Co. v. Appasami Pillai (1880) 2 Mad. 407, the reason for the defendants'' submission to a foreign

tribunal as given in the judgment (page 412) is "" to escape the inconveniences which would attend a judgment against them, if at any time they or

their property might be found in French territory."" That case is therefore on all fours with the present case and if that ruling is to be followed this

appeal would have to be dismissed. The authority of the ruling has, however, been recently doubted by the learned Chief Justice and Seseugiri

Ayyar, J., in Veeraraghava Aiyar v. Muga Sait (1916) 39 Mad. 24 in consequence of the decision in Boissiere & Co. v. Brockner & Co. ILR

(1889) 85. There are also other English decisions which are opposed to the ruling in Parry & Co. v. Appasami Pillai (1880) 2 Mad. 407,

Boissiere & Co. v. Brockner & Co. ILR (1889) 85, Voinet v. Barrett (1885) 55 L.J. Q.B. 39, Rousillon v. Rousillon (1880) 14 Ch.D. 351 and

Decosse Brissac v. Rathbone (1870) 30 L.J. Ex. 238. In a very recent case Harris v. Taylor (1915) 2 K.B. 580, where a defendant put in an

appearance conditionally and applied to the Court to set aside the order for service out of the jurisdiction but did not even defend the action, it was

held that the defendant hid voluntarily submitted to the jurisdiction because I he had sought the protection of the Court. The principle that P] is

apparently applied in these English cases is that when a defendant submits to jurisdiction, except under duress, he is bound by the decision of the

Court, because he has elected to take the chance of a decision in his favour and cannot be allowed to demur to a decision against him. A mere

protest against jurisdiction does not make his submission involuntary. The ruling in Parry & Co. v. Appasami Pillai ILR (1880) Mad. 407, is the

concurrent decision of three Judges and proceeds on the grounds that a defendant having protested against jurisdiction puts the plaintiff on his

guard and does not lead him to believe that the proceedings will be allowed to be everywhere effectual. This point of view is quite different from

that adopted by the English Courts, and in a question like this, which is one of international law, Indian Courts must be guided by the decisions of

English Courts. The law however as laid down in Parry & Co. v. Appasami Pillai (1880) 2 Mad. 407 has been the law in this Presidency, where

the circumstances are not the same as in England, for over thirty-five years and has not been altered notwithstanding the decision in Voinet v.

Barrett (1885) 55 L.J.Q.B. 39. On the principle of stare decisis I am not prepared to dissent, unless and until that decision is overruled by a

considered decision of a Full Bench. I therefore agree to refer to a Full Bench the questions proposed.

T. R. Krishnaswami Ayyar for the appellant.--The defendant put in a written statement objecting to jurisdiction and also pleaded on the merits.

This amounts to submission. The recent decision in Harris v. Taylor (1915) 2 K.B. 580 is in my favour.

John Wallis, C.J.

[We will hear the other side.]

The Honourable Mr. L.A. Govindaraghava Ayyar and T.K. Govinda Ayyar for the respondents.

The case against me is Boissiere & Co. v. Brookner & Co. ILR (1889) 85.

John Wallis, C.J.

[But it is approved in Harris v. Taylor (1915) 2 K.B. 580.]

Harris v. Taylor (1915) 2 K.B. 580 can be distinguished. There is a distinction between a case in which a person says that he is not going to

submit to the Court''s jurisdiction whether the Court has jurisdiction over him or not and whatever be the law applicable and a case in which a

person says that by the Municipal law the Court has no jurisdiction and yet he will submit to it. (See page 585.) The decision in Harris v. Taylor

(1915) 2 K.B. 580 must be taken with reference to the facts. No other English case goes so far as Boissiere & Co. v. Broekner & Co. ILR

(1889) 85.

A person has two courses open: (1) to plead altogether against the jurisdiction; (2) to submit and say that the Municipal law has no jurisdiction.

Guiard v. De Clermont and Donner (1914) 3 K.B. 145 can be distinguished. In The Vivar (1876) 2 P.D. 29 there was appearance under protest.

In Voinet v. Barrett (1885) 55 L.J.Q.B. 39, there was no protest but there was appearance. The decision in Boissiere & Co. v. Brockner & Co.

ILR (1889) 85 is questioned by Mr. Dicey in his Conflict of Laws.

John Wallis, C.J.

[Mr. Dicey''s view was brought to the notice-of their Lordships in Harris v. Taylor (1915) 2 K.B. 580.]

Your Lordships will have to go to this extent, viz., whether there was protest or no protest, the moment a person appears he submits himself to

the jurisdiction.

John Wallis, C.J.

[Protest does not matter, appearance is what is material.]

Further the circumstances ought also to be taken notice of. There are many states in this country. Refers to Veeraraghava Aiyar v. Muga Sait

(1916) 39 Mad. 24, Narayana Moothad v. The Cochin Circar (1915) 39 Mad. 661 and Sohibsby v. Westenholz (1870) L.R. 6 Q.B. 155.

T. R. Krishnaswami Ayyar for the appellant was not called upon in reply.

This Appeal against Appellate Order coming on for hearing in pursuance of the above ORDER OP REFERENCE, the following OPINION

of the Court was delivered by

John Wallis, C.J.

We think that Parry & Co. v. Appasami Pillai (1880) 2 Mad. 407 must be overruled. No authorities are cited in the judgment of the Appellate

Court, but the learned Judge who decided the case on the original side referred on the point to The General Steam Navigation Company v. Guillou

(1843) 11 M. & W. 877and to Schibsby v. Westenholz (1870) L.R. 6 Q.B. 155. The dicta in The General Steam Navigation Company v. Guillou

(1843) 11 M. & W. 877, on which the learned Judge relied, were questioned in Schibsby v. Westenhalz (1870) L.R. 6 Q.B. 155 which is rather

against the view taken by him as in that case the question on which the Court of Quean''s Bench decided to express no opinion was ""as to the

effect of the appearance of the defendant, where it is so far not voluntary that he only comes in to try and save some property in the hands of the

foreign tribunal"" rather implying that at any rate where there was no property in the hands of the foreign tribunal appearance there would amount to

submission. The later English Cases referred to in the Order of Reference and in Veeraraghava Aiyar v. Muga Seit (1916) 39 Mad. 24, including

the recent decision of the Court of Appeal in Harris v. Taylor (1915) 2 K.B. 580, as also Harchand Panaji v. Gulabchand Kanji ILR (1914) 39

Bom. 34, are clearly opposed to Parry & Co. v. Appasami Pillai ILR (1880) Mad. 407, which must be overruled. That is sufficient to dispose of

the reference, as the facts of the present case are identical.