Sivaraman Chetti vs Iburam Saheb

Appellant sued the respondent in the District Munsif''s Court at Negapatain for the recovery of Rs. 1,031-13-10 as due to him from respondent

under a decree obtained by appellant in the French Court at Karikal. The District Munsif gave appellant a decree for the whole amount, but on the

defendant''s appeal the Subordinate Judge modified the decree by disallowing the present appellant''s claim to a sum of Rs. 700, which had been

awarded as damages.

Hence the present appeal with regard to this sum of Rs. 700, while respondent has objected u/s 561 to the rest of the decree on the ground that

the decree of Karikal Court was a nullity in consequence of its being passed against one who was a British subject over whom the French Court

had no jurisdiction.

First, as to the appeal, there can be no doubt that the Subordinate Judge was right in disallowing the Rs. 700 claimed as damages, which were

altogether prospective at the time when the suit was instituted in the Karikal Court and as to which no evidence was adduced as to their having

been actually incurred. The appeal must, therefore, be dismissed with costs in any case.

The objection filed by respondent questions the validity of the entire decree as passed without jurisdiction against a foreigner, non-resident in

French territory.

As observed in the recent judgment of the Privy Council in Gurdyal Singh v. Rajah of Faridkote L.R. 21 IndAp 171 : ILR 22 Cal. 222

Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory, while they

are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always

as to land within the territory and it may be exercised over moveables within the territory; and, in questions of scatus or succession governed by

domicil, it may exist as to persons domiciled, or who, when living, were domiciled within the territory.... No territorial legislation can give

jurisdiction which any foreign Court ought to recognize against foreigners, who owe no allegiance or obedience to the power which so legislates.

Consequently, ""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.

The question for consideration in the present case is, therefore, did the defendant submit himself to the jurisdiction of the French Courts? It

appears that he employed a vakil to defend the suit in the Court of First Instance, but on the case coming on for hearing the vakil stated he had no

instructions, and consequently a decree was passed as prayed for by plaintiff, apparently without any evidence being taken. Subsequently,

defendant applied to the French Courts to have the ex parte decree set aside and a decree to be given on the merits. This application appears to

have been acceded to, but on the case coming on for hearing, the order so passed in defendant''s favour was set aside on the ground that the

application was barred as not having been made within eight days ""of the notice of the decision.

The result is that the defendant had no hearing in the French Courts and the mere fact of his having employed a vakil is not sufficient to justify

our holding that the decree was not passed in absentem.

Had defendant been allowed a hearing arid the case then decided against him, we should have held following Kandoth Mammi v.

AbduKalandan 8 M.H. C.R. 14 and Fazal Shau Khan v. Gafar Khan ILR 15 Mad. 82 that having taken the chance of a judgment in his favour, he

could not now, when an action is brought against him on the judgment, take exception to the jurisdiction; but on the facts of the present case we

find that the defendant is not precluded from pleading want of jurisdiction in the French Court which passed the decree.

Allowing this objection of the respondent, we direct, in supersession of the decree of both the Courts below, that plaintiff''s suit be dismissed

and that he do pay defendant''s (respondent''s) costs throughout including the costs both of the appeal to this Court and of the objections filed u/s

561 of the Code.