C V KUNHIMAN Vs. P M K IDROSEKUTTY

JUDGEMENT

(1.) This appeal is by the defendant in a suit on a foreign judgment which has been allowed by the court below.

(2.) The plaintiff and the defendant both hail from Ponnani Taluk in Palghat District. For some time they were doing certain joint business in Colombo and in settlement of accounts in connection therewith and for other moneys borrowed, the defendant executed in favour of the plaintiff a promissory note dated 31-10-1947 for a sum of Rs. 3823 and odd with provision for interest at 18 per cent. On foot of this promissory note, the plaintiff filed suit and obtained ex parte judgment in the District Court of Colombo in Action No. 9321/S on 11-6-1948. The plaintiff then filed suit OS 24 of 1948 before the Court of the Subordinate Judge at Ottapalam, vide Ext. B1 plaint, for enforcement of the ex parte judgment or alternatively, for the realisation of the pro-debt but subsequently allowed it to be dismissed, because the ex parte judgment was set aside and the Action restored back to the file by the Colombo Court at the instance of the defendant. In the contest which the defendant raised in the Action, he questioned his liability to the extent claimed or to any extent but the Trial Court ultimately passed decree against him in terms of the plaint on 24-3-1950-vide Ext. A1 Judgment. The defendant subsequently appealed to the Supreme Court of the Island of Ceylon but that court dismissed the appeal on 31-8-1951. It was based upon this judgment Ext. A1 of the Colombo District Court as confirmed by the Supreme Court, that the suit herein was filed on 17-1-1952. The plaint claim comprised the amount due at the time of the decree in the Colombo District Court inclusive of interest at the contract rate, and the costs decreed in the Action with future interest at 5 per cent on both these amounts totalling in all Rs. 7069-15-9. The plaintiff claimed decree for this amount with interest from date of plaint till realisation. The suit was resisted by the defendant on various grounds. We are concerned however with only two of his contentions, which were overruled by the court below, viz. (1) that because the prior suit OS 24 of 1948 before this court had been based not alone on the ex parte foreign judgment then existing but also on the promissory note, though in the alternative and that suit had been dismissed, the plaintiff was not entitled to any more relief against the defendant, whether on foot of the promissory note or of the later judgment, (2) the defendant being admittedly an agriculturist was entitled to relief by way of scaling down under the Madras Agriculturists' Relief Act, 1938. The court below, in the result, allowed the suit except to the small extent of the claim for future interest on the costs under the foreign decree. Hence this appeal by the defendant The plaintiff, it may be added, has acquiesced in the decree as passed.

(3.) The only two questions that arise for consideration in this appeal are therefore firstly whether the dismissal of the prior suit OS 24 of 1948 precludes the grant of any relief in this suit to the plaintiff, and secondly whether the defendant was wrongly refused relief under the Madras Agriculturists' Relief Act. The first question need not detain us long. For the judgment disposing of OS 24 of 1948 has not been produced in the case and we cannot be sure whether the dismissal was on any ground further thin the setting aside of the ex parte decree in Action No. 9321/S by the Colombo District Court. Even otherwise, we are here not concerned with a relief based on the promissory note which had been once before put in suit in the local court and which had' been disallowed but rather with the enforcement of a foreign judgment granting such relief, after contest. The plea that the dismissal of OS 24 of 1948 stood as a bar against the plaintiff, should if all, have been raised in the Colombo District Court during trial after the Action No. 9321/S was restored back to the file or in the appeal before the Supreme Court of Ceylon. But that was not done. It is no doubt true that a foreign judgment does not preclude fresh suit in the local jurisdiction on foot of the original obligation apart from enforcing the judgment itself by way of suit. But that is the option of the plaintiff and so long as the present suit is only based upon the foreign judgment, the question of the availability of a separate cause of action under the promissory note does not arise. We therefore repel the first contention.