M K SIVAGAMINATHA PILLAI Vs. NATARAJA PILLAI

JUDGEMENT

(1.) The plaintiff (appellant herein) filed a suit before the Subordinate Judge of Tirunelveli for recovery of Rs. 12,537-11-11 based upon a foreign judgment obtained by the plaintiff in the District Court, Colombo. The plaintiff and his mother Kuppammal were trading as partners under the name and style of "M.K. Sivagaminathan" in Princess Street, Bombay. Defendants 1 and 2 were carrying on business in partnership in Colombo under the name and style of "Jayalakshmi and Co." Defendants 1 and 2 borrowed from the plaintiff several sums under hundis drawn on the defendants and made, payable thirty days after sight to the order of the Indian Overseas Bank Ltd, Colombo. Defendants 1 and 2 accepted to pay the amount due under those hundis but failed to pay when they were presented to them on the due dates.

(2.) The plaintiff and his mother filed a suit No. 15437/S on 7-10-1953 in the District Court at Colombo for recovery of Rs. 10,671-35 cents. Summonses were issued to defendants 1 and 2 and they accepted the summons. Defendants 1 and 2 filed proxy through their Proctor and moved for the grant of leave to appear and defend the action unconditionally. The additional District Judge, Colombo passed an order on 8-12-1953 holding that the defendants were prima facie liable in respect of the bills and observed that he was not satisfied with the bona fides of the defence raised by the first defendant. The Court ordered the first defendant to give security in the sum of Rs. 7000 as a condition of filing aaswer and granted time for security and answer till 21st December 1953. It may be noted that though the second defendant received the summons be remained ex parte. The first defendant failed to furnish security on the due date and on the application of the plaintiff judgment was entered in favour of the plaintiff on 21st December 1953. On 2nd February 1954, the first defendant applied for stay of execution proceedings and submitted that on the 17th December he had filed a petition of appeal against the order directing him to give security as a condition for filing answer. The learned Additional District Judge of Colombo directed execution to be stayed on the first defendant furnishing security for Rs. 7000 and granted time till 27th February 1954. The first defendant did not furnish any security. The first defendant filed an appeal to the Supreme Court of Colombo and the Supreme Court by an order dated 7th October 1954 dismissed the appeal. The plaintiff applied for execution of the decree but could not realise the amount from the defendants.

(3.) The plaintiff filed the present suit before the Subordinate Judge, Tirunelveli, based on the judgment of the District Court, Colombo. The defendants raised various contentions and resisted the suit. The learned Subordinate Judge dismissed the suit. The lower Court found that the plaintiff has not proved that the judgment of the Colombo Court in S. No. 15437/S, dated 21st December 1953 is conclusive on the matter arising for adjudication between the parties.