MOHAMMED ABDULLA Vs. P M ABDUL RAHIM

JUDGEMENT

(1.) This revision raises a very interesting point with regard to the executability of a decree passed by a foreign Court. The decree in question is one passed by the Sessions Judge at Kuala Lampur in the State of Federal Territory, Malaysia, in Civil Action No. 1935 of 1981 on 5-12-1981. The petitioner in this revision is the judgment-debtor and the respondent is the decree-holder. The judgment-debtor opposed the execution of the decree referred to above before the District Judge of East Thanjavur at Nagapattinam, where execution was levied, pleading that the decree is not conclusive and it will come within the exceptions under S.13, sub-cls.(a), (b), (d) and (e) of the C.P.C., hereinafter referred to as the Code. The Court below has not accepted the contentions of the judgment-debtor and has directed the execution to be proceeded with. This revision is directed against the orders of the Court below.

(2.) Mr. P. Shanmugam, learned counsel for the judgment-debtor, would put forth his contentions under the following heads and I will deal with them one by one. Firstly, it is contended that the foreign judgment is one not pronounced by a Court of competent jurisdiction and hence, it will come within the mischief of S.13(a) of the Code. As to when foreign Courts could derive jurisdiction in regard to suits of a personal nature has been recapitulated by a Bench of this Court, consisting of Sankaran Nair and Napier, JJ., in Ramanathan Chettiar v. Kalimuthu Pillai, ILR 37 Mad 163. The Bench recounted the ratio of Fry, L. J., in Rousillon v. Rousillon, (1880) 14 Ch D 351. That has been reiterated practically six years later by another Bench of this Court, consisting of Ramamurti and Krishnaswamy Reddy, JJ., in R. M. V. V. Achi v. R. M. A. R. Chettiar, ILR 1972 Mad 423. The Supreme Court in Moloji Nar Singh Rao v. Shankar Saran, AIR 1962 SC 1737 has also countenanced the same ingredients as conferring jurisdiction on a foreign Court in respect of action in personam. As per the above pronouncements, the following circumstances would give jurisdiction to foreign Courts : (1) Where the person is a subject of the foreign country in which the judgment has been obtained; (2) Where he was a resident in the foreign country when the action was commenced and the summons was served on him; (3) Where the person in the character of plaintiff selects the foreign Court as the forum for taking action in which forum he is sued later; (4) where the party on summons voluntarily appeared; and (5) where by an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained. Mr. G. Subramaniam, learned counsel appearing for the decree-holder, would state that the matter would squarely come under circumstances Nos. 2 and 5 on the facts of the present case. The suit before the Sessions Court at Kuala Lampur appears to have been instituted on or about, if not anterior to 28-10-1981. The second summons in the suit was served on the judgment-debtor on 19-11-1981 by one T. S. Abdul Rahim, who, according to the evidence of the decree-holder examined as P.W. 1, is stated to be the concerned Process Server. Ex. A2 is the photostat copy of the summons issued to the judgment-debtor second time and Ex. A3 is the photostat copy of the affidavit of the Process Server, T. S. Abdul Rahim. Earlier, according to the decree-holder, P.W. 1, after the service of the first summons, the judgment-debtor passed on a letter on 28-10-1981 whereby after acknowledging the receipt of the summons and the statement of claim annexed thereto, he gave consent to take a judgment for the sum of 13,420.00. Ex. A1 is the photostat copy of the said letter. These documents, apart from the evidence of P.W. 1, amply bear out that on the relevant dates, namely, when the borrowing took place on 1-6-1976; when the action was commenced in the foreign country in or about October, 1981; when summonses were served on him twice in Oct.-Nov. 1981 and when he gave the letter of consent, the judgment-debtor was a resident of Kuala Lampur.

(3.) The action before the Court at Kuala Lampur in the State of Federal Territory, Malaysia, was an action in personam. May be, the judgment-debtor was not a subject of that foreign country at the relevant point of time, so as to attract circumstance No. 1. But certainly it was not a case of a casual passage through, or a momentary presence in that foreign country, so as to say it was not a sufficient residence for creating jurisdiction. The judgment-debtor of course put forth a written plea that he came to that foreign country only as a tourist and not as a permanent resident. But he never cared to get into the box and substantiate this plea of his. The evidence placed by the decree-holder is ample enough to draw the inference that at the time when the action began and the summons was served, the judgment-debtor was a resident of that foreign country. Further, we find that as per Ex. A1 the judgment-debtor after acknowledging the receipt of the summons and the statement of claim, gave consent to take a judgment for the sum of 13,420.00. This would constitute an agreement to submit himself to the foreign Court in which judgment has been obtained. It is not a case of mere intention on the part of the judgment-debtor to submit to the jurisdiction of the foreign Court, but it had been translated into action by the passing of the letter of consent prior to the passing of the decree. Of course, Mr. P. Shanmugam, learned counsel for the judgment-debtor, made a strenuous attempt to demonstrate that none of these documents could be relied on. He points out that the photostat copy of the summons, marked as Ex. A2, bears the date 4-11-1981 and it casts a considerable doubt as to how the letter of consent as per Ex. Al would have come to be passed on 28-10-1981, acknowledging receipt of summons. This submission is in ignorance of the evidence of the decree-holder, as P. W. 1, that the letter of consent was passed on by the judgment-debtor on receipt of the first summons, and Ex.A2 is the photostat copy of only the second summons. Nothing has been brought out in cross-examination to discredit the testimony of P.W. 1. Furthermore, the judgment-debtor, in his written pleas, has not disputed his passing on the original of Ex. A1. He would only badly say that without instituting the suit and without giving the number of the case, the decree-holder obtained the letter of had received the summons. As to why he, the judgment-debtor, consent by fraud, as if the judgment-debtor, should succumb to such a suggestion of the decree-holder and as to the details of the fraud played by the decree-holder, the written pleas of the judgment-debtor are portently silent. Added to that, for reasons best known to him, the judgment-debtor has not tendered his evidence in the box. In the said circumstances, the Court below rightly repelled the contentions put forth on behalf of the judgment-debtor that a fraud had been played by the decree-holder against the judgment-debtor in this behalf. The features discussed above do indicate that circumstances Nos. 2 and 5 were present to confer jurisdiction with the foreign Court. Under these circumstances. I have to eschew the first ground of attack put forth by Mr. P. Shanmugam, learned counsel for the judgment-debtor.