GAJANAN SHESHADRI PANDHARPURKAR Vs. SHANTABAI

JUDGEMENT

(1.) THIS second appeal arises out of a suit on a foreign judgment. The defendant's father Shankar Komti mortgaged his house within the jurisdiction of the Osmanabad Court to the plaintiffs, and after his death, his daughter, the defendant, inherited his property as his sole heir. The plaintiffs filed a suit against her in the Osmanabad Court (Nizam's State) to recover Rs. 1,300 due under the mortgage deed by the sale of the mortgaged property and the balance out of the assets of the deceased mortgagor in the hands of the defendant. The defendant was then a minor and was living with her husband in the Sholapur District. Her husband was appointed her guardian ad litem, and notices were served both on the minor defendant and on her husband. The defendant's husband, however, did not appear to defend the suit, and the Osmanabad Court appointed its Nazir as the; defendant's guardian ad litem. The Nazir put in a written statement denying the mortgage, and after recording the statement of the writer of the mortgage deed, the Osmanabad Court passed a mortgage decree, which further provided that if the decretal amount was not satisfied out of the sale-proceeds of the mortgaged property the plaintiffs were at liberty to apply for a personal decree against the defendant to the extent of the assets of her father in her hands. The decree was executed by the Osmanabad Court, and after the sale of the mortgaged property, a sum of Rs. 598-11-9 still remained due to the plaintiffs. The plaintiffs, therefore, filed this suit in the Additional Joint Second Class Subordinate Judge's Court at Sholapur, on the judgment of the Osmanabad Court, to recover Rs. 598-11-9, costs and future interest from the defendant out of her father's assets in her hands. Both the lower Courts dismissed the suit on the ground that the judgment of the Osmanabad Court was not binding on the defendant as the personal decree against her was passed ex parte and she had not submitted to the jurisdiction of that Court and as the suit had not been disposed of on its merits.

(2.) THE case is governed by Section 13 of the Civil Procedure Code which says that- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title. . . . THEn follow six exceptions, of which we are concerned only with exceptions (a) and (b), which say: (a) where it has not been pronounced by a Court of competent jurisdiction; and (b) where it has not been given on the merits of the case. It is urged on behalf of the defendant that as her husband was her de jure and de facto guardian and was appointed by the Osmanabad Court to act as her guardian ad litem in the suit, the Court had no jurisdiction to appoint its own officer unless the defendant's husband refused to act as her guardian. It is clear from the notices (exhibit 36) served upon both the defendant and her husband that neither of them objected to her husband's appointment as her guardian ad litem. He did not refuse to act as her guardian for the suit. In these circumstances the Osmanabad Court should not have appointed its own officer as her guardian for the suit. Assuming this to be so, the most that can be said in favour of the defendant is that her guardian ad litem, viz. her husband, having remained absent, the suit was tried against her ex parte. Even then the judgment delivered by the Osmanabad Court (exhibit 33) shows that the suit was heard on its merits. From the Roznama (exhibit 37) it appears that several adjournments were given to the plaintiffs to enable them to lead their evidence to prove the mortgage. Ultimately the writer was examined, and on the strength of his evidence the plaintiff were given a decree. As observed in Ishri Prasad v. Sri Ram (1927) I. L. R. 50 All. 270, the question to be considered in such cases is whether the judgment is given on the merits or whether it is only by way of penalty. THE true test is whether the judgment has been given as a penalty for any conduct of the defendant or whether it is based on a consideration of the truth or otherwise of the plaintiffs' case. THE Osmanabad Court did not give a decree to the plaintiffs merely because the defendant was unrepresented or that the defendant did not raise any objection to the plaintiffs' claim; but it considered the plaintiffs' claim on its merits, and after taking evidence, it came to the conclusion that the claim was proved. In Ephrayim v. Turner, Morrison & Co. (1930) 32 Bom. L. R. 1178 the defendants' pleader did not defend the suit on its merits owing to absence of instructions from the defendants, and it was held that the decree did not on that account cease to be one passed on the merits. It is obvious that in this case the suit was disposed of on the merits, and the defendant cannot get the benefit of the exception contained in Clause (b) of Section 13 of the Civil Procedure Code.