JAISUKHLAL HARISHANKAR GIRNARA Vs. MAHOMED HUSSEIN DAWOODBHAI KARWA

JUDGEMENT

(1.) THE plaintiff has filed this suit to recover from the defendants Rs. 3,699-14-6 together with interest on Rs. 2,251-5-3 at six per cent. THE plaintiff had money dealings with the defendants at Junagadh, and it is alleged that the plaintiff lent Rs. 2,500 to the defendants who carried on business in the firm name of M. D. Karwa and Co. at Junagadh. THE plaintiff filed suit No.460 of Samvat Year 1981 in the Diwani Adalat at Junagadh, and obtained a decree for Rs. 2,009-13-3 on March 18, 1928. Defendant No.1 being dissatisfied with the decision filed appeal No.100 of S. Y. 1984-85 in the Sadar Adalat Court of the Junagadh State ; but the appeal was dismissed on February 9, 1929. Defendant No.1 being still dissatisfied with the decision filed a second appeal in the Huzur Adalat at Junagadh ; but the same was also dismissed on October 16, 1932. THE plaintiff has filed the suit on the foreign judgment seeking to enforce the decree of the Huzur Adalat of Junagadh, dated October 16, 1932. Defendant No.1 has filed his written statement in which he raised several contentions. At the hearing Mr. Desai gave up all except that the suit was barred by the law of limitation.

(2.) ON behalf of defendant No.1 it is urged that Article 117 of the Indian Limitation Act applies to the suit, and that in computing the period of limitation the starting point is March 18, 1928, i. e. the date on which the judgment of the trial Court was given. In support of this contention defendant No.1 relies on the proviso to Rule 114 in Dicey's Conflict of Laws, 5th edn. , which runs in these terms: Provided that a foreign judgment may be final and conclusive, though it is subject to an appeal and though an appeal against it is actually pending in the foreign country where it was given. He further relies on the decision in Hari Singh v. Muhammad Said (1926) I. L. R. 8 Lah. 54 where at p. 77 the passage from the proviso in Dicey's Conflict of Laws is quoted with approval as applicable to India. In my opinion, this contention of defendant No.1 is unsound. The words used in Article 117 of the Indian Limitation Act are "the date of the judgment. " It does not say 'the judgment of the trial Court. ' As pointed out in numerous cases by their Lordships of the Privy Council, it is useful to rely on the strict grammatical construction of the words used in an Act in preference to interpretations given to words under different sets of laws even by the Courts in England. I do not see any justification for holding that the words used in Article 117 should mean judgment of the trial Court alone. The proviso to Rule 114, as stated in Dicey's Conflict of Laws, in my opinion, only means that the plaintiff who had obtained judgment in a foreign Court was not bound to wait either to see that the defendant filed an appeal, or, if an appeal was filed, till it was decided. Immediately a judgment is pronounced in his favour, he has a right to bring a suit on the same in a foreign Court. The only qualification which may be stated to exist is that the judgment must not be an interlocutory judgment as pointed out in Dicey's Conflict of Laws, It should be a judgment which becomes res judicata between the parties on the matters covered by the litigation. I am unable to interpret the words used in the proviso as confining the successful plaintiff to bring a suit on the original decree, and if he did not file a suit on that, to mean that he lost his right altogether. In this connection, it is material to bear in mind that when an appeal is filed and dismissed, according to the Civil Procedure Code, 1908, the form of the decree of the appeal Court is that the appeal is dismissed and the judgment of the trial Court is confirmed. As pointed out by Sir Lawrence Jenkins in Kailash Chandra Bose v, Girija Sundari Debi (1912) I. L. R. 39 Cal. 925, a decree on appeal supersedes the decree passed under appeal, and the decree of the Court of first instance could not in the circumstances be pleaded as res judicata. In the same way, in Sheosagar Singh v. Sitaram Singh (1897) I. L. R. 24 Cal. 616 P. C. , Lord Macnaghten, in delivering the judgment of the Privy Council, stated as follows (pp. 626-627): If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise to the plea [of 'res judicata']. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of Appeal. Thus, as soon as the Huzur Diwani Adalat of Junagadh passed the decree in the second appeal on October 16, 1932, the decree of the trial Court and the first appeal Court were superseded, and as between the parties the only decree which remained res judicata was the decree passed by the Huzur Diwani Adalat. The decision of the Lahore High Court, relied upon by defendant No. 1, does not discuss this aspect of the case at all. ON going through the judgment, it is clear that the learned Judges considered various alternative grounds on which the suit was bound to fail. It was held by the Court that the foreign Court had no jurisdiction to try the suit, that it had not followed the principles of natural justice in coming to its decision, and that, even if the time permitted in appeal was excluded, the suit filed on the foreign judgment was barred by the law of limitation. ON the other hand Baijnath v. Vallabhadas (1933) I. L. R. 56 Mad. 951 completely supports the plaintiff's contentions in this suit. After a review of all the authorities the learned Judges came to the conclusion that the term 'judgment' in Article 117 of the Indian Limitation Act meant a decree, and if there is the decree of the appeal Court, it is that decree which is the starting point for counting the period of limitation. I respectfully agree with the conclusion arrived at in that decision and hold that this contention of defendant No.1 is unsound.

(3.) MARCH 10 Since the last hearing I came across the decision in Jatindra Nath Basu v. Peyer Deye Debi (1916) L. R. 43 I. A. 108 : S. C. 18 Bom. L. R. 509. In that there is a sentence which states (p. 112): . . . the decree, as a decree capable of being executed, could not by reason of the bar of limitation be assigned. . . . It had become a dead decree. I invited counsel to argue the point of limitation again having regard to this sentence. In order to make the point clear, an additional issue was permitted to be raised, and the question of fact, whether the decree of the Junagadh Court had become time-barred, is covered by that issue.