ISIDORE FERNANDO Vs. THOMMAI ANTONI MICHAEL FERNAND

JUDGEMENT

(1.) The plaintiff-appellant in this case instituted a suit against the defendant-respondent as the assignee of a foreign judgment passed by the District Court of Colombo on a promissory note for a sum of Rs. 1,300 with interest. The suit in Ceylon was filed under the summary procedure, Chap. 52, Ceylon Ordinance No. 2 of 1889. The defendant did not appear to obtain leave to defend that suit in time, and so an ex parte decree was passed. He then appeared, asked for the matter to be re-opened and for leave to defend the suit. The Court noted as follows: Defence unsatisfactory. Leave to defend will be granted on defendant giving security in Rs. 1,300 on or before 12 January 1925.

(2.) The security was not furnished and on 14 January 1925 the entry was: "Mr. Sivaprakasam moves for judgment. Allowed. Decree entered." Execution was taken out and notice served on the defendant. The plaintiff then assigned his decree to the present plaintiff- appellant, who instituted the suit under Section 13, Civil P. C, on the foreign judgment. Defendant was then living in Tuticorin. Issue 1 was: Whether the foreign decree relied upon in the plaint is not a decree on the merits? If not, is the suit maintainable?

(3.) The trial Court found the issue in favour of the plaintiff and gave a decree as prayed for with coats. But the lower appellate Court held the issue in favour of the defendant and remanded the suit for fresh disposal on the merits. Against this decree the present appeal has been filed. The precise point taken in the present appeal is whether a decree under the summary procedure of the Court of Ceylon as distinguished from an ex parte decree under the regular procedure is one on the merits, and it appears to be barren of authority. Mahomed Kassim & Co. V/s. Seeni Pakir A.I.R 1927 Mad 265 is a case in which the Full Bench overruled the decision in Jonoo Hassan V/s. Mahamad Ohathu , in which a decree under the summary procedure had been held to be an ex parte decree on the merits. If we take the actual words of reference to the Full Bench in Mahomed Kasim & Co. V/s. Seeni Pakir A.I.R. 1927 Mad 265. Does a suit lie in this country on a foreign judgment given on default of appearance of the defendant on the plaint allegations without any trial on evidence, then the answer to that question by the Full Bench would settle the matter against the appellant. But the argument is raised that the distinction between summary procedure and regular procedure was not considered in that case which related to a decree under the regular procedure. I shall therefore set forth in some detail the arguments raised by the learned advocate for the appellant. Section 7, Ordinance 2 of 1889 of Ceylon, runs as follows: The procedure of an action may be either regular or summary. Illustrations,-In actions of which the procedure is regular, the person against whom the application is made is called upon to formally state his answer to the case which is alleged against him in the application before any question of fact is entertained by the Court, or its discretion thereon is in any decree exercised. In actions of which the procedure is summary, the applicant simultaneously with preferring his application supports with proper evidence the statement of fact made therein; and if the Court in its discretion considers that a prima facie case is thus made out: (a) Either the order sought is immediately passed against the defendant before he has been afforded an opportunity of opposing it, but subject to the expressed qualification that it will only take effect in the event of _his not showing any good cause against it on a day appointed therein for the purpose; (b) or a day is appointed by the Court for entertaining the matter of the application on the evidence furnished and notice is given to the defendant that he will be heard in opposition to it on that day if he thinks proper to come before the Court for that purpose.