K N GURUSWAMI Vs. MUHAMMAD KHAN SAHIB

JUDGEMENT

(1.) This appeal raises a question as to the effect of an ex parte judgment passed by a foreign Court against an absent foreigner. The facts may be briefly stated. The appellants are subjects of the Mysore State and they filed a suit in the District Court of Bangalore against three defendants, the last of whom is the respondent before us. The suit was based upon a promissory note alleged to have been executed by them and also upon a contract, which they were stated to have entered into. The 3 defendant (the respondent) was a British subject and was residing at the time of the suit in the District of Coimbatore, where (the appellants allege, though this fact is denied) he was served with the summons in the suit. He, however, did not appear, but a judgment was passed by the Bangalore Court against him also. This foreign decree, the appellants sought to execute in the Lower Court, but the learned Judge refused their application under Section 13 of the Civil Procedure Code, holding that it was passed without jurisdiction. The appellants question in this appeal the correctness of the order made.

(2.) It is settled law, that the British Courts will not recognise the judgments of the Courts of a foreign country passed in an action in personam against a British subject, not resident in that country at the date of the action, who has neither appeared in the suit nor submitted to the jurisdiction of the foreign Court.

(3.) But, Mr. Somayya, the appellants learned Counsel, asks us to assume certain facts and, for the purpose of this judgment, those facts may be assumed. Mr. Somayya's complaint is, that the Lower Court has not given him an opportunity of proving those facts; but, in the view we take, even assuming that the facts alleged are true, the learned Counsel's contention cannot prevail.