BAIJNATH KARNANI Vs. VALLABHADAS DAMANI

JUDGEMENT

(1.) This is an appeal from the judgment of Stone, J. and the point to be decided is: Where in a foreign State there is a suit and in that suit a judgment is given and from that judgment appeal is made, which appeal is dismissed, is the judgment in that suit the judgment of the Court of first instance or is it the judgment of the appellate Court for the purposes of the Limitation Act?

(2.) The suit under appeal is brought to enforce a judgment given in the State of Bikanir. The first Court's decree there was appealed from, and the appeal was dismissed by the appellate Court. If the appellant here, the plaintiff in the suit, is to take as the date for his cause of action the date of the decree in the Court of first instance, then his suit is barred by limitation. If he is to take the date as that of the appellate Court's decree then his suit is not barred by limitation.

(3.) This is a very interesting point and, as Stone, J. remarks, it is strange that there are no direct decisions upon this point although it must have arisen in India many times before. Stone, J. has rightly, in my opinion, held that in Art. 117 of the Limitation Act judgment means decree. He has taken the view that the starting point of limitation was the decree in the first Court and accordingly dismissed the suit as being barred by limitation. It is contended here that he was wrong. In this case we are dealing with a judgment given in the State of Bikanir where it is conceded that all the provisions of the Civil Procedure Code are applied and the decisions of the Indian High Courts followed; and, in my view, the difficult question before us is made more simple on that account. It is conceded that a foreign judgment and a municipal judgment are upon an entirely different basis. A foreign judgment cannot be executed and it is merely a cause of action and the judgment is regarded as creating a debt between the parties to it and it is said that the debt so created is a simple contract debt, the liability of the defendant arising on an implied contract to pay the amount of the foreign judgment. There is no merger of the original cause of action and it is therefore open to the plaintiff to sue either on the foreign judgment or on the original cause of action on which it is based; and it is argued on behalf of the respondent that, as a foreign judgment is a mere cause of action or a right gained by the plaintiff by reason of his decree, the starting point of limitation is the date upon which he obtains that right and that this cannot be affected by reason of the pendency either of an appeal or the supervention of a decree of an appellate Court confirming the lower Court's decree; and in aid of this argument, amongst other things, it is pointed out that when a decree has been obtained steps to execute the decree may be taken and execution of it had during the pendency of an appeal unless those steps are stayed. In my opinion, the latter test, although there is a great deal to be said for the argument which adopts it, is not the real test. What has got to be found is, what is the final decree which has been obtained by the plaintiff in the suit; and it is quite clear that in order to enforce the judgment of a foreign Court that judgment must be a final one; and indeed that is conceded by the learned Counsel for the appellant and the respondent. In Nouvion V/s. Freeman (1889) 15 A.C. 1 which was an action brought upon a foreign judgment for the recovery of a debt, it was held that if the judgment does not finally and conclusively (subject to an appeal to a higher Court) settle the existence of the debt so as to become res judicata between the parties, such an action cannot be brought. In that case their Lordships had before them what was described as a "remate" judgment of a Spanish Court and in accordance with the laws of Spain this "remate" judgment when it was "executive" or summary, as it was, could not be regarded as res judicata and their Lordships accordingly held that since such a judgment as that does not finally and conclusively establish the debt, no suit upon it could be brought in England. Lord Herschell in dealing with the finality and conclusive nature of the judgment upon which an action may be maintained in the English Courts when such judgment is pronounced by a foreign Court at p. 9 says: My Lords, I think that in order to establish that such a judgment has been pronounced it must be shown that in the Court by which it was pronounced it conclusively, finally, and for ever established the existence of the debt of which it is sought to be made conclusive evidence in this country, so as to make it res judicata between the parties.