PERURI VISWANATHA REDDI Vs. DTKEYMER

JUDGEMENT

(1.) This is an appeal from the decision of Bake-well, J. on the original side giving judgment for the plaintiff in a suit on a foreign judgment obtained by the plaintiff against the defendant in the High Court in England. The defendant pleaded among other things that the English Court had. no jurisdiction, and that the case was not decided by the English Court on the merits. Bakewell, J. overruled both the defences and gave the plaintiff a decree on the judgment sued on.

(2.) It appears from the certified copy of the English judgment filed by the plaintiff that the defendant was ordered to answer interrogatories and failed to do so, and that therefore it was ordered that his defence should be struck out and. that he should be placed in the same position as if he had not defended, and that the plaintiff should be at liberty to sign judgment against him for ? 425-17s. 2d. the amount claimed and costs and that judgment was signed accordingly.

(3.) Now in this state of things the first question that arises is whether a judgment obtained in this manner was a judgment not given on the merits of the case within the meaning of Section 13(b) of the Code of Civil Procedure, in which case it is not to be conclusive upon the parties in a subsequent suit. Bakewell, J. has held that it must in the circumstances be taken to have been given on the merits, but with great respect we are unable to agree with him. We cannot see how a case, in which the defence, or to use our phraseology, the written statement of the defendant was struck out and he was not permitted to go into the merits at the trial can be said to have been decided on-the merits. In The Delta (1876) 1 P.D. 393 , Sir Robert Phillimore overruled a plea of res judicata by reason of a foreign judgment on two grounds, one, that the foreign judgment had not been pronounced when the English suit was instituted and that it was therefore merely a case of Us alibi pendens and the second, that the foreign judgment " not having been given on the merits of the case but on matter of form only " could not be set up as a bar to a decision on the merits. A foreign judgment passed in default ? of appearance was there treated as not being a decree on the merits, as also Gorell Barnes, J., in The Challenge and Due Daumale (1901) P. 41. It does not seem to us to make any difference whether the default was to enter appearance or to answer inter-rogatories when the result of not answering them was to put the defendant in the same position as if he had never entered appearance. There is however even more direct authority. In Haigh v. Haigh (sic) 31 Ch. D. 478, in refusing to set aside a judgment signed, as the judgment sued on was, after the defence had been struck out for failure to answer interrogatories, Parson, J. said that he had the strongest disinclination that any case should be decided otherwise than upon its merits, but that in the circumstances he could not set aside the judgment. And in Farden v, Richter (sic) 23 Q.B. D. 124, the Master and the Judge at chambers set aside a judgment obtained in this way on the default of the defendant to answer interrogatories, and the Court of Appeal restored the judgment on the ground that the affidavit of the defendant in support of the motion to set aside the judgment did not show that he had a defence on the merits. These cases which apparently were not cited before the learned judge appear to us to show that a judgment obtained in , such circumstances as the present judgment cannot be considered to have been decided upon the merits.