S VEERARAGHAVA AYYAR Vs. JDMUGA SAIT

JUDGEMENT

(1.) The learned Judges have differed on the question whether the District Munsif was right in refusing to execute the decree of the Cochin Court, as to which a notification has been issued pursuant to Section 44, Civil Procedure Code, on the ground that it was passed without jurisdiction. It was not disputed that in the circumstances which were similar to those in the Faridkote case the Cochin Court must be considered to have had no jurisdiction, but it was contended that a British Court was bound under the terms of the section to execute it, as if it had been passed by a Court of British India, and that it would not now be open to a Court in British India to refuse to execute the decree of another Court in British India for want of jurisdiction. I do not think it necessary to consider the second proposition because I agree generally with the judgment of Sundara Ayyar, J,, that Section 44 has not the effect contended for, and that a British Court ought not to execute a decree of the Cochin Court passed without jurisdiction. That judgment is a judgment of foreign Court within the meaning of Section 13, Civil Procedure Code, and it would in my opinion require much plainer words than are to be found in Section 44 to show that it was the intention of the legislature that decrees of foreign Courts to which Section 44 applies should be enforced in British Courts without regard to the provisions of that section. Full effect may be given to Section 44 by holding that it was merely intended to alter the procedure by which such foreign judgment can have effect given to it in British India. This was decided by Farran, J., more than twenty years ago in Haji Musa Haji Ahmed v. Purmanand Nursey (1891) I.L.R. 15 Bom. 216 which apparently baa not been questioned in our Courts until the present case, and was known to the legislature when the provisions of the last Code were revised and present Code was enacted. The suggestion that the legislature intended all decrees of Courts, in the position of the Cochin Court to be executed in British India without any question seems to me altogether inadmissible having regard to the way in which the question has been dealt with as regards the Superior Courts in the United Kingdom. The judgments of a Superior Court can only be executed in the Superior Court of another part of the United Kingdom under the Judgments Extension Act, (sic), when they are judgments for "any debt, damage or costs." Such judgments are, it is expressly provided, to have the same force and effect after registration in the executing Court as if they were judgments of that Court, words which are not to be found in Section 44, Civil Procedure Code, Further Section 8 makes a significant exception in the case of decrees of the Court of Session " pronounced in absence in an action proceeding on an arrestment used to found jurisdiction in Scotland", in countries such as Scotland whose jurisprudence is based on the Roman Law, jurisdiction against a foreigner may be founded on seizure of his property within the territorial limits, but English law does not recognize such a procedure except in the case of the custom of foreign attachment in the City of London as to which see Wadsworth v. The Queen of Spain (1851) 17 Q.B., 171 and the legislature has therefore thought proper to except Scotch decrees founded on such an arrestment and obtained in absentia from the operation of the Act. The inferior Courts Jurisdiction Act, 1882, is also confined to judgments for any debt, damages and costs and only allows execution of judgments obtained in one part of the United Kingdom against defendants domiciled in another part subject to the restrictions as to cause of action and service contained in Section 10 of the Act. It cannot, I think, have been the intention of the Indian legislature in Section 44 to ignore all these restrictions.

(2.) The next question is whether the defendant submitted to the jurisdiction of the Cochin Court. The lower Appellate Court returned a finding that he did not and the respondent filed a memorandum of objections to the finding. Sundara Ayyar, J., observes that no attempt was made to impeach the finding at the hearing, but the learned vakil who appeared on both occasions assured us that this was a mistake and has addressed us an elaborate argument on the point The law on this question cannot perhaps be considered to be fully settled. The decision in Parry & Co. v. Appasami Pillui (1880) I.L.R. 2 Mad. 407 that it is enough merely to object to the jurisdiction is probably no longer law. See Boissiere and Co. v. Brokner and Co. (1889) 6 I.L.R. 85 and Guiard v. De Clermont and Donner (1914) 30 I.L.R. 511. There is however the high authority of Lord Esher, M.R., and (sic), L.J, in Voient v. Barrett (1885) 55 L.J.(Q.B.D.). 39, that submission is not voluntary in the language of Bowen, L.J., in a case where goods belonging to the defendant have been seized by a foreign tribunal so that he only appears to got them released. In the recent case of Guiard v. De Clermont and Danner (3) where judgment had been given against the defendants in default of appearance and a small sum about ?4 in a Paris bank had bean attached in execution, the defendant sought to set aside the default decree without any reference to the seizure of this comparatively trifling sum, and Lawrence, J., held that it was not a submission for the purpose of saving property and held the judgment of the French Court was binding. Whether the submission was for the purpose of saving property or voluntary, is apparently a question of fact in each case. In the present case it is found that the plaintiff in May 1908 obtained an interim injunction restraining the defendant from disposing of the timber belonging to him in the Cochin State, and that in the following July the defendant filed a counter-petition for the removal of the injunction and a written statement denying the jurisdiction and raising a defence on the merits on the same day. On the above facts I think there was evidence to support the finding and am not prepared to interfere with it in Second Appeal. This appeal is allowed, the order of the lower Appellate Court is set aside and the order of the District Munsif restored with costs throughout. Ayling, J.

(3.) I agree. Seshagiri Ayyar, J.