RAMA AYYAR (DIED) Vs. KRISHNA PATTER

JUDGEMENT

(1.) The facts of the case are set out in my learned brother s judgment. The only question for consideration is whether the respondent voluntarily submitted to the jurisdiction of the Cochin Court, which passed the decree which it is how sought to execute. The respondent appeared and defended the suit against him in the Cochin Court, but he protested against the jurisdiction of the Court. He renewed his protest in the Appellate Court, and has now taken the same objection in execution of the decree. His reasons for appearing and defending the suit were, as found by the learned District Judge: (1) that his creditor s son to whom he had repaid the suit debt refused to refund him the money unless he defended the suit brought by the father and (2) that if a decree were passed against him he might be arrested when he went to Cochin on business or to see his relations. In Parry & Co. v. Appasami Pillai (1880) I.L.R. 2 Mad. 407, the reason for the defendants submission to a foreign tribunal as given in the judgment (page 412) is " to escape the inconveniences which would attend a judgment against them, if at any time they or their property might be found in French territory." That case is therefore on all fours with the present case and if that ruling is to be followed this appeal would have to be dismissed. The authority of the ruling has, however, been recently doubted by the learned Chief Justice and Seseugiri Ayyar, J., in Veeraraghava Aiyar v. Muga Sait (1916) I.L.R. 39 Mad. 24 in consequence of the decision in Boissiere & Co. v. Brockner & Co. (1889) 6 I.L.R. 85. There are also other English decisions which are opposed to the ruling in Parry & Co. v. Appasami Pillai (1880) I.L.R. 2 Mad. 407, Boissiere & Co. v. Brockner & Co. (1889) 6 I.L.R. 85, Voinet v. Barrett (1885) 55 L.J. Q.B. 39, Rousillon v. Rousillon (1880) 14 Ch.D. 351 and Decosse Brissac v. Rathbone (1870) 30 L.J. Ex. 238. In a very recent case Harris v. Taylor (1915) 2 K.B. 580, where a defendant put in an appearance conditionally and applied to the Court to set aside the order for service out of the jurisdiction but did not even defend the action, it was held that the defendant hid voluntarily submitted to the jurisdiction because I he had sought the protection of the Court. The principle that P] is apparently applied in these English cases is that when a defendant submits to jurisdiction, except under duress, he is bound by the decision of the Court, because he has elected to take the chance of a decision in his favour and cannot be allowed to demur to a decision against him. A mere protest against jurisdiction does not make his submission involuntary. The ruling in Parry & Co. v. Appasami Pillai (1880) I.L.R. 2 Mad. 407, is the concurrent decision of three Judges and proceeds on the grounds that a defendant having protested against jurisdiction puts the plaintiff on his guard and does not lead him to believe that the proceedings will be allowed to be everywhere effectual. This point of view is quite different from that adopted by the English Courts, and in a question like this, which is one of international law, Indian Courts must be guided by the decisions of English Courts. The law however as laid down in Parry & Co. v. Appasami Pillai (1880) I.L.R. 2 Mad. 407 has been the law in this Presidency, where the circumstances are not the same as in England, for over thirty-five years and has not been altered notwithstanding the decision in Voinet v. Barrett (1885) 55 L.J.Q.B. 39. On the principle of stare decisis I am not prepared to dissent, unless and until that decision is overruled by a considered decision of a Full Bench. I therefore agree to refer to a Full Bench the questions proposed.

(2.) T. R. Krishnaswami Ayyar for the appellant.--The defendant put in a written statement objecting to jurisdiction and also pleaded on the merits. This amounts to submission. The recent decision in Harris v. Taylor (1915) 2 K.B. 580 is in my favour. John Wallis, C.J. [We will hear the other side.]

(3.) The Honourable Mr. L.A. Govindaraghava Ayyar and T.K. Govinda Ayyar for the respondents.