GUDEMENTLA CHINA APPALARAJA Vs. KOTA VENKATASUBBA RAO

JUDGEMENT

(1.) The petitioner was the defendant in O.S. No. 146 of 1942, filed by the respondent in the Court of the District Munsiff of Cocanada. The case of the respondent was that the petitioner who is his brother-in-law, agreed to lend him Rs. 525 on security of his lands in Yanam which is in French territory. Under the French Law, the immoveable properties in French territory can be made liable only under a decree obtained in French Courts. The petitioner and respondent therefore proceeded to Yanam and obtained a consent decree from the Sub-Court of Yanam to the effect that the respondent owed the petitioner a sum of Rs. 525 and agreed to pay the same with interest at 8 per cent, per annum within a period of two years. But as a matter of fact the petitioner had by that time paid the respondent only Rs. 100 and though he promised to pay the entire balance in Cocanada, he paid him only Rs. 25. The respondent therefore claimed the balance with interest mainly as damages for breach of a contract and alternatively on the basis of specific performance of a contract to lend. The petitioner contested this claim. His case was that he had lent the respondent Rs. 500 on a promissory note and that when he pressed for the repayment of this amount, the respondent agreed to suffer a decree in the French Court in Yanam and on their going to that Court a decree in the petitioner's favour was passed. It was contended that in view of that decree, the claim of the respondent was barred under Section 13, Civil Procedure Code. Other contentions also were raised and although evidence had been adduced on all the issues, the learned District Munsiff without going into the merits dismissed the suit on a preliminary point regarding the effect of the decree of Yanam Court. He held that the decree was conclusive in the matter relying on the decision in Muhammad Moideen V/s. Chinthamani Chettiar . On appeal the learned Subordinate Judge differed from the District Munsiff and considered that the above decision did not apply to the facts of the present case. He therefore remanded the suit for disposal on merits. It is against this order that this revision petition had been filed.

(2.) The only point for determination in this petition is whether the decree passed by the Yanam Court can be regarded as a decision given on merits within the meaning of Section 13 which is in these terms: A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title.

(3.) One of the exceptions to this rule is Clause (b) except where it has not been given on the merits of the case. In Muhammad Moideen V/s. Chinthamani Chettiar . the decree of the foreign Court was based on a joint representation by the plaintiff and defendant that if they did not settle their dispute by a certain date the suit shall be decreed as prayed for. It is argued that the present case is a similar one and as the respondent consented to the decree in question being passed, that decree should be considered as having been given on the merits of the case. It is therefore contended that Clause (b) of Section 13 does not apply. On behalf of the respondent it is argued that for the application of Section 13 it is necessary that there should be a controversy. Reference in this connection is made to the decision of the Privy Council in Keymer V/s. Viswanatham Reddi (1916) 32 M.L.J. 35 : L.R. 44 I.A. 6 : I.L.R. 40 Mad. 112 (P.C). The decision in Muhammad Moideen V/s. Chinthamani Chettiar is distinguished on the ground that in that case there was a controversy unlike the present case.