JIVAPPA TIMMAPPA BIJAPUR Vs. JEERGI MURGEAPPA VIRBHADRAPPA

JUDGEMENT

(1.) In the Shimoga Court in the Mysore State the opponents obtained a personal decree ex parte against the present appellant in his absence. That decree was afterwards sent by the Shimoga Court to the Court of the Subordinate Judge of Bagalkot for execution.

(2.) Two questions arise: first, whether it was open to the executing British Court to enquire whether the Shimoga Court s decree was passed with jurisdiction, and secondly, if it is so open, then, whether the Shimoga Court had or had not jurisdiction to make this decree in absentem against the appellant who is a resident of British territory.

(3.) In Haji Musa Haji Ahmed v. Purmanand Nursey (1890) 15 Bom. 216 Mr. Justice Farran held that the Court executing a foreign Court s decree was entitled to exercise a judicial discretion as to whether it would put into force the provisions of Section 229B of the Civil Procedure Code of 1882. Section 229B of that Code is reproduced in Section 44 of the present Code and deals with the power of the Governor General in Council by notification to declare that the decrees of foreign Civil Courts may be executed in British India as if they had been passed by the Courts of British India. Dealing with that provision Mr. Justice Farran says that the section "does not remove the decree of a Native State falling within its purview from the category of foreign judgments. It merely alters the procedure by which such a judgment can have effect given to it in British India. Notwithstanding the section, such a decree still remains a foreign judgment, and its effect is removed by showing want of jurisdiction in the Court which passed it. This Court is, therefore, not precluded from ascertaining whether a foreign Court had jurisdiction merely because that Court has itself decided an issue upon that point in its own favour."