N P L PALANIAPPA CHETTY Vs. NMRNAGAPPA CHETTIAR

JUDGEMENT

(1.) This appeal and appeal No. 47 of 1928 were originally heard by myself and Curgenven, J., but owing to the latter's illness before he left the Court last year we were unable to deliver our judgments. In the meantime an informal application was made to me which is now put in the form of petition that we should ask Mr. Brook Elliot, a member of the Ceylon Bar to either appear as an amicus curiae or as a witness to help us in the elucidation of the Ceylon procedure in this case as contained in the Ceylon Procedure Code. We have given very careful consideration to this request and we are indebted to Mr. Brook Elliot for so readily placing his services and knowledge at our disposal. But we consider that the only way in which Mr. Brook Elliot could be of any real assistance would be if he were asked his opinion as to the very question that we have to decide. An expert in foreign law is called as I understand it to state what the law of a foreign country on a particular point is; an advocate of the Scottish Bar is often called as a witness in the English Courts to explain the law of Scotland on any particular point that arises. But in this case we have the law laid down for us in a particularly elaborate manner in the Ceylon Civil Procedure Code and it appears to us that it is our duty to interpret that Code as best we can and that we are not entitled to rely on any outside opinion, however eminent, as to the interpretation of that Code.

(2.) This was a suit to enforce payment of Rs. 8,000 the balance due on foot of a certain mortgage and a foreign judgment obtained by the plaintiff in the District Court of Colombo. Defendant 1 had effected this mortgage to the plaintiff on the security of certain properties in Ceylon on 3 April 1917. The suit in the Colombo District Court on the mortgage document was started on 10 November 1918 and on 12 May 1919 there was a preliminary decree followed on 4 July 1919 by a final decree and on 16 October 1919 the plaintiff purchased the properties in Court auction for Rs. 9,000 odd and in 1920 sold them by private sale for Rs. 33,000. After giving credit for this, the suit was brought for the balance of Rs. 8,000. On 18th October 1922 the present suit in the Indian Court was started and the learned Subordinate Judge found that the claim was barred by limitation as to the original cause of action as the document could not be held to be a registered document for the purpose of limitation. The learned Judge curiously enough did not give any finding as to the limitation with regard to the foreign judgment, and it is practically uncontested that the plaintiff has under Art. 117, Lim. Act, six years in which to bring his suit in British India on the foreign judgment. The authority of Venkata Gurunadha Ramaseshayya V/s. Tripura Sundari Cotton Press, Bezwada A.I.R. 1926 Mad. 615, precludes him from relying on the document registered outside British India. The only question in this appeal really is whether the foreign judgment was one based on the merits or not within Section 13-b, Civil P.C. The respondents advocate faintly contended that there was no submission to the jurisdiction on the part of the defendant and no service on him, but the document which is the original plaint contains clear submission to the jurisdiction for it states: It shall be lawful for the said obligee or his aforewritten at once to sue for and recover payment of the said sum of Rs. 27,000.

(3.) It is obvious, think, that the words "to sue for" must mean to sue in the Courts of the country where the obligation was entered into and the obligor is Nawanna Moona Roona Nagappa Chetti of Sea Street in Colombo and the obligee as also described as of the same address. In this case there was substituted service as provided for in the Ceylon Civil Procedure Code, Secs.60 and 61. The latter makes substituted service as effective as if it had been made on the defendant personally. There is no reason to suppose that substituted service was mot ordered and effected in this case with due regard to the procedure of the Ceylon Courts.