1. This second appeal arises out of a suit on a foreign judgment. The defendant's father Shankar Komti mortgaged his house within the jurisdiction of the Osmanabad Court to the plaintiffs, and after his death, his daughter, the defendant, inherited his property as his sole heir. The plaintiffs filed a suit against her in the Osmanabad Court (Nizam's State) to recover Rs. 1,300 due under the mortgage deed by the sale of the mortgaged property and the balance out of the assets of the deceased mortgagor in the hands of the defendant. The defendant was then a minor and was living with her husband in the Sholapur District. Her husband was appointed her guardian ad litem, and notices were served both on the minor defendant and on her husband. The defendant's husband, however, did not appear to defend the suit, and the Osmanabad Court appointed its Nazir as the; defendant's guardian ad litem. The Nazir put in a written statement denying the mortgage, and after recording the statement of the writer of the mortgage deed, the Osmanabad Court passed a mortgage decree, which further provided that if the decretal amount was not satisfied out of the sale-proceeds of the mortgaged property the plaintiffs were at liberty to apply for a personal decree against the defendant to the extent of the assets of her father in her hands. The decree was executed by the Osmanabad Court, and after the sale of the mortgaged property, a sum of Rs. 598-11-9 still remained due to the plaintiffs. The plaintiffs, therefore, filed this suit in the Additional Joint Second Class Subordinate Judge's Court at Sholapur, on the judgment of the Osmanabad Court, to recover Rs. 598-11-9, costs and future interest from the defendant out of her father's assets in her hands. Both the lower Courts dismissed the suit on the ground that the judgment of the Osmanabad Court was not binding on the defendant as the personal decree against her was passed ex parte and she had not submitted to the jurisdiction of that Court and as the suit had not been disposed of on its merits.
2. The case is governed by Section 13 of the Civil Procedure Code which says that-
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....
Then follow six exceptions, of which we are concerned only with exceptions (a) and (b), which say:
(a) where it has not been pronounced by a Court of competent jurisdiction; and
(b) where it has not been given on the merits of the case.
It is urged on behalf of the defendant that as her husband was her de jure and de facto guardian and was appointed by the Osmanabad Court to act as her guardian ad litem in the suit, the Court had no jurisdiction to appoint its own officer unless the defendant's husband refused to act as her guardian. It is clear from the notices (exhibit 36) served upon both the defendant and her husband that neither of them objected to her husband's appointment as her guardian ad litem. He did not refuse to act as her guardian for the suit. In these circumstances the Osmanabad Court should not have appointed its own officer as her guardian for the suit. Assuming this to be so, the most that can be said in favour of the defendant is that her guardian ad litem, viz. her husband, having remained absent, the suit was tried against her ex parte. Even then the judgment delivered by the Osmanabad Court (exhibit 33) shows that the suit was heard on its merits. From the Roznama (exhibit 37) it appears that several adjournments were given to the plaintiffs to enable them to lead their evidence to prove the mortgage. Ultimately the writer was examined, and on the strength of his evidence the plaintiff were given a decree. As observed in Ishri Prasad v. Sri Ram I.L.R. (1927) All. 270 the question to be considered in such cases is whether the judgment is given on the merits or whether it is only by way of penalty. The true test is whether the judgment has been given as a penalty for any conduct of the defendant or whether it is based on a consideration of the truth or otherwise of the plaintiffs' case. The Osmanabad Court did not give a decree to the plaintiffs merely because the defendant was unrepresented or that the defendant did not raise any objection to the plaintiffs' claim; but it considered the plaintiffs' claim on its merits, and after taking evidence, it came to the conclusion that the claim was proved. In Ephrayim v. Turner, Morrison & Co. : AIR1930Bom511 the defendants' pleader did not defend the suit on its merits owing to absence of instructions from the defendants, and it was held that the decree did not on that account cease to be one passed on the merits. It is obvious that in this case the suit was disposed of on the merits, and the defendant cannot get the benefit of the exception contained in Clause (b) of Section 13 of the Civil Procedure Code.
3. But whether the defendant can claim the benefit of the exception contained in Clause (a) of Section 13 of the Civil Procedure Code is not so easy to decide. The claim made by the plaintiffs before the Osmanabad Court consisted of two different parts. They first claimed to recover the amount due under the mortgage by the sale of the mortgaged house. They also further claimed that if the amount realized by the sale of the mortgaged house was found to be insufficient, the deficit should be recovered from the defendant out of the assets of her deceased father in her hands. The wording of the judgment is not so clear since it merely says that the deficit should be recovered out of the assets of the deceased mortgagee, and it does not clearly say that so far as the deficit was concerned a personal decree was passed against the defendant; but the effect of the decree is obvious. After the sale of the mortgaged house, no property of the deceased was left within the jurisdiction of the Osmanabad Court and that Court had no jurisdiction to pass any decree against the property of the mortgagor situate outside its jurisdiction. That property was neither pledged nor mortgaged to the plaintiffs, and no decree against the property itself could be passed. But what the decree did actually say was that the deficit should be recovered from the defendant personally, but that her liability was limited to the extent of the value of her father's assets in her hands. That was purely a personal decree against her though her personal liability was not unlimited. That personal decree could be made final only after the sale-proceeds from the mortgaged property were found to be insufficient. Thus the foreign judgment on which the present suit is based consists of two different parts, one of which the foreign Court had jurisdiction to pass and the other was purely a personal decree limited to a certain sum. If so, the principle laid down by the Privy Council in Gurdyal Singh v. Raja of Farid-kot I.L.R. (1894) Cal. 222 applies to the latter. In that case a suit was filed in the Native State of Faridkot to recover certain sums alleged to have been misappropriated by the defendant. The defendant did not appear at the hearing and an ex parte decree was passed against him. The defendant was a native of another Native State, and at the date of the suit he neither resided in the State in which the suit was filed nor was he a domicile of the State. On these facts it was held that the Court in that Native State had on general principles of international law no jurisdiction to entertain the suit in respect of the claim which was a mere personal claim as distinguished from a claim relating to land, and that decree was, therefore, held to be a nullity. In the same way that part of the decree passed by the Osmanabad Court against the defendant which was a personal decree against her must be regarded as a nullity. But even the personal decree would be binding upon her if it is found that she submitted herself to the jurisdiction of that Court voluntarily. It is, therefore, urged on behalf of the plaintiffs that the appointment of the Nazir as her guardian ad litem was legal and valid, and that as he appeared on her behalf and put in a written statement contesting the plaintiffs' claim, it must be held that the defendant submitted herself to the jurisdiction of the Osmanabad Court. If this contention be upheld, it follows that even the personal decree against her is not a nullity and is conclusive in a British Court under Section 13 of the Civil Procedure Code. But, as I have already pointed out, the Osmanabad Court acted beyond its jurisdiction in appointing its Nazir as the defendant's guardian when her husband, who was her de jure and de facto guardian and had been appointed guardian ad litem by the Court itself, had never expressed his unwillingness to act as her guardian. Order XXXII, Rule 4, of the Civil Procedure Code, which enables a Court to appoint any of its officers to be the guardian ad litem for a minor defendant, specifically provides that this power can be exercised when there is no other person fit and willing to act as the guardian for the suit. It is not suggested that the defendant's husband was not a fit person to be her guardian for the suit. His endorsement on the notice served on him shows that he was not unwilling to act as her guardian for the suit. The mere fact that he did not appear in the Court and put in a written statement on 'behalf of the defendant does not lead to the presumption that he was not willing to act as her guardian. It was open to him in her interests to refrain from submitting himself to the jurisdiction of the Osmanabad Court and thereby laying the minor defendant open to a personal decree against her. If the defendant herself was then a major, she could have refrained from submitting herself to the jurisdiction of the Osmanabad Court and thereby saved herself from a personal decree against her. She could not have been compelled to submit herself to the jurisdiction of the Osmanabad Court. If so, the mere fact that she was a minor should not put her to a disadvantage when her guardian who was interested in her took the same attitude and refrained from submitting himself, that is to say the minor, to the jurisdiction of the foreign Court. In such circumstances the Court acted against the interests of the minor and against natural justice by indirectly compelling her to appear in the suit by appointing its own officer as her guardian ad litem. Moreover it cannot be said that the officer of the Court who was thus appointed guardian ad litem voluntarily appeared to defend the suit. He was after all an officer of the Court and had to obey the orders passed by the Court. When the Court appointed its Nazir as the guardian, he had to appear and say some-thing. Thus his appearance cannot be regarded as a voluntary submission to the jurisdiction of the Osmanabad Court. When such submission is not voluntary, then it cannot be said that the defendant rendered herself willingly amenable to the jurisdiction of the foreign Court : Veeraraghava Ayyar v. Muga Sait I.L.R. (1914) Mad. 24. Hence under the circumstances of the present case it must be held that the personal decree passed against the defendant was an ex parte decree and that the defendant did not voluntarily submit herself to the jurisdiction of the Osmanabad Court. She is, therefore, not bound by the personal decree against her and the present suit, which is based on such a personal decree passed by the foreign Court, was rightly thrown out. For these reasons I confirm the decree of the lower appellate Court and dismiss the appeal with costs.