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Lakshmanan Chetti and ors. Vs. Karuppan Chetti and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1883)ILR6Mad273
AppellantLakshmanan Chetti and ors.
RespondentKaruppan Chetti and ors.
Excerpt:
.....whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. - 22. now this is clearly a suit on a foreign judgment as far as first and fifth defendants are concerned. 23. there seems to be nothing in the plaint to countenance the view taken in the subordinate judge's court that the suit either as regards first and fifth defendants, or as regards the other defendants was so framed as to warrant the court in regarding it as a suit upon the original cause of action, which towards the end of the plaint is..........rs. 11,493-2-4.4. this appeal is from the decree in that suit which was passed against first and fifth defendants for the sum claimed and costs, but which dismissed the suit as against the other defendants and directed the plaintiff's to pay the costs of the fourth and sixth defendants. the decree further directed that, in default of payment of the amount by first and fifth defendants within six months, the hypothecated property should be sold without prejudice to the other defendants, and the amount realized be applied in discharge of the judgment-debt.5. the plaintiffs alleged that the defendants constituted a mercantile firm, second and third defendants being sons of first defendant and undivided, and fourth and sixth defendants being undivided brothers of fifth defendant.6. the.....
Judgment:

Innes, J.

1. The plaintiffs had sued the first and fifth defendants in the Court at Kandy upon bonds, dated 15th February 1878 and 13th November 1878, and had obtained a decree against those defendants on 28th October 1879.

2. The bond of 15th February 1878 hypothecated immoveable property of defendants 1 and 5, situated in the island of Ceylon, while that of the 13th November 1878 hypothecated immoveable property both in Ceylon and in the District of Madura.

3. In execution of the decree in Ceylon the plaintiffs realized Rs. 738---50 cents by sale of the property in Ceylon. They then instituted a suit in the Subordinate Court of Madura against defendants 1 to 6 for the balance, Rs. 11,493-2-4.

4. This appeal is from the decree in that suit which was passed against first and fifth defendants for the sum claimed and costs, but which dismissed the suit as against the other defendants and directed the plaintiff's to pay the costs of the fourth and sixth defendants. The decree further directed that, in default of payment of the amount by first and fifth defendants within six months, the hypothecated property should be sold without prejudice to the other defendants, and the amount realized be applied in discharge of the judgment-debt.

5. The plaintiffs alleged that the defendants constituted a mercantile firm, second and third defendants being sons of first defendant and undivided, and fourth and sixth defendants being undivided brothers of fifth defendant.

6. The first three issues were--

(1) Whether the judgment sued on is binding on defendants 2, 3, 4, 6.

(2) Whether the said defendants are liable to this claim, and, if so, to what extent.

(3) Whether the District Court at Kandy had any jurisdiction to pronounce a decree affecting the property mentioned in the plaint.

7. The Subordinate Judge held on a review of the authorities that the District Court of Kandy was a Court of competent jurisdiction, and that its decree was conclusive between the parties, and that therefore, it was not open to the plaintiffs to sue upon the original cause of action.

8. He therefore found upon the first and second issues that the judgment of the Kandy Court was not binding on the second, third, fourth, and sixth defendants who were not parties to it, and that they are not otherwise liable to the claim. He thought it unnecessary in this view to consider the evidence on both sides as to whether fourth and sixth defendants were partners in the firm, or to discuss the liability of second and third defendants as undivided sons of the first defendant.

9. As to the third issue he was of opinion that in the circumstances of the case, the Court of Kandy was competent to affect by its decree the immoveable property situated in the Madura District, first defendant having submitted to the jurisdiction of that Court and prayed for a decree against the mortgaged property exempting him personally from liability. He considered, for reasons stated, that the pleas on which the fourth, fifth, and sixth issues were framed were not open to first defendant, and that consideration of the seventh and eighth issues was unnecessary.

10. Appeal is made on the following three grounds:

(1) That the decree of the Court of Kandy against first and fifth defendants is no bar to plaintiffs suing the other defendants on the original cause of action.

(2) That the Subordinate Judge ought to have held that the defendants were liable to pay to plaintiffs the amount sued for.

(3) That plaintiff's are at liberty to sue all the defendants upon the original cause of action irrespective of the foreign judgment.

11. Section 14 of the Civil Procedure Code provides that a foreign judgment will not operate as a bar in the way provided in Section 13, if the conditions mentioned in Clauses (a), (b), (c), (d), and (e), or any of them be present.

12. The first of these is, if the judgment has not been given on the merits of the case.

13. It was not so given in the present instance, but on the default of defendants 1 and 5.

14. The judgment therefore is not a bar in the sense of Section 14.

15. If it were a bar, it would only have operation as a bar to a suit against the same parties, and plaintiffs would not be concluded by it as against the defendants 2, 3, 4, and 6.

16. But Section 14 in providing by implication that a foreign judgment shall be a-bar in certain cases means that it shall be a bar in such cases to a suit upon the same cause of action, but does not mean that it shall be a bar to a suit upon the judgment.

17. The suit appears to have been wrongly treated as a suit upon the same cause of action as that on which the foreign judgment was based, whereas it is a suit upon the foreign judgment, and to this Section 14 does not apply.

18. A foreign judgment may be presented to the Court in two ways, either as the basis of an action upon the obligation of the foreign judgment itself, i. e., the duty to obey the judgment, or as a bar to a suit upon the same cause of action as that upon which the foreign judgment was founded.

19. Where a suit is brought upon a foreign judgment, you cannot apply the rules in Section 14, because from their position in the Code, they are analogous to those of Section 13, which was framed to prevent suits being vexatiously brought between the same parties on the same cause of action, or on a matter which has been the subject of a finding in a former suit between the same parties.

20. The duty to obey the foreign judgment is a new and separate cause of action.

21. As regards suits on foreign judgments, the Court would apply the same rules as would be applied to such suits in English Courts.

22. Now this is clearly a suit on a foreign judgment as far as first and fifth defendants are concerned. As respects the other defendants, it may be intended to be so, but the judgment cannot be binding on them.

23. There seems to be nothing in the plaint to countenance the view taken in the Subordinate Judge's Court that the suit either as regards first and fifth defendants, or as regards the other defendants was so framed as to warrant the Court in regarding it as a suit upon the original cause of action, which towards the end of the plaint is distinctly stated to have arisen at the close of June 1879, which corresponds with the date of the foreign decree and not with that of the obligation sued on in the foreign suit.

24. On the assumption that it was intended to sue second, third, fourth and sixth defendants on the original cause of action, there would then be two separate causes of action joined against two separate sets of defendants which the Civil Procedure Code does not permit of, and if that assumption were correct, the suit as against them would be rightly dismissed. The question then whether (one suit having been already brought on the original cause of action against first and fifth defendants), it is allowable to the plaintiffs to bring a. second suit on that cause of action against second, third, fourth, and sixth defendants alleged to be partners or undivided relations of first and fifth defendants, would not arise in the present suit.

25. Again viewing the suit as what it purports to be, a suit upon a foreign judgment as against all the defendants, it seems clear that there can be no duty cast upon second, third, fourth, and sixth defendants to obey a foreign judgment to which they were not parties.

26. Upon this view also, therefore, the suit was properly dismissed as against them.

27. First and fifth defendants have not appealed, and we are not at liberty therefore to consider the propriety of that part of the Subordinate Judge's decree, which recognizes the right of the Kandy Court to bind immovable property in British India in certain circumstances.

28. I would dismiss the appeal with costs.

Kindersley, J.

29. I agree.


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