1. Appellant sued the respondent in the District Munsif's Court at Negapatain for the recovery of Rs. 1,031-13-10 as due to him from respondent under a decree obtained by appellant in the French Court at Karikal. The District Munsif gave appellant a decree for the whole amount, but on the defendant's appeal the Subordinate Judge modified the decree by disallowing the present appellant's claim to a sum of Rs. 700, which had been awarded as damages.
2. Hence the present appeal with regard to this sum of Rs. 700, while respondent has objected under Section 561 to the rest of the decree on the ground that the decree of Karikal Court was a nullity in consequence of its being passed against one who was a British subject over whom the French Court had no jurisdiction.
3. First, as to the appeal, there can be no doubt that the Subordinate Judge was right in disallowing the Rs. 700 claimed as damages, which were altogether prospective at the time when the suit was instituted in the Karikal Court and as to which no evidence was adduced as to their having been actually incurred. The appeal must, therefore, be dismissed with costs in any case.
4. The objection filed by respondent questions the validity of the entire decree as passed without jurisdiction against a foreigner, non-resident in French territory.
5. As observed in the recent judgment of the Privy Council in Gurdyal Singh v. Rajah of Faridkote L.R. 21 IndAp 171 : I.L.R. 22 Cal. 222 'Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory, while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory and it may be exercised over moveables within the territory; and, in questions of scatus or succession governed by domicil, it may exist as to persons domiciled, or who, when living, were domiciled within the territory.... No territorial legislation can give jurisdiction which any foreign Court ought to recognize against foreigners, who owe no allegiance or obedience to the power which so legislates.' Consequently, 'in a personal action...a decree pronounced in absentem by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity.'
6. The question for consideration in the present case is, therefore, did the defendant submit himself to the jurisdiction of the French Courts? It appears that he employed a vakil to defend the suit in the Court of First Instance, but on the case coming on for hearing the vakil stated he had no instructions, and consequently a decree was passed as prayed for by plaintiff, apparently without any evidence being taken. Subsequently, defendant applied to the French Courts to have the ex parte decree set aside and a decree to be given on the merits. This application appears to have been acceded to, but on the case coming on for hearing, the order so passed in defendant's favour was set aside on the ground that the application was barred as not having been made within eight days 'of the notice of the decision.'
7. The result is that the defendant had no hearing in the French Courts and the mere fact of his having employed a vakil is not sufficient to justify our holding that the decree was not passed in absentem.
8. Had defendant been allowed a hearing arid the case then decided against him, we should have held following Kandoth Mammi v. AbduKalandan 8 M.H. C.R. 14 and Fazal Shau Khan v. Gafar Khan I.L.R. 15 Mad. 82 that having taken the chance of a judgment in his favour, he could not now, when an action is brought against him on the judgment, take exception to the jurisdiction; but on the facts of the present case we find that the defendant is not precluded from pleading want of jurisdiction in the French Court which passed the decree.
9. Allowing this objection of the respondent, we direct, in supersession of the decree of both the Courts below, that plaintiff's suit be dismissed and that he do pay defendant's (respondent's) costs throughout including the costs both of the appeal to this Court and of the objections filed under Section 561 of the Code.