Kuppuswami Aiyyar, J.
1. The appellant is the legal representative of the judgment-debtor in O.S. No. 323 of Andu IIII on the file of the Principal District Munsiff's Court, Trivandrum. The respondent is the decree-holder. The appeal arises out of proceedings in execution of the decree in the suit stated above. The defendant in the suit was not a resident of Travancore State and it has been held by both the lower Courts that the suit was not one cognizable by the Trivandrum District Munsiff's Court, against the defendant therein and the plea raised by the legal representative of the defendant was that the decree was passed without jurisdiction and therefore ought not to be executed. Both the Courts have found that there was submission to the jurisdiction and therefore the decree was validly passed and could be executed. It is as against that order this appeal has been filed.
2. It has been held by a Bench of this Court in Narappa Maicker v. Govindaraja Naicken (1934) 67 M.L.J. 187 : I.L.R. Mad. 824 that the question as to whether there was submission to the foreign Court is a question of fact. Since the lower Courts have found in this case that there was submission by the defendant, it is not open to me in second appeal to go behind that finding. The suit was filed in respect of a chit fund conducted by the defendant as a stake holder who was living in Srivaikuntam in the Madras Presidency. The plaintiff had taken half a chit and was a successful bidder and he sued to recover the balance of the chit amount due to him. The suit was filed as stated above in the Trivandrum District Munsiff's Court and the defendant did not appear in that Court. Evidence had to be let in and therefore the plaintiff got a commission issued to the Srivaikuntam District Munsiff's Court in the Tinnevelly District to have the defendant in the suit summoned and examined as a witness. The defendant appeared in the Srivaikuntam Court, pleaded that the District Munsiff of Trivandrum had no jurisdiction to try the suit and he also protested against any enquiry being made by his being examined as a witness in that case. The District Munsiff of Srivaikuntam held that the question as to whether the Trivandrum Court had jurisdiction or not was not going to be decided by him and that he had jurisdiction as a Court to which the papers were sent for examination on commission to call upon the defendant who was within his jurisdiction and examine him and that he had to answer questions. At the same time the District Munsiff of Srivaikuntam pointed out that this will not amount to submission to jurisdiction. The defendant who had to be examined on commission if he had merely answered the questions put to him by Court would not have done anything voluntarily to charge him with having submitted to the jurisdiction of the Court. But he engaged a Counsel. He objected to the questions put to him and got orders passed thereon by the Court and finally got himself cross-examined and gave statements which were likely to affect the merits of the case. One of the defences raised by him was that the suit was not maintainable unless security bonds had been obtained and this was elicited not in chief examination but in cross-examination. It is therefore a case in which it cannot be said that in the enquiry before the Commissioner which the defendant would have certainly known would go to the District Munsiff of Trivandrum and was likely to influence him in the decision of the case, the defendant did not make a voluntary act. It was a voluntary act and the question is whether such a voluntary act would amount to submission to jurisdiction. In Dicey's Conflict of Laws 5th edition at page 407 this question is dealt with thus:
A person who voluntarily appears as defendant in an action submits himself to the judgment of the Court so that he cannot afterwards dispute its jurisdiction. A submission is, however, held to be voluntary not only when the defendant appears and pleads to the merits of the case without protesting against the jurisdiction, but also when, although protesting, he also pleads to the merits and even if he merely appears in order to protest against the jurisdiction. The ground on which such an appearance as the last can be deemed voluntary is that there is no compulsion on a defendant to recognise in any way the jurisdiction of a Court which has not, under the rules dealt with in this Digest, jurisdiction over him if, therefore, he chooses to appear and to object to the jurisdiction of the Court, he involves himself in the necessity of submitting to that jurisdiction, if the plea to the jurisdiction should be disallowed by the Court. Nor does it make any difference what the motive of his appearance may be. An appearance is equally voluntary whether it be motived by the fact that the defendant has property within the jurisdiction of the Court on which execution may be- or has actually been--levied in the event of judgment going against him by default, or even by the fact that, though he has no property within the jurisdiction, his business often takes him within the jurisdiction so that the judgment of the Court might be made effective against him.
It is thus clear that even though a man protests against the jurisdiction of a particular Court and pleads that the Court had no jurisdiction and does not submit expressly, still if he does any act which is likely to place his view point before the trial Court and if he is likely to be benefited by a decision in his favour, it must be presumed that he voluntarily did an act which would amount to submission to the jurisdiction of Court. In this case there was no obligation on the part of the defendant to engage a Counsel or to take part in the proceedings. He could be prosecuted only if he refused to answer questions put to him. The defendant not only engaged a Counsel but asked him to object to the several questions which were put to him. He even got himself cross-examined and in the course of his cross-examination raised a plea which if it had been accepted by the Court would have ended in the dismissal of the suit. It is therefore clear that this is a case in which there was a voluntary act done by the party in the trial of the suit and before the decree was passed in which the defendant took the risk or a chance of getting a decision in his favour. It is therefore a case in which the defendant did take part in the proceedings though he did not appear in the Court at Trivandrum. The commission evidence taken in Srivaikuntam was part of the records of the case which was filed in Trivandrum and therefore when he voluntarily gave some materials which formed the records of that case, these facts are enough to indicate or raise an inference that he submitted to the jurisdiction of the Court. Apart from the fact that it is a decision on the question of fact there is also the circumstance that these facts are enough to indicate that he has submitted to the jurisdiction of the Court. I accordingly dismiss the civil miscellaneous second appeal with costs. (Leave to appeal is refused).