OP REFERENCE, the following OPINION of the Court was delivered by
John Wallis, C.J.
11. We think that Parry & Co. v. Appasami Pillai (1880) 2 Mad. 407 must be overruled. No authorities are cited in the judgment of the Appellate Court, but the learned Judge who decided the case on the original side referred on the point to The General Steam Navigation Company v. Guillou (1843) 11 M. & W. 877and to Schibsby v. Westenholz (1870) L.R. 6 Q.B. 155. The dicta in The General Steam Navigation Company v. Guillou (1843) 11 M. & W. 877, on which the learned Judge relied, were questioned in Schibsby v. Westenhalz (1870) L.R. 6 Q.B. 155 which is rather against the view taken by him as in that case the question on which the Court of Quean's Bench decided to express no opinion was 'as to the effect of the appearance of the defendant, where it is so far not voluntary that he only comes in to try and save some property in the hands of the foreign tribunal' rather implying that at any rate where there was no property in the hands of the foreign tribunal appearance there would amount to submission. The later English Cases referred to in the Order of Reference and in Veeraraghava Aiyar v. Muga Seit (1916) 39 Mad. 24, including the recent decision of the Court of Appeal in Harris v. Taylor (1915) 2 K.B. 580, as also Harchand Panaji v. Gulabchand Kanji I.L.R. (1914) 39 Bom. 34, are clearly opposed to Parry & Co. v. Appasami Pillai I.L.R. (1880) Mad. 407, which must be overruled. That is sufficient to dispose of the reference, as the facts of the present case are identical.