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Mohammed Abdulla Vs. P.M. Abdul Rahim - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 4281 of 1984
Judge
Reported inAIR1985Mad379
ActsCode of Civil Procedure (CPC), 1908 - Sections 13, 43, 44A and 47
AppellantMohammed Abdulla
RespondentP.M. Abdul Rahim
Appellant AdvocateP. Shanmugam, Adv.
Respondent AdvocateK. Raghunathan, Adv.
Cases ReferredR. Viswanathan v. Rukn
Excerpt:
.....only badly say that without instituting the suit and without giving the number of the case, the decree-holder obtained the letter of had received the summons. added to that, for reasons best known to him, the judgment-debtor has not tendered his evidence in the box. a2 -the case of the plaintiff was that the defendant borrowed the amount in question on 1st june, 1976 as a friendly loan, promising to pay the same within three months from the date of borrowing and in spite of repeated demands, the defendant failed and neglected to pay the same or any part thereof. this is not a case of a judgment being obtained on the simple ground of non-appearance of the defendant or on his failure to comply with a provision of law. subramaniam, learned counsel for the decree-holder, relied on the..........on 5-12-1981. the petitioner in this revision is the judgment-debtor and the respondent is the decree-holder. the judgment-debtor opposed the execution of the decree referred to above before the district judge of east thanjavur at nagapattinam, where execution was levied, pleading that the decree is not conclusive and it will come within the exceptions under s. 13, sub-cls. (a), (b), (d) and (e) of the c.p.c., hereinafter referred to as the code. the court below has not accepted the contentions of the judgment-de6tor and has directed the execution to be proceeded with. this revision is directed against the orders of the court below.2. mr. p. shanmugam, learned counsel for the judgment-debtor, would put forth his contentions under the following heads and i will deal with them one, by.....
Judgment:
ORDER

1. This revision raises a very interesting point with regard to the executability of a decree passed by a foreign Court. The decree in question is one passed by the Sessions Judge at Kuala lampur in the State of Federal Territory, Malaysia, in Civil Action No. 1935 of 1981 on 5-12-1981. The petitioner in this revision is the judgment-debtor and the respondent is the decree-holder. The judgment-debtor opposed the execution of the decree referred to above before the District Judge of East Thanjavur at Nagapattinam, where execution was levied, pleading that the decree is not conclusive and it will come within the exceptions under S. 13, sub-cls. (a), (b), (d) and (e) of the C.P.C., hereinafter referred to as the Code. The Court below has not accepted the contentions of the judgment-de6tor and has directed the execution to be proceeded with. This revision is directed against the orders of the Court below.

2. Mr. P. Shanmugam, learned counsel for the judgment-debtor, would put forth his contentions under the following heads and I will deal with them one, by one. Firstly, it is contended that the foreign judgment is one not pronounced by a Court of competent jurisdiction and hence, it will come within the mischief of S. 13(a) of the Code. As to when foreign Courts could derive jurisdiction in regard to suits of a personal nature has been recapitulated by a Bench of this Court, consisting of Sankaran Nair and Napier, JJ in Ramanathan Chettiar v. Kalimuthu Pillai, ILR (1914) Mad 163: AIR 1914 Mad 556. The Bench recounted the ratio of Fry, L J., in Rousillon v. Rousillon, (1880) 14 Ch 1 351. That has been reiterated practically six years later by another Bench of this Court, consisting of Ramamurti and Krishnaswamy Reddy, JJ., in R.M. V. V. Achi v. R. A. A. R. Chettiar, : AIR1973Mad141 . The Supreme Court in Moloji Nar Singh Rao v. Shankar Saran, : [1963]2SCR577 has also countenanced the same ingredients as conferring jurisdiction on a foreign Court in respect of action in personam. As per the above pronouncements, the following circumstances would give jurisdiction to foreign Courts :

(1) Where the person is a subject of the foreign country in which the judgment has been obtained; (2) Where he was a resident in the foreign country when the action was commenced and the summons was served on him; (3) Where the person in the character of plaintiff selects the foreign Court as the forum for taking action in which forum he is sued later; (4) where the party on summons voluntarily appeared; and (5') where by an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained. Mr. G. Subramaniam, learned counsel appearing for the decree-holder, would state that the matter would squarely come under circumstances Nos. 2 and 5 on the facts of the present case. The suit before the Sessions Court at Kuala Lampur appears to have been instituted on or about, if not anterior to 28-101981, The second summons in the suit was served on the judgment-debtor on 19-11-1981 by one T. S. Abdul Rahim, who, according to the evidence of the decree-holder examined as P.W. 1, is stated to be the concerned Process Server. Ex. A2 is the photostat copy of the summons issued to the judgment-debtor second time and Ex. A3 is the photostat copy of the affidavit of the Process Server, T. S. Abdul Rahim. Earlier, according to the decree-holder, P.W. 1, after the service of the first summons, the judgment-debtor passed on a letter on 28-10-1981 whereby after acknowledging the receipt of the summons and the statement of claim annexed thereto, he gave consent to take a judgment for the sum of E 13,420.00. Ex. Al is the photostat copy of the said letter. These documents, apart from the evidence of P.W. 1, amply bear out that on the relevant dates, namely, when the borrowing took place on 1-6-1976; when the action was commenced in the foreign country in or about October, 1981; when summonses were served on him twice in Oct.-Nov. 1981 and when he gave the letter of consent, the judgment-debtor was -a resident of Kuala Lampur.

3. The action before the Court at Kuala Lampur in the 5tate of Federal Territory, Malaysia, was an action in personam. May be, the judgment-debtor was not a subject of that foreign country at the relevant point of time, so as to attract circumstance No. 1. But certainly it Was not a case of a casual passage through, or a momentary presence in that foreign country, so as to say it was not a sufficient residence for creating jurisdiction. The judgment-debtor of course put forth a written plea that he came to that foreign country only as a tourist and not as a permanent resident. But he never cared to get into the box and substantiate this plea of his. The evidence placed by the decree-holder is ample enough to draw the inference that at the time when the action began and the summons was served, the judgment-debtor was a resident of that foreign country. Further, we find that as per Ex. At the judgment-debtor after acknowledging the receipt of the summons and the statement of claim, gave consent to take a judgment for the sum of E 13,420.00. This would constitute an agreement to submit himself to the foreign Court in which judgment has been obtained. It is not a case of mere intention oil the part of the judgment-debtor to submit to the jurisdiction of the foreign Court, but it had been translated into action by the passing of the letter of consent prior to the passing of the decree. Of course, Mr. P. Shanmugam, learned counsel for the judgment-debtor, made a strenuous attempt to demonstrate that none of these documents could be relied on. He points out that the photostat copy of the summons, marked as Ex. A2, bears the date 4-11-1981 and it casts a. considerable doubt as to how the letter of consent as per Ex. At would have come to be passed on 28-10-1981, acknowledging receipt of summons. This submission is In ignorance of the evidence of the decree-holder, as P.W. 1, that the letter of consent was passed on by the judgment-debtor on receipt of the first summons, and Ex.A2 is the photostat copy of only the second summons. Nothing has been brought out in cross-examination to discredit the testimony of P.W. 1. Furthermore, the judgment-debtor, in his written pleas, has not disputed his passing on the original of Ex. Al. He would only badly say that without instituting the suit and without giving the number of the case, the decree-holder obtained the letter of had received the summons. As to why he the judgment-debtor, consent by fraud, as if the judgment-debtor, should succumb to such a suggestion of the decree-holder and as to the details of the fraud played by the decree holder, the written pleas of the judgment-debtor are portently silent. Added to that, for reasons best known to him, the judgment-debtor has not tendered his evidence in the box. In the said circumstances, the Court below rightly repelled the contentions put forth on behalf of the judgment-debtor that a fraud had been played by the decree-holder against the judgment-debtor in this behalf. The features discussed above do indicate that circumstances. Nos. 2 and 5 were present to confer jurisdiction with the foreign Court. Under these circumstances, I have to eschew the first ground of attack put forth- by Mr. P., Shanmugam, learned counsel for the judgment-debtor.

4. Secondly, learned counsel for the judgment-debtor would contend that the foreign judgment has not been given on the merits of the case and this would attract Section 13(b) of the Code, It is not a case of a judgment rendered or default of appearance 0f the judgment-debtor without any trail on evidence. In such a contingency, the Full Bench ratio in Mohammed Kassim & Co, v. Seeni Pakir Bin Ahmed : AIR1927Mad265 would govern, where it has been countenanced, following he pronouncement of the Privy Council in Keymer v. Visvanatham Reddi, AIR1916 PC 121 : ILR (1916) Mad 112 : (1916) 32 MLJ 35 and Oppenheim v. Mahomed Haneef, ILR (1922) Mad 496: (1922) 43 MLJ 422: AIR 1922 PC 120 that a judgement given on default of appearance of the defendant on the plaint allegations without any trial on evidence is not a judgment given on merits of the case within the meaning of S. 13(b) of the Code, and a suit cannot be maintained in the British Indian Courts upon such a judgment. The judgment in the present case is a consent Judgment and is based on the letter of consent as per Ex. Al. Mr. P. Shanmugam, learned counsel for the judgment-debtor, would submit that even a consent judgment would not be a judgement on the merits of the case. He would primarily rely on a pronouncement of Shahabuddin, J., in China Appalaraju v. Venkata Subba Rao : AIR1946Mad296 . The learned Judge, after adverting to the observations of the Privy Council relating to S. 13(b) of the Code, in Keymer v. Visvanatharn Reddy, AIR 1916 PC 121: ILR (1916) Mad 112 : h Mad U 35 that, that provision 'refers to those cases where for one reason or another the controversy raised in the action has not, infact, been the subject of direct adjudication by the Court', came to the conclusion on the facts of the case before him that there was no controversy between the parties and there was no adjudication of the same by the Court. In that case, what happed was both the parties went all the way to the Yanam Court with an already drafted compromise and the decree in question was passed on the strength of that compromise. In that context, the learned Judge opined that they had no dispute obviously at any point of time and there was nothing for the Court to decide.

5. The facts of the present case are entirely different. As we could see from the statement of claim annexed to the summons - vide Ex. A2 - the case of the plaintiff was that the defendant borrowed the amount in question on 1st June, 1976 as a friendly loan, promising to pay the same within three months from the date of borrowing and in spite of repeated demands, the defendant failed and neglected to pay the same or any part thereof. Hence, in the date of the suit, the plaintiff was facing a controversy in the sense, the defendant was recalcitrant to honour his obligations to discharge the loan and that obliged him to go to Court. In this connection, I am bound to refer to the pronouncement of a Bench of this Court, consisting of Ramesam and Jackson, JJ in Md. Moideen v. Chinthamani, : AIR1929Mad469 where, on the date of the trial of the suit, both the parties filed a joint application to the effect that the trial of the case be postponed for three months with a view to settle and that if not settled, judgment be entered for plaintiffs as prayed with costs. After the lapse of three months, the matter -was called and the defendant and his proctor were absent and the foreign Court in that case passed a judgment in terms of the joint application countenanced earlier. The learned Judges held that S. 13(b) of the Code is not attracted and the decision is binding on a Court in British India. The learned Judges distinguished the case in Keymer v Visvanatham Reddi, AIR 1916 PC 121:ILR (1916) Mad 112 : (1916) 32 Mad LJ 35 by pointing out that it was a case of judgment of an English Court given on the ground of defendants' refusal to answer certain interrogatories. The learned Judges referred to the following observations of Lord Shaw of Dunfirmline in Bradshaw v. M. Mullan, (1920) 2 Ir R 412 : --

'It is, I am aware, possible to maintain that a judgment by consent has the qualities of a judicium to which I have referred. There are expressions of opinion in some of the numerous English cases upon the subject. It seems to me that such a doctrine may be founded, not upon the judgment pronounced, but upon the consent with all its limits and to all its extent which preceded the judgment: that, in short, you have therefore left the region of strict res judicata and entered the region of a possible wide estoppel.'

After adverting to the above observations, the learned Judges held as follows :

'It does not matter what the principle of recognizing a foreign judgment is, whether it is called res judicata or estoppel but that consent will do as estoppel is clear from tile judgment of Lord Shaw.-

6. S. 13(b) of the Code by itself does not speak about any controversy. The element of controversy-may be relevant only to find out whether the adjudication was oil merits. Even if that test is to be applied, I find that at the relevant point of time, there was in fact a controversy and that only forced the plaintiff to go to court and that controversy was eased out subsequently after the service of summons on the defendant and the defendant passing on the letter of consent. This is not a case of a judgment being obtained on the simple ground of non-appearance of the defendant or on his failure to comply with a provision of law. This is a case of a controversy existing on the date of the suit, which got solved by the judgment-debtor agreeing to take a decree subsequently. Mr. G. Subramaniam, learned counsel for the decree-holder, relied on the pronouncement of the Bench of this Court, referred to above, as well as the pronouncement of the Bench of the High Court of Rajasthan, consisting of Wanchoo. C. J. (as he then was) and Modi, J., in Satya Narain v. Balchand AIR 1955 Raj 59, where the pronouncement of Shahabuddin, J. in China Appalaraju v. Venkata Subba Rao, : AIR1946Mad296 , was rightly distinguished as arising in the peculiar circumstances of that case. The learned Judges countenanced the principle that an ordinary compromise before a foreign Court cannot be held to be not a judgment on merits. Learned counsel for the decree-holder also drew my attention to a pronouncement of Ratnavel Pandian. J., in A. S. No. 194 of 1972, judgment dated 6-11-1978 (M. S. Ponnuswamy v. V. K. T. Periasami Pillai) concisely reported in 1979 T.N.L.J. 60. The learned Judge followed tile decision of the Bench of this Court in Md. Moideen v. Chinthamani : AIR1929Mad469 as well as the decision of the Bench of the High Court of Rajasthan in Satya Narain v. Balchand, AIR 1955 Raj 59. It is true the learned Judge dealt with a case where both the parties appeared. But that need not be decisive. If the procedure adopted by a foreign Court permitted the passing on of a judgment on service of summons duly on the defendant and taking note of a written consent, for a decree by the defendant, it would still be a judgment on merits, having all the qualities of a judgment.

7. Mr. P. Shanmugam, learned counsel for the judgment-debtor, drew my attention to a stray sentence of a single Judge, occurring in Gulalchand v. Vadilal Sarabhai Co., AIR 1950 Kut 78 do not find that the question directly arose before the learned single Judge and I am not able to derive any support from the stray observation for any proposition, contrary to the one countenanced by the Bench of this Court, referred to above. Mr. P. Shanmugam, learned counsel for the judgment-debtor, would also rely on the judgment of Ramanujam, J., in K. M. Abdul Jabbar v. Indo Singapore Traders (P) Ltd., : AIR1981Mad118 in support of the second contention of his. The learned Judge there dealt with a case where the foreign Court proceeded with the matter under summary procedure after refusing leave to defend sought for by the defendant, and in that context, relying on pronouncements to that effect, held that such a judgment is not one tendered on merits. The facts of the present case do not come anywhere near the4acts dealt with by the learned Judge. I do not find that the present case before the foreign Court was one instituted under the summary procedure and that there was either a default on the part of the judgmentdebtor to appear before Court or a declination of leave to defend by that Court. Hence, the second contention also stands eschewed.

8. Thirdly, it was contended on behalf of the judgment-debtor that the proceedings in which the judgment was obtained are opposed to natural justice and further' it has been obtained by fraud. Learned counsel wants to bring the case under sub-ss. (d) and (e) of S. 13 of the Code. The facts placed in the case speak against the judgment-debtor. The decree- holder went into the box to speak about the circumstances under which he obtained the decree before the foreign Court. The concerned documents have been marked through him. They do substantiate that the procedure as prevailing in the foreign court was, in fact, adhered to, and there is no violation of any principle of natural justice or perpetration of fraud as claimed by the judgment-debtor. The plea of fraud has been already found by me to be a puerile and unsubstantiated one. In this context, I would like to keep in mind the principle recognised by the Supreme Court in R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, : [1963]3SCR22 where it has been countenanced that the Court will presume in dealing with a judgment of foreign courts that the procedure followed by that Court was fair and proper. The Court below has adverted to the aspect of fraud and on assessment of the factual materials, has rightly come to the conclusion that the allegation of fraud is absolutely baseless. I am entirely in agreement with the conclusion of the Court below. Once again, I must point out that the judgment-debtor never entered the box to substantiate as to how any principled natural justice stood violated and as to how any fraud was perpetrated on him. Even in the counter-affidavit filed to the execution petition, details of the fraud are not exposed. This speaks against the judgment-debtor and this plea is very baldly projected. Hence, I have to eschew these contentions put forth on behalf of the judgment-debtor.

9. Fourthly, learned counsel for the judgment-debtor would contend that there is a lack of satisfaction of S. 44A(l) and (2) of the Code, in that the document filed before the Court below is not a certified copy of the decree and further, there is no certification with regard to the satisfaction. On the second aspect, I find that there is in fact, Ex. A4, the certificate of non-execution issued by the foreign Court. With regard to the first aspect, I find such a contention was not at all pleaded in the counter-affidavit and equally so, such a contention was not advanced before the Court below. It is too late in the day to permit the judgment-debtor to raise this contention for the first time before this Court and that too, in revision and accordingly, I reject the same.

10. None of the contentions raised on behalf of the judgment-debtor survives and accordingly this revision has to fail and the same is dismissed. I make no order as to costs.

11. Revision dismissed.


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