1. This is an appeal from the decision of Bake-well, J. on the original side giving judgment for the plaintiff in a suit on a foreign judgment obtained by the plaintiff against the defendant in the High Court in England. The defendant pleaded among other things that the English Court had. no jurisdiction, and that the case was not decided by the English Court on the merits. Bakewell, J. overruled both the defences and gave the plaintiff a decree on the judgment sued on.
2. It appears from the certified copy of the English judgment filed by the plaintiff that the defendant was ordered to answer interrogatories and failed to do so, and that therefore it was ordered that his defence should be struck out and. that he should be placed in the same position as if he had not defended, and that the plaintiff should be at liberty to sign judgment against him for 425-17s. 2d. the amount claimed and costs and that judgment was signed accordingly.
3. Now in this state of things the first question that arises is whether a judgment obtained in this manner was a judgment not given on the merits of the case within the meaning of Section 13(b) of the Code of Civil Procedure, in which case it is not to be conclusive upon the parties in a subsequent suit. Bakewell, J. has held that it must in the circumstances be taken to have been given on the merits, but with great respect we are unable to agree with him. We cannot see how a case, in which the defence, or to use our phraseology, the written statement of the defendant was struck out and he was not permitted to go into the merits at the trial can be said to have been decided on-the merits. In The Delta (1876) 1 P.D. 393 , Sir Robert Phillimore overruled a plea of res judicata by reason of a foreign judgment on two grounds, one, that the foreign judgment had not been pronounced when the English suit was instituted and that it was therefore merely a case of Us alibi pendens and the second, that the foreign judgment ' not having been given on the merits of the case but on matter of form only ' could not be set up as a bar to a decision on the merits. A foreign judgment passed in default of appearance was there treated as not being a decree on the merits, as also Gorell Barnes, J., in The Challenge and Due Daumale (1901) P. 41. It does not seem to us to make any difference whether the default was to enter appearance or to answer inter-rogatories when the result of not answering them was to put the defendant in the same position as if he had never entered appearance. There is however even more direct authority. In Haigh v. Haigh (sic) 31 Ch. D. 478, in refusing to set aside a judgment signed, as the judgment sued on was, after the defence had been struck out for failure to answer interrogatories, Parson, J. said that he had the strongest disinclination that any case should be decided otherwise than upon its merits, but that in the circumstances he could not set aside the judgment. And in Farden v, Richter (sic) 23 Q.B. D. 124, the Master and the Judge at chambers set aside a judgment obtained in this way on the default of the defendant to answer interrogatories, and the Court of Appeal restored the judgment on the ground that the affidavit of the defendant in support of the motion to set aside the judgment did not show that he had a defence on the merits. These cases which apparently were not cited before the learned judge appear to us to show that a judgment obtained in , such circumstances as the present judgment cannot be considered to have been decided upon the merits.
4. It has next to be considered how this finding effects the present case. This is a suit on the foreign judgment and not on the original cause of action as appears both from the plaint and the issues; and it is now well settled that in such a suit the cause of action is the legal obligation to satisfy a foreign judgment which complies with the requisite conditions. This was so ruled by Phear and Bayley, JJ. in Heera Monee Dossi v. Promothonath Ghose (1867) 8 W.R. 32, citing the judgment of Parke B. in Williams v. Jones (1845) 13 M.& W. 628, and is in accordance with all the later authorities in England. Such a foreign judgment under the terms of our law is not conclusive unless the case be decided on the merits, and a judgment that is not conclusive for this reason cannot of itself constitute a cause of action. Even before the introduction of the statutory provision in the Code of 1877 that foreign judgments not given on the merits should be no bar to a fresh suit here, it had been ruled in Sreehuree Bhukshee v. Gopal Chunder Samunt (1871) 15 W.R. 500, citing Story's Conflict of Laws that foreign judgments must in order to be receiv-ed, finally determine the points in dispute and must be adjudications on the merits. Whether or not this latter statement be in accordance with principle or with recent decisions in England it has been accepted by the legislature and embodied in the Code and we are bound to give effect to it. The provisions of the Code of 1877 expressly dealt only with foreign judgments as a bar to a suit and not as constituting a fresh cause of action, It would however be anamolous that different rules as to the recognition of foreign judgment should apply according as it is set up as a bar to a fresh suit or as a fresh cause of action; and the provision which was added to Section 14 by Act VII of 1888, giving the court's power to inquire into the merits of the case in suits brought on foreign judgments of certain specified courts is a clear indication that the general provisions of S. 14 were considered applicable to suits on foreign judgments as well as to foreign judgments set up in bar to a fresh suit. This question is very fully discussed in Mr. Hukim Chand's 'Res judicata' where the same conclusion is come to. We must therefore hold that the plaintiff is not entitled to sue on the foreign judgment in this court as it was not a decision on the merits.
5. In this view of the case it is unnecessary to consider whether the judgment sued on was the judgment of a court of competent jurisdiction for the purposes of Section 13 of the Code by reason of its having been passed in the exercise of jurisdiction conferred on the High Court in England pursuant to an Act of the Imperial Parliament, Moazzim Hossein Khan v. Raphael Robinson I.L.R. (1901) C. 641. The utility of such a suit is no doubt much impaired by the decision we have come to, but this is not perhaps to be regretted, as but for the fact that the authority conferring jurisdiction on the High Court in England is the Imperial Parliament to which we are subject, no such suit would lie here for the, reasons given by their Lordships of the Judicial Committee in the Faridkote case (1894) I.L.R. 22 C. 222 (P.C.) The precise point decided in Moazzim Hossein Khan v. Raphael Robinson I.L.R. (1901) C. 641 might come before the courts in England if a defend-ant resident in England were sued thereupon a judgment obtained in one of our High Courts under clause 12 of the Letters Patent which are issued under an Imperial Statute but no such case has yet arisen. In the result the appeal will be allowed and the suit dismissed with costs throughout.