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(Neyna Moona Kavanna) Muhammad Moideen and ors. Vs. S.K.R.S.K.R. Chinthamani Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad469
Appellant(Neyna Moona Kavanna) Muhammad Moideen and ors.
RespondentS.K.R.S.K.R. Chinthamani Chettiar and ors.
Cases ReferredBradshaw v. M. Mullan
Excerpt:
- - this is not, therefore, a case of non-appearance nor a case of a decree being passed on account of failure to comply with a provision of law. the judgment of a foreign court creates a debt like any other judgment and a debt is prima facie assignable it merely embodies the obligation of the defendants. in the result, both the points fail and the appeal is dismissed with costs......order of 16th march 1917.2. the present plaintiffs also obtained an assignment of the share in the ceylon decree belonging to plaintiff 2 therein and now sue to recover the whole of the amount of that decree.3. two objections are taken now by the learned advocate for the appellants. the first objection is that the judgment of the court of ceylon is not conclusive because it has not been given, on the merits of the case : vide section 13 (b), civil p.c. he relied on the following decisions: mahomed kasim & co. v. seeni pakir a.i.r. 1927 mad. 265 keymer v. viswanatham reddi a.i.r. 1916 p.c. 121 and a. n. abdul rahiman v. j.m. mahomed' ali rowther a.i.r. 1928 rang. 319. in the first of these cases, the penang court passed a judgment against the defendant as he did not appear, according to.....
Judgment:

Ramesam, J.

1. This appeal arises out of a suit on a foreign judgment. The lower Court granted a decree. The defendants appeal. The plaintiffs-respondents are members of the S.K.R.S.K.B. firm. This firm acting through their agent Nachiappa Chetti and another A.V.R.V. Andappa Chetti filed a suit in the Court of the District Judge of Colombo, No. 46088. When the case came on for trial, 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 settlement and that if not settled, judgment be entered for plaintiffs as prayed for with costs less Rs. 50 and that the property mortgaged with the plaintiffs be sold by Messrs. A. Y Daniel and Sons, Licensed Auctioneers forthwith. This was on 16th March 1917. The case accordingly stood over for 18th June. On that day, the case was called on again and the District Judge passed this order:

Case called. Mr. Somasundaram for plain-tiff states that the case has not been settled. The defendant and his proctor are absent, Enter decree in terms of the order of 16th March 1917.

2. The present plaintiffs also obtained an assignment of the share in the Ceylon decree belonging to plaintiff 2 therein and now sue to recover the whole of the amount of that decree.

3. Two objections are taken now by the learned advocate for the appellants. The first objection is that the judgment of the Court of Ceylon is not conclusive because it has not been given, on the merits of the case : vide Section 13 (b), Civil P.C. He relied on the following decisions: Mahomed Kasim & Co. v. Seeni Pakir A.I.R. 1927 Mad. 265 Keymer v. Viswanatham Reddi A.I.R. 1916 P.C. 121 and A. N. Abdul Rahiman v. J.M. Mahomed' Ali Rowther A.I.R. 1928 Rang. 319. In the first of these cases, the Penang Court passed a judgment against the defendant as he did not appear, according to the procedure of that Court. It was held that that judgment is not conclusive in British Indian Courts. The same view was taken in A. M, Abdul Rahiman v. J.M. Mahomed Ali Rowther A.I.R. 1928 Rang. 319 where it appears that there is a similar procedure according to an Ordinance of Singapore similar to the Ordinance in Penang. In Keymer v. Viswanatham Reddi A.I.R. 1916 P.C. 121 the former judgment was that of an English Court and the judgment was given on. the ground of defendant's refusal to answer certain interrogatories and there was no trial. It was held by the Privy Council that the first judgment is not a bar. But. all these cases are distinguishable from the present case. In the present case, the defendants appeared. They filed their written statement and raised their plea and an issue was framed according to the plea. They had to prove that they made certain payments of interest. When the case came on for trial, they along with the plaintiffs filed a joint petition to the effect mentioned above. This is not, therefore, a case of non-appearance nor a case of a decree being passed on account of failure to comply with a provision of law. The defendants appeared and deliberately chose not to insist on their plea-and not to adduce evidence of it. Mr. Rangachariar relied on Spencer Bower on Res Judicata. p. 25, where it is observed 'that a decision cannot be called a 'judicial decision,' which does not purport to embody any consent to an existing judgment, but merely records an undertaking by a party to allow judgment to be signed' if at a future date he fails to comply with certain conditions.'

4. Now as already observed this is not a case of failing to comply with certain conditions. The case in Bradshaw v. M. Mullan [1920] 2 Ir. R. 412 is also relied on. This decision is really against the appellants. Towards the end of p. 424, Lord Shaw of Dunfermline observes:

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.

5. 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 the judgment of Lord Shaw. We are, therefore, of opinion there is no substance in the first point.

6. The second point argued is that the assignment of the decree by plaintiff 2 in the Ceylon Court ought not to be recognized in this Court because under Section 339, Ceylon Ordinance, that Court had not recognized the assignment and substituted the name of the assignee in the place of the assignor. The short reply to this argument is that the Ceylon Ordinance does not bind us and we have nothing to do with it. The judgment of a foreign Court creates a debt like any other judgment and a debt is prima facie assignable It merely embodies the obligation of the defendants. There is nothing to prevent, us from recognizing the assignment. It is said that there is danger of the assignor executing the decree while the decree of this Court is in force. Mr. Varadachariar, the learned advocate for the respondents, has offered to indemnify the appellants from any injury caused to them by any execution taken of the Ceylon decree by the assignor. It is enough to record this undertaking in this judgment and it is unnecessary to do anything more. In the result, both the points fail and the appeal is dismissed with costs.


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