1. Before finally disposing of the case, we must ask the District Judge to return a finding on the 2nd issue which was decided in favour of the defendant by the District Munsif and on which the District Judge expresses no opinion, Finding must be on the evidence on record and must be submitted within six weeks; and seven days will be allowed for filing objections.
In compliance with the order contained in the above judgment, the District Judge of Ramnad at Madura submitted the following.
1. In this appeal the High Court has called for a finding on the following issues: 'Whether the foreign judgment was obtained by plaintiff through collusion and fraud.'
2. The defendant was served with summons in this suit on 11th February 1917, but did not file his written statement for the next two hearings which were fixed for the 15th and 22nd March respectively. The District Munsif, therefore, examined him on the 22nd Marsh and in the deposition then given by him, he made no allegation of fraud or collusion. But in the written statement filed by him on 19th April 1917 he alleged for the first time that his agent had yielded to the plaintiff's evil advise and that they had collusively and fraudulently got this ex parte decree passed against him. At the trial when the plaintiff was examined on tie 21st November, she was not asked a word to suggest her collusion or even her acquaintance with the defendant's agent and when the defendant himself was examined on the same day, he admitted that his agent had written to him to go over to Penang, that he did not go as he had no time and that the agent bad also written to him after the suit was decided ex parte. An agent engaged to watch the case is not expected to do more. From the nature of the ease, it is apparent that the defendant had to give his own evidence in denial of the loan averted by the plaintiff and so his agent wrote to him to go over to Penang. But he did not go. It is not shown how his agent could have disproved (he claim in the absence of the defendant; and unless it is shown that this agent had the necessary evidence available with him and had not made use of it, no default can be imputed to him and much less any collusion between him and the plaintiff. The District Munsif thinks that there must have been collusion as the plaintiff's cage was a false one. I cannot accept this view. If the agent had failed in his duty and had colluded with the plaintiff, the defendant would not have omitted to mention it in his first deposition. The subsequent allegation made in the written statement is an after-thought and is made in view of Clause (e) of Section 13 of the Code of Civil Procedure. I, therefore, find the issue against the defendant and in the negative.
This second appeal came on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial.
2. Mr. K.V. Krishnaswami Aiyar, for the Appellant.--The foreign judgment sued on does rot bind the defendant under Section 13, Clause (b), Civil Procedure Code, It cannot be treated as having been passed on the merits Within the meaning of the clause. The defendant was absent at the hearing and his Solicitor said that he had no instructions. What followed was the veriest formality of procedure in the law Courts, The plaintiff was formally examined and decree passed on that evidence. The same procedure is followed where the defendant is ex parte. The judgment must be treated as judgment by default. It WAS given on matters of form. See The Delta (1876) 1 P.D. 393
3. Mr. A. Krishnaswamy Aiyar, for the Respondent.--The suit became, in law, a con tested one after the pleadings were filed. Here there was no default of appearance by the defendant It must be taken that ho was unable to substantiate the allegations in the written statement and plaintiff, having proved his claim, obtained a decree, It is, therefore, a judgment on the merits and not on matters of form. See Keymer v. Viswanatham Reddi 38 Ind. Cas. 683 and Cole v. Harper 50 Ind. Cas. 780 . The allegations of fraud have also been found against.
4. The defendant contested the suit in the Court of the Straits Settlements by filing a written statement But on the date of final hearing his Solicitor is Said to have stated that he had no instructions. Thereupon the evidence of the plaintiff was taken and judgment was given in her favour.
5. The only question on the merits was whether the defendant had borrowed a jewel of the plaintiff and failed to return it or to account for its value. The evidence of the plaintiff bore out her case on this point, and the judgment is apparently based on that evidence and must be taken to be a decision on the merits. Section 13 of the Civil Procedure Code lays down that a foreign judgment must be held to be conclusive if it is given on the merits of the case. But it is argued on behalf of the appellant by Mr. K.V. Krishnaswami Aiyar that we ought to treat the judgment in this case as if it was a judgment by default. But upon the facts it is difficult to say that this contention is made out. He relied upon the ruling of Sir Robert Phillimore in The Delta (1876) 1 P.D. 393. It is sufficient to say that the learned President of the Probate Division mainly based his decision on another point, and the dictum only amounts to this that the foreign judgment in that case was regarded as on matters of form. That cannot be predicated of the judgment in this case. The reasoning of the Privy Council in Keymer v. Viswanatham Reddi 38 Ind. Cas. 683 implies that this judgment must be taken to be on the merits in accordance with the provisions of the Civil Procedure Code and should be held to operate as res judicata. In that case, the defence had been struck out for failure of the defendant to answer interrogatories and the judgment in such a case is evidently not a judgment on the merits. There is direct authority on this point against the appellant in a ruling of the Allahabad High Court in Cole v. Harper 50 Ind. Cas. 780 . The contention of the appellant on the question of fraud and collusion must also be held to be unfounded. The District Judge has given a finding on the point to the effect that the judgment was not obtained by fraud or collusion, and that finding has not been impeached before us.
6. The result is that the appeal must be dismissed with costs.