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Gudementla China Appalaraja Vs. Kota Venkatasubba Rao - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported in(1946)1MLJ66
AppellantGudementla China Appalaraja
RespondentKota Venkatasubba Rao
Cases ReferredIn Muhammad Moideen v. Chinthamani Chettiar
Excerpt:
- - on the other hand, the above mentioned decision of the privy council as well as other decisions holding that decrees of the foreign courtpassed ex parte were not conclusive were distinguished by the learned judges on the ground that in the case before them, there was a controversy......petition had been filed. 2. the only point for determination in this petition is whether the decree passed by the yanam court can be regarded as a decision given on merits within the meaning of section 13 which is in these terms:a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title.3. one of the exceptions to this rule is clause (b) ' except where it has not been given on the merits of the case.' in muhammad moideen v. chinthamani chettiar : (1929)56mlj547 . the decree of the foreign court was based on a joint representation by the plaintiff and defendant that if they did not settle their dispute by a certain date the suit shall be.....
Judgment:

Shahabuddin, J.

1. The petitioner was the defendant in O.S. No. 146 of 1942, filed by the respondent in the Court of the District Munsiff of Cocanada. The case of the respondent was that the petitioner who is his brother-in-law, agreed to lend him Rs. 525 on security of his lands in Yanam which is in French territory. Under the French Law, the immoveable properties in French territory can be made liable only under a decree obtained in French Courts. The petitioner and respondent therefore proceeded to Yanam and obtained a consent decree from the Sub-Court of Yanam to the effect that the respondent owed the petitioner a sum of Rs. 525 and agreed to pay the same with interest at 8 per cent, per annum within a period of two years. But as a matter of fact the petitioner had by that time paid the respondent only Rs. 100 and though he promised to pay the entire balance in Cocanada, he paid him only Rs. 25. The respondent therefore claimed the balance with interest mainly as damages for breach of a contract and alternatively on the basis of specific performance of a contract to lend. The petitioner contested this claim. His case was that he had lent the respondent Rs. 500 on a promissory note and that when he pressed for the repayment of this amount, the respondent agreed to suffer a decree in the French Court in Yanam and on their going to that Court a decree in the petitioner's favour was passed. It was contended that in view of that decree, the claim of the respondent was barred under Section 13, Civil Procedure Code. Other contentions also were raised and although evidence had been adduced on all the issues, the learned District Munsiff without going into the merits dismissed the suit on a preliminary point regarding the effect of the decree of Yanam Court. He held that the decree was conclusive in the matter relying on the decision in Muhammad Moideen v. Chinthamani Chettiar : (1929)56MLJ547 . On appeal the learned Subordinate Judge differed from the District Munsiff and considered that the above decision did not apply to the facts of the present case. He therefore remanded the suit for disposal on merits. It is against this order that this revision petition had been filed.

2. The only point for determination in this petition is whether the decree passed by the Yanam Court can be regarded as a decision given on merits within the meaning of Section 13 which is in these terms:

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title.

3. One of the exceptions to this rule is Clause (b) ' except where it has not been given on the merits of the case.' In Muhammad Moideen v. Chinthamani Chettiar : (1929)56MLJ547 . the decree of the foreign Court was based on a joint representation by the plaintiff and defendant that if they did not settle their dispute by a certain date the suit shall be decreed as prayed for. It is argued that the present case is a similar one and as the respondent consented to the decree in question being passed, that decree should be considered as having been given on the merits of the case. It is therefore contended that Clause (b) of Section 13 does not apply. On behalf of the respondent it is argued that for the application of Section 13 it is necessary that there should be a controversy. Reference in this connection is made to the decision of the Privy Council in Keymer v. Viswanatham Reddi (1916) 32 M.L.J. 35 : L.R. 44 IndAp 6 : I.L.R. 40 Mad. 112 . The decision in Muhammad Moideen v. Chinthamani Chettiar : (1929)56MLJ547 is distinguished on the ground that in that case there was a controversy unlike the present case.

4. I have been through these decisions and in my opinion the contention of the respondent has to prevail and this petition must be dismissed. In Keymer v. Viswanatham Reddi (1916) 32 M.L.J. 35 : L.R. 44 IndAp 6 : I.L.R. 40 Mad. 112 the decree of the English Court had been passed ex parte on the defence having been struck off because the defendant did not answer the interrogatories. It was held that to that decree Section 13 (b) applied. In that connection, their Lordships observed that that provision

Refers to those cases where for one reason or another the controversy raised in the action has not, in fact, been the subject of direct adjudication by the Court.

5. From this observation and the language of Section 13 it would appear that for a decree of a foreign Court to be conclusive there should be a controversy and. an adjudication thereon. In Muhammad Moideen v. Chinthamani Chettiar 2, the defendants had appeared and filed a written statement and an issue had been raised with regard to the plea taken by him. But when the case came on for trial, the defendants and plaintiffs filed a joint petition to the effect that the case be postponed for three months with a view to settlement and that if it was not settled, judgment be entered for plaintiffs as prayed for with costs. After the period of three months expired the suit was called. The defendants were absent and the foreign Court ordered that the suit be decreed in terms of the order passed on the joint petition already referred to. It was held that Section 13 (b) did not apply. There is nothing in this decision to indicate that for the application of Section 13 controversy is not necessary. On the other hand, the above mentioned decision of the Privy Council as well as other decisions holding that decrees of the foreign Courtpassed ex parte were not conclusive were distinguished by the learned Judges on the ground that in the case before them, there was a controversy. But in the present case there was no controversy. What happened in this case was that both the petitioner and the respondent went to the Yanam Court with a drafted compromise and the decree in question was passed on the strength of that compromise. Therefore, when they went to that Court, they had no dispute and there was nothing for the Court to decide. The decree appears to have been given mechanically in accordance with a prescribed rule. It was in effect a mere recognition by a Court of an arrangement already arrived at between the parties. In these circumstances, it cannot be said that the decree of the Yanam Court was a decision on merits.

6. The petition is therefore dismissed with costs.


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