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Rama Aiyar and anr. Vs. Krishna Patter - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in32Ind.Cas.597
AppellantRama Aiyar and anr.
RespondentKrishna Patter
Cases ReferredHarchand Panaji v. Gulabchand Kanji
Excerpt:
civil procedure code (act v of 1908), sections 13(a) and 44--application for execution of a foreign decree, when allowed--competency of foreign court's jurisdiction, how determined--voluntary submission, effect of. - - 620, are clearly opposed to parry & co......but the learned judge who decided the case on the original side referred on the point to general steam navigation co. v. guillou 11 m. & w. 877 ; 152 e.r. 1061 and to schibsby v. westenholz 6 q.b. 155. the dicta in general steam navigation co. v. guillou 11 m. & w. 877, on which the learned judge relied, were questioned in schibsby v. westenholz 6 q.b. 155 which is rather against the view taken by him, as in that case the question on which the court of queen's bench decided to express no opinion was as to the effect of the appearance of the defendant, where it is so far not voluntary that he only comes in to try and save some property in the hands of the foreign tribunal', rather implying that at any rate, where there was no property in the bands of the foreign tribunal appearance.....
Judgment:

1. We think that Parry & Co. v. Appasami Pillai 2 M. 407 must be overruled. No authorities are cited in the judgment of the Appellate Court, but the learned Judge who decided the case on the original side referred on the point to General Steam Navigation Co. v. Guillou 11 M. & W. 877 ; 152 E.R. 1061 and to Schibsby v. Westenholz 6 Q.B. 155. The dicta in General Steam Navigation Co. v. Guillou 11 M. & W. 877, on which the learned Judge relied, were questioned in Schibsby v. Westenholz 6 Q.B. 155 which is rather against the view taken by him, as in that case the question on which the Court of Queen's Bench decided to express no opinion was as to the effect of the appearance of the defendant, where it is so far not voluntary that he only comes in to try and save some property in the hands of the foreign Tribunal', rather implying that at any rate, where there was no property in the bands of the foreign Tribunal appearance there would amount to submission. The later English cases referred to in the order of reference and in Veeraraghara Iyer v. Muga Sait 26 Ind. Cas. 287; 1 L.W. 887; (1915) M.W.N. 162, including the recent decision of the Court of Appeal in Harris v. Taylor (1915) 2 K.B. 580; 84 L.J.K.B. 1839 as also Harchand Panaji v. Gulabchand Kanji 26 Ind. Cas. 265; 16 Bom. L.R. 620, are clearly opposed to Parry & Co., v. Appasami Pillai 2 M.k 407 which must be overruled. That is sufficient to dispose of the reference, as the facts of the present case are identical.


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