G. Ramanujam, J.
1. The second defendant in suit No. 2598 of 1975 on the file of the High Court of Republic of Singapore against whom E.P. No. 9 of 1976 has been filed on the file of the District Court, East Thanjavur at Nagapattinam is the appellant herein.
2. The first respondent herein obtained a decree for a sum of 30,000 dollars against the appellant herein and the second respondent in Suit Mo 2598 of 1975 on the file of the High Court of Republic of Singapore on 20th October, 1975. The suit claim was based on an arrangement contained in a deed dated 3rd February, 1975. The first respondent-decree-holder filed E.P. No. 9 of 1976 on the file of the District Court, East Thanjavur at Nagapattinam, for recovery of Rs. 1,09,840 by attachment and sale of the immoveable properties mentioned in the list attached to the execution petition The second respondent herein, who was the first respondent in the execution petition before the Court below remained ex parte. The second defendant, who was the second respondent in the execution petition alone resisted the said execution petition on the following grounds:
(1) that the decree is act one passed on merits;
(2) that the proceedings in which the judgment and decree were obtained were opposed to natural justice;
(3) that the certificate of non-satisfaction by the decree-holder is defective and inadequate;
(4) That there is no reciprocal arrangement under which Singapore decree can be executed in India;
(5) that the exchange value is not correctly stated; and
(6) that the decree sought to be executed is cot one passed by the Judge of the High Court of Singapore, but one by the Deputy Registrar of that Court.
All the said grounds of objection have been considered by the Court below and have been overruled. After overrulling all the objections, the lower Court allowed the execution by attachment and sale of the immovable property to proceed. In this appeal the learned counsel for the appellant does not challenge the findinge of the Court below with reference to all the objections except objection No. 1. Therefore, it is unnecessary to go into the correctness or otherwise of the findings rendered by the Court below with reference to the other grounds apart from ground No. 1.
3. As already stated in ground No. 1 the appellant has contended that the decree is not one passed on merits and, therefore, it cannot be taken to be conclusive under section 13(b) of the Code of Civil Procedure, and, therefore, the decree is in executable by the lower Court, According to section 13 of the Code of Civil Procedure, 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 except among other things where it has not been given on the merits of the case. According to the learned counsel for the appellant as soon as summons were served in the suit, the first and second defendants, the appellant and the second respondent herein, appeared by counsel and affidavits were filed on behalf of both the defendants for leave to defend. But as the leave to defend sought for by the defendants was not given and the Court passed a decree straightway, it was contended by the appellant before the Court below that the decision rendered in the suit by the Singapore High Court was not on merits and, therefore, the judgment cannot be taken to be conclusive under section 13(b) of the Code of Civil Procedure to sustain the execution petition filed by the decree-holder.
4. The first respondent, however, contended before the Court below that the judgment of the Singapore High Court was rend' red after the respondents entered appearance through their counsel in pursuance of the summons and filed their affidavits as evidenced by Exhibits B-1 to B-5 and, therefore, the decision of the Singapore High Court should be taken to be a judgment on merits. The Court below has held that as the judgment of the Singapore High Court was not an ex parte judgment, but a judgment rendered after the defendants appeared before the Court through their counsel and putting their defence in the form of affidavits while seeking leave to defend, the judgment should be taken to be one on merits so as to be conclusive under section 13(b) of the Code of Civil Procedure. The view taken by the Court below has been challenged in this appeal filed by the second defendant.
5. In Isidore Fernando v Thommai Antoni Michael Fernando : AIR1933Mad544 . on almost similar facts this Court held that an ex parts decree under the summary procedure of the Court of Ceylon was not a judgment on merits within the meaning of section 13(b) of the Code of Civil Procedure. In that case a suit was filed on a promissory note for a sum Rs. 1,300 in the District Court of Colombo under the summary procedure (Chapter 52, Ceylon Ordinance No. 2 of 1889) The defendant did not appear to obtain leave to defend, in time, and so an ex parts decree was passed. He then appeared and asked for the matter to be re-opened and for leave to defend the suit. The Court noted as follows:
Leave to defend will be granted on defendant giving security in Rs. 1,390 on or before the 12th January, 1925.
As the security was not furnished by the defendant, a decree came to be passed for the amount claimed in the suit. Later, a suit was filed on the said foreign judgment before the Sub-Court, Tuticorin under section 13 of the Coda of Civil Procedure, as the defendant was then living at Tuticorin. The suit was resisted inter alia on the ground that the foreign decree relied upon in the plaint is net a decree on the merits, and therefore, the suit is not maintainable. The lower appellate Court, however, took a different view. When the matter came to this Court, this Court after dealing with the suits filed under the summary procedure expressed the view as follows:
Not a single decision has been quoted before me in which an ex parte decree obtained under the summary procedure has been held to be one on the merits, whereas an ex parte decree obtained on the regular procedure under section 704 of the Ordinance has been held by the decision of the Full Bench to be not one on the merits.
Ultimately the Court Meld that an ex parte decree obtained under the summary procedure of the Court of Ceylon is not one on merits and that it is not a judgment as is required under section 13 of the Code of Civil Procedure and that a suit based on such an ex parte decree does not satisfy the conditions of section 13(b) of the Code. In this case a distinction was made between a judgment which was required to dispose of a ease finally, according to the usual procedure and a decree to be passed in accordance with clauses (a), (b), (c) of sub-rule (2) of Order 37 and considerable significance was laid on the fact that sub-rule (2) does not speak of a judgment as defined under section 2(9) of the Code of Civil Procedure.
6. This decision has been relied on and followed by a Division Bench of the Rajas-than High Court in O. P. Verma v. Lala Gehrilal and another AIR 1952 Raj 231. In that case a decree had been obtained on the basis of a negotiable instrument under the summary procedure provided in Order 37 of the Code of Civil Procedure after the defendant appeared through his counsel and his prayer for leave to defend had been rejected from a Court in the State of Bikaner, which is a native State and, as such, it is a foreign Court for the purpose of section 13 of the Code. The question arose as to whether the said decree was one on merits and as such conclusive under section 13. After considering the question in an elaborate detail, if I may say so with respect, after referring to all the relevant decisions on the point, the Division Bench observed as follows:
From a review of the case-law made above, we are clearly of opinion that in order that a judgment of a foreign court may successfully pass the test of having been given on the merits, such a judgment must not have been given either as a matter of penalty or as a matter of mere form based on special or summary procedure inasmuch as such a trial does not offer any real or substantial opportunity to the defendant to contest the suit as a matter of right as he receives it under a regular procedure. This is, however, not to say that an ex parte judgment per se may not be a judgment on the merits. It may very well be. It is not the presence of the absence of the defendant which can really condition the quality of a judgment as to its having been given on the merits or not. What really matters is whether the procedure according o which the suit has been decreed requires the Court to determine the truth or falsity of the contentions raised or which may be raised. It seems to us that where it is so required unless the Court applies its mind to the contentions raised on either side, there cannot but be a judgment on merits. Where the procedure, however, does not so require and a decree can be estered in favour of plaintiff merely because the defendant has failed to appear and the judgment is given in default, or where he has failed to apply for leave to defend, or where he has applied for leave to defend and such leave is refused, then we are disposed to hold the view that such a judgment cannot be held to have been given on the merits within the meaning of section 13(b), Civil Procedure Code.
According to the learned Judges, a decree passed in a suit brought under the provisions of Order 37, Civil Procedure Code, without going into the merits of the defence either because the defendant failed to appear or because he was not given leave to defend, cannot be held to be a judgment on the merits of the case. Referring to the Madras case cited above, the learned Judges observed that the facts of the Madras ease were somewhat parallel to the case before them and that the Madras judgment gives due significance to the special provisions dealing with the summary procedure under Order 37.
7. The learned counsel for the respondents, however, relied on a decision of the Supreme Court in Ramkarandas Radhavavallable v. Bhagwandas Dwarkadas : 2SCR186 . in support of his submission that since the Court has to consider the claim of the defendant for leave to defend even in a suit instituted under the summary procedure laid down in Order 37 and the Court has got a discretion to grant or not to grant leave to defend having regard to the defence taken, the decree passed by the Court after rejecting the defendants' application for leave to defend should be taken to be a judgment on merits. However, it is not possible for me to take that decision as one laying down that a decree passed under the summary procedure laid down in Order 37 after rejecting the application for leave to defend should be taken to be a judgment on merits. Apart from the fact that the case before the Supreme Court did not relate to the actual question that has arisen for consideration here the said judgment cannot also be taken to throw any light on that question. Almost all the High Courts have taken a uniform view that a decree passed by a Court under the summary procedure after refusing leave to defend sought for by the defendant is not a judgment on merits. As a matter of fact, no decision of any court has been cited before me by the learned counsel for the 1st respondent taking a contrary view. Hiving regard to the preponderance of judicial opinion, with which I respectfully agree. I hold that the decision of the Singapore High Court in Suit No. 2598 of 1975 cannot be taken to be a judgment on merits as contemplated by section 13(b) of the Code of Civil Procedure and, therefore, it cannot be taken to be conclusive.
8. In the result, the appellant succeeds and the appeal is allowed and the judgment of the Singapore High Court in the said suit so far it relates to the appellant cannot be executed in India. As the second respondent herein, who was the first defendant in the suit and the first respondent in the execution petition has not challenged the lower court's order passed in execution, that order so far as he is concerned has become final and therefore, the order passed by the executing Court as against him will have to stand. There will, however, be no order as to costs. The first respondent is at liberty to proceed with the execution as against the second respondent.