Judgement

Appeal from a decree of the High Court (Jan. 26, 1900) reversing a decree of the District Court of South Arcot (Nov. 8, 1898).

To a suit brought under the circumstances stated in their Lordships judgment by the appellant to recover the amount of a decree (March 20, 1896) which he had obtained on a promissory note and for balance of an account in the Court at Pondicherry, and the costs of the execution proceedings thereon which had failed of effect, the first respondent pleaded (1.) that the District Court had no jurisdiction to entertain the suit as he did not reside within the jurisdiction of the said Court at Arcot, and had never carried on trade within the said jurisdiction, and, therefore, was not subject thereto ; (2.) that the appellant had obtained the promissory note by fraud, and had fraudulently instituted the suit in the Court at Pondicherry against him; (3.) that both the note and the decree Were invalid, and that the plaintiff was entitled under the French law only to a dividend like other creditors holding simple debt bonds.

In a later written statement he alleged that the insolvency of the firm of which he was a partner was declared by the French Court to date from January 8, 1896 ; that according to the French law all transactions entered into by the insolvent debtor and all decrees obtained against him from a date ten days prior to January 8, 1896, became null and void.

The receiver under the French Court of the first respondents firm in liquidation pleaded that the Pondicherry decree was null and void by reason of the fact that the said firm had been declared insolvent on July 20, 1896, and that by a subsequent decree of the French Court it was to have been considered to have become insolvent as from January 8, 1896.

The District Court of South Arcot found that the first respondent was carrying on business at Cuddalore within the meaning of s. 17 at the date of suit, and that he was subject to the jurisdiction, and he decreed the full amount claimed with costs.

The High Court reversed this finding. They said " The ground on which the plaintiff contended that the District Court of South Arcot, at Cuddalore, had jurisdiction over the defendant was that he carried on business within its jurisdiction (s. 17 of the Code of Civil Procedure). The business carried on, according to the plaint, was a money-lending business, but at the trial no attempt was made to support this. The oil business on which the plaintiff relies was commenced in 1894, two years after the partial severance had been effected, and it is, therefore, unlikely that the defendant would have consented to such a business being carried on as a joint business. Nor is there any sort of evidence that he did. On the contrary, the conduct of the parties concerned is absolutely inconsistent with the view that the oil business was a business in which the defendant had a joint interest."

The High Court also held that " so long as the adjudication of the insolvency remains in force, no suit could be brought against the first respondent in French territory. Such being the insolvents position in French territory, it must be held to be the same outside that territory, in a case such as this. The decision of the Privy Council in Quelin v. Moisson (1 Knapp, 265.), which was a case on all fours with this, is a direct authority in support of the above view."

Cohen, K.C., and J. M. Parihhy for the appellant, contended that there was sufficient evidence to justify the District Judge in concluding that the conditions of s. 17 had been sufficiently satisfied to give the District Court jurisdiction over the defendant. They referred to ss. 17 and 20 of the Procedure Code; ss. 38 and 57 of the Indian Evidence Act; Muthaya Chetti v. Allan (( 1880) Ind. L. R. 4 Madr. 209.); Venkata Viraragavayyangar v. Krishnasami Ayyangar (( 1882) Ind. L. R. 6 Madr. 314, 349) ; Girdhar Damodar v. Kassigar Hiragar. (( 1893; Ind. L. R. 17 Bomb. 602.) Under s. 12 of the letters patent