Judgement

Appeal (No. 34 of 1945) from a judgment and decree of the High Court in its appellate jurisdiction (February 15, 1943) which had affirmed a decree of that court passed in its ordinary original civil jurisdiction (September 17, 1942).

The main questions in this appeal were whether a judgment of the High Court of Indore, dated October 29, 1941, was binding on the parties to this litigation by virtue of s. 13 of the Code of Civil Procedure, and whether, if so, the present suit was concluded by that judgment.

The trial court (Chagla J.) and, on appeal, Beaumont C.J. and Weston J. answered both questions in favour of the respondents.

The facts appear from the judgment of the Judicial Committee.

Section 2 of the Code of Civil Procedure, 1908, contained the following definitions, which, however, were all subject to the qualification unless there is anything repugnant in the subject or context " —

"‘Foreign Court’ means a court situate beyond the limits of British India which has no authority in British India and is not established or continued by the Central Government or the Crown Representative.

“’ Foreign judgment means the judgment of a foreign court.

"‘Judgment means the statement given by the judge of " the grounds of a decree or order.1 Section 13 was as follows—

"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—

"(a) where it has not been pronounced by a court of competent jurisdiction; "(b) where it has not been given on the merits of the case;

"(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of British India in cases in which such law is applicable;

“(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

“(e) where it has been obtained by fraud;

"(f) where it sustains a claim founded on a breach of any law in force in British India."

1947. May 12, 13, 14. Tucker K.C., Khambatta K.C. and Quass for the appellants. The questions in this appeal relate to the construction of s. 13 of the Civil Procedure Code and the validity and effect of a judgment and order obtained by the respondents from the High Court of Indore in its original and appellate jurisdiction, following on alleged arbitration proceedings between the parties held in Indore. The partnership was one governed by the Partnership Act, 1932, of British India, and the award in substance and effect awarded that the partnership should be dissolved, and the point is whether the Indore High Court judgment holding the award to be valid binds the parties in the proceedings in British India which were brought to set aside that award and for a declaration that the partnership still subsisted. In any arbitration between these parties it must be the British Indian law, and not the Indore law, of arbitration that must be applied; that is specified in the arbitration clause in the partnership deed. The Indore court is clearly a “foreign court " within the definition in s. 2 of the Code, and " foreign judgment " in that section must include both the expression of the judgment and the order made on it. The respondents defence under s. 13 of the Code was that there was a foreign judgment which was conclusive on matters which were directly adjudicated upon— that the foreign court had directly adjudicated upon everything that was necessary to hold that this was a valid award. It is submitted that all the matters that are necessary have not been adjudicated upon. The respondents have to prove that there was arbitration under the law of British India and that the award was valid under that law. They do not appear to have attempted that. There was no adjudication by the final court of Indore whether this was a valid award under British Indian law, and that leaves the matter open. Under British