Judgement

Appeal from a judgment and decree of the High Court (November 6, 1914) reversing the judgment of Blakewell J. at the trial.

The appellant, who was a merchant in London, brought an action in the Kings Bench Division of the High Court of Justice in England to recover from the defendant, who resided at Madras, 4251. 17 s. 2d., being the difference between the amount of bills drawn upon the appellant by a firm in which he alleged that the respondent was a partner and the value of the goods against which the bills were drawn. Leave was obtained to serve the writ out of the jurisdiction under the Rules of the Supreme Court, Order xi., r. 1 (e). The respondent entered an appearance under protest and took proceed ings to set aside the writ and service, but his objection was disallowed by the Court of Appeal see [ 1912] 1

K. B. 215. He subsequently delivered a defence, and on February 11, 1913, was ordered to answer certain interrogatories. He failed to comply with that order, and the judge at chambers consequently made an order on May 5, 1913, that his defence should be struck out, and that the plaintiff (appellant) should be at liberty to sign judgment for the amount claimed and costs. Judgment

64 Law. Rep. 44 Ind. App. 6 ( 1916- 1917)

Keymer V. P. Visvanatham Reddi 165

was entered accordingly for 425Z. 175. 2d. and 1501. 16s. 1d., the amount at which the costs were taxed and allowed. On October 13, 1913, the appellant instituted the present suit in the High Court against the respondent. By his plaint he claimed the two above-mentioned sums (amounting to Rs.8649) under the judgment, and alleged that the present cause of action arose at Madras on July 14, 1913, when the defendant upon demand failed to satisfy his claim. The defendant (respondent) by his written statement pleaded that he was not bound by the judgment of the Kings Bench Division on the grounds (1.) that that Court had no jurisdiction, and (2.) that the judgment was ex parte and was not given after a trial upon the merits.

Blakewell J. delivered judgment for the appellant. Upon appeal the Court (Wallis and Aiyer JJ.) reversed that judgment. The learned judges held that the judgment sued on was one " not given on the merits " within the meaning of s. 13 (6) of the Code of Civil Procedure, 1908. The case is reported at

I. L. R. 39 Madr. 95.

1916. Nov. 14. Sir R. Finlay, K.C., and Dunne, for the appellant. Under s. 13 of the Code of Civil Procedure, 1908, the judgment sued on is conclusive between the parties and amounted to an estoppel; the judgment is not within the exception in sub-s. (6). The respondent, by failing to comply with the order to answer interrogatories and by allowing his defence to be struck out, must be taken to have admitted the facts alleged. The judgment was a final and conclusive decision of the case by a Court of competent jurisdiction. [Reference was made to Ram Chand v, Bartlett ( 1909 P. R. 263, 282.), Moazzim Hossein Khan v. Robinson (( 1901) I. L. R. 28 Calc. 641.), The Delta (( 1876) 1 P. D. 393.), Harris v. Quine (( 1869) L. R. 4 Q.B. 653.), Emanuel v. Symons ([ 1908] 1 K. B. 302.), In re South American Co. ([ 1895] 1 Ch. 95.), and Nuvion v. Freeman. (( 1889) 15 App. Cas. 1.)]

De Gruyther, K.C., and Kenworthy Brown, for the respondent, were not called upon.

The judgment of their Lordships was delivered by

LORD BUCKMASTER L.C. This case raises only a short question, but admittedly it is one of wide and general importance. It is for that reason that the Board departed from their usual course, and permitted Sir Robert Finlay to resume his argument after it had been concluded and his junior had addressed the Board. After having given full consideration to the arguments urged both by him and by his junior, the Board find themselves unable to accede to his contention.

The history of the case is this The appellant was originally plaintiff in a suit brought by him in this country against the respondent. In that suit he claimed a sum of 425?. 1