(1) This appeal raises an important question under Section 13 of the Code of Civil Procedure as regards the effect of a foreign judgment on a subsequent suit based on the same original cause of action between the same parties in respect of some other properties.

(2) There is no dispute about the facts relevant to the appeal between the parties. The land in dispute were of the ownership of one Ishwar, son of Ganapiah, who died on 19-1-1945 without leaving any direct heirs behind him. The lands are situated at Manvalli in Siddapur Taluka of North Canara District. Respondent No. 1 institutes O.S. 44/56 in the Court of the Civil Judge, Junior Division, Sirsi on 7-6-1956, for a declaration that he was the nearest heir to the deceased Ishwar and for possession and other consequential relief's against the appellants and other respondents. The plaintiff claimed to be the father's sister's son of deceased Ishwar while the appellant claimed to be the mother's mother of Ishwar. Ishwar owned some immovable property at Talava in Sagar Taluka of Shimoga District which formed part of the princely state of Mysore. In respect of that property the plaintiff instituted O.S. 268 of 46-47 in the Court of Munsiff at Sagar against the appellant and other, claiming to be the nearest heir to deceased Ishwar.

This suit was decreed by the trial Court. The present appellants challenged that decision in R.A. 59 of 48-49 in the Court of the Subordinate Judge at Shimoga, the appellate Court upheld the decision of the trial Court and dismissed the appeal. The former High Court of Mysore dismissed the second Appeal No. 436 of 49-50 on 21-8-1950 declining to interfere with concurrent findings on facts. In the trial Court at Sirsi the plaintiff relied upon the Judgment of the Munsiff's Court at Sagar as conclusive between the parties as regards his right to succeed to the property of Ishwar in preference to the present appellant, under Section 13 of the Code of Civil Procedure. The trial Court held that the judgment operated as res judicata and decreed the suit in full. The present appellants then challenged that decision in Civil Appeal No. 187 of 1957 which was heard by the Civil Court concurred with the view taken by the learned trial Judge and dismissed the appeal on 2-3-1961. The present appeal questions the correctness of that decision.

(3) Mr. T.S. Ramachandra for the appellants contended that the judgment of the Munsiff's Court at Sagar being a foreign judgment, was not binding on the appellants as, under exception (a) to S. 13 of the Code, that Court was not a Court of competent jurisdiction to pronounce judgment on the plaintiffs right to the suit properly. He also contended that as the plaintiff's suit was not one instituted on the basis of the foreign judgment, it was the duty of the trial Court to have decided the relationship of the parties to Ishwar on the evidence before it and the right to succession in accordance with the Hindu Law operating in the North Canara District. He submitted that the Courts below had erred in holding that the judgment of the Sagar Court operated as res judicata. Mr. V. Krishna Murthy the learned Advocate for the first respondent tried to support the judgment of the Courts below and incidentally submitted that as the judgment of the High Court of Mysore was delivered on 21-8-1950, that judgment could not be regarded as a foreign judgment. According to him, it is the law of domicile that determines the question of succession.

(4) It is common ground that the Indian Civil Procedure Code was made applicable to the area comprising the former Mysore State with effect from 1-4-1951; prior to that date, the State had its own Code, though it was substantially identified with the Code of Civil Procedure, 1908. Section 2(5) of the Code as it stood prior to its amendment in 1951, defined a 'foreign Court' as meaning 'a Court situate beyond the limits of British India and is not established or continued by the Governor-General