A foreign decree passed in absentem against a non-resident foreigner who has not submitted to the jurisdiction of the foreign court is a nullity and not enforceable in India under section 13 of the Civil Procedure Code.

S. K. Kapur, S. N. Andley, JJ.

( 1 ) ON 24th August, 1949, Bharat Nidhi Limited than known as Bharat Bank Limited, the plaintiff appellent, filed a suit against Megh Raj Mahajan, defendant-respondent, for recovery of Rs. 61,194. 00, being the debit belance in the cash credit account with the plaintiff. On 20th December, 1949, the Senior Subordinate Judge, Sialkot, decreed the suit and the present suit for recovery of Rs. 63,004. 00 was filed on 12th June, 1954, on the basis of the judgment of the Senior Subordinate Judge, Sialkot. The judgment and decree were passed ex parte and there is an observation in the decree that" a summons was duly served upon the defendent, notwithstanding which he has not appeared to defend the suit. It may be pointed out at this stage that it is from this observation that the Trial Court concluded that the defendent had been properly served with a notice issued by the Sialkot Court. From this finding the learned counsel for the appellant wants us to deduce that the defendant was physically in Pakistan when he was served with the notice and when the action was commenced. He then bases an argument on the physical, presence of the defendant on the date of the suit, which shall be dealt with later, that the decree of the foreign Court was enforseable in India. There appears to be no warrant for this contention because a defendant may be duly served even outside Pakistan. The only question that arises is: whether the judgment and decree were nullity havingeen passed by a foreign Court ? The answer will primarily depend on whether the defendant was a non- resident foreigner qua the Sialkot Courts on the relevant date. There has been some controversy at the bar as to what the relevant date is. According to Mr. Yogeshwar Dayal, the learned counsel for the appellant the relevant date would be date of the commencement of the action, while Mr. Whig, the learned counsel for the defendant, maintains that the crucial date is the date of the decree. I will advert to this controversy also a little later. It is not disputed that the defendant never submitted to the jurisdiction of the Sialkot Court. It is also not disputed that both on the date of the institution of the action and on the date of the judgment the Sialkot Court was a foreign Court. The question, as I have said above, therefore, is; was the defendant a non-resident foreigner qua Pakistan Courts on the relevant dates ? In paragraph 4 of the plaint as originally filed there was no allegation about the domicile, nationality or residence of the defendant. In reply to paragraph 4 in the written-statement the defendant categorically stated.-

"it is denied that the amount, if any, to the plaintiff was payable at Sialkot, or any other place in Pakistan on the 24th August, 1949, when the defendant had since long before ceased to reside or carry on business in Sialkot and had actually migrated to India and had become Indian national. "the plaintiff filed his replication to the said written-statement and while dealing with paragraph 4 of the written-statement said -

"allegations in para. 4 which are contrary to the facts mentioned in para. 4 of the plaint are not admitted to be correct and are denied. "it necessarily follows that statement of the defendant about his having actually migrated to India permanently and become Indian national was not denied. Mr. Yogeshwar Dayal sought to overcome this difficulty by pointing out that the plaintiff filed an amended plaint and the defendant an amended written-statement. Although there was no change so far as paragraph 4 is concerned, but says Mr. Yogeshwar Dayal that no replication having been filed to the amended written-statement the admission in the replication should not bind the plaintiff. It appears that amendment of the plaint was made because in the original plaint the plaintiff had sought to enforce the foreign decree and an objection was taken by the defendant that judgment of a foreign Court and not the decre

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