Judgment when to be given on merits.

This revision raises a very interesting point with regard to the executability of a decree passed by a foreign Court. The decree in question is one passed by the Sessions Judge at Kuala Lampur in the State of Federal Territory, Malaysia, in Civil Action No. 1935 of 1981 on 5-12-1981. The petitioner in this revision is the judgment-debtor and the respondent is the decree-holder. The judgment-debtor opposed the execution of the decree referred to above before the District Judge of East Thanjavur at Nagapattinam, where execution was levied, pleading that the decree is not conclusive and it will come within the exceptions under S.13, sub-cls.(a), (b), (d) and (e) of the C.P.C., hereinafter referred to as the Code. The Court below has not accepted the contentions of the judgment-debtor and has directed the execution to be proceeded with. This revision is directed against the orders of the Court below.

2. Mr. P. Shanmugam, learned counsel for the judgment-debtor, would put forth his contentions under the following heads and I will deal with them one by one. Firstly, it is contended that the foreign judgment is one not pronounced by a Court of competent jurisdiction and hence, it will come within the mischief of S.13(a) of the Code. As to when foreign Courts could derive jurisdiction in regard to suits of a personal nature has been recapitulated by a Bench of this Court, consisting of Sankaran Nair and Napier, JJ., in Ramanathan Chettiar v. Kalimuthu Pillai, ILR 37 Mad 163 : 1914 AIR(Mad) 556. The Bench recounted the ratio of Fry, L. J., in Rousillon v. Rousillon, 1880 (14) Ch(D) 351. That has been reiterated practically six years later by another Bench of this Court, consisting of Ramamurti and Krishnaswamy Reddy, JJ., in R. M. V. V. Achi v. R. M. A. R. Chettiar, ILR 1972 Mad 423 : 1973 AIR(Mad) 141. The Supreme Court in Moloji Nar Singh Rao v. Shankar Saran, has also countenanced the same ingredients as conferring jurisdiction on a foreign Court in respect of action in personam. As per the above pronouncements, the following circumstances would give jurisdiction to foreign Courts :

(1) Where the person is a subject of the foreign country in which the judgment has been obtained; (2) Where he was a resident in the foreign country when the action was commenced and the summons was served on him; (3) Where the person in the character of plaintiff selects the foreign Court as the forum for taking action in which forum he is sued later; (4) where the party on summons voluntarily appeared; and (5) where by an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained. Mr. G. Subramaniam, learned counsel appearing for the decree-holder, would state that the matter would squarely come under circumstances Nos. 2 and 5 on the facts of the present case. The suit before the Sessions Court at Kuala Lampur appears to have been instituted on or about, if not anterior to 28-10-1981. The second summons in the suit was served on the judgment-debtor on 19-11-1981 by one T. S. Abdul Rahim, who, according to the evidence of the decree-holder examined as P.W. 1, is stated to be the concerned Process Server. Ex. A2 is the photostat copy of the summons issued to the judgment-debtor second time and Ex. A3 is the photostat copy of the affidavit of the Process Server, T. S. Abdul Rahim. Earlier, according to the decree-holder, P.W. 1, after the service of the first summons, the judgment-debtor passed on a letter on 28-10-1981 whereby after acknowledging the receipt of the summons and the statement of claim annexed thereto, he gave consent to take a judgment for the sum of pound 13,420.00. Ex. A1 is the photostat copy of the said letter. These documents, apart from the evidence of P.W. 1, amply bear out that on the relevant dates, namely, when the borrowing took place on 1-6-1976; when the action was commenced in the foreign country in or about October, 1981; when summonses were served on him twice in Oct.-Nov.