Foreign judgment when becomes binding and conclusive.

The plaintiff (appellant herein) filed a suit before the Subordinate Judge of Tirunelveli for recovery of Rs. 12,537-11-11 based upon a foreign judgment obtained by the plaintiff in the District Court, Colombo. The plaintiff and his mother Kuppammal were trading as partners under the name and style of ‘M. K. Sivagaminathan’, in Princess Street, Bombay. Defendants 1 and 2 were carrying on business in partnership in Colombo under the name and style of ‘Jayalakshmi and Company’. Defendants 1 and 2 borrowed from the plaintiff several sums under hundis drawn on the defendants and made payable thirty days after sight to the order of the Indian Overseas Bank, Ltd., Colombo. Defendants 1 and 2 accepted to pay the amount due under these hundies but failed to pay when they were presented to them on the due dates.

The plaintiff and his mother filed a suit No. 15437/S on 7th October, 1953, in the District Court at Colombo for recovery of Rs. 10,671-35 cents. Summons were issued to defendants 1 and 2 and they accepted the summons. Defendants 1 and 2 filed proxy through their Proctor and moved for the grant of leave to appear and defend the action unconditionally. The Additional District Judge, Colombo, passed an order on 8th December, 1953, holding that the defendants were prima facie liable in respect of the bills and observed that he was not satisfied with the bona fides of the defence raised by the 1st defendant. The Court ordered the 1st defendant to give security in the sum of Rs. 7,000 as a condition of filing answer and granted time for security and answer till 21st December, 1953. It may be noted that though the 2nd defendant received the summons he remained ex parte. The 1st defendant failed to furnish security on the due date and on the application of the plaintiff judgment was entered in favour of the plaintiff on 21st December, 1953. On 2nd February, 1954, the 1st defendant applied for stay of execution proceedings and submitted that on the 17th December, he had filed a petition of appeal against the order directing him to give security as a condition for filing answer. The learned Additional District Judge of Colombo directed execution to be stayed on the 1st defendant furnishing security for Rs. 7,000 and granted time till 27th February, 1954. The 1st defendant did not furnish any security. The 1st defendant filed an appeal to the Supreme Court of Colombo and the Supreme Court by an order dated 7th October, 1954, dismissed the appeal. The plaintiff applied for execution of the decree but could not realise the amount from the defendants.

The plaintiff filed the present suit before the Subordinate Judge of Tirunelveli based on the judgment of the District Court, Colombo. The defendants raised various contentions and resisted the suit. The learned Subordinate Judge dismissed the suit. The lower Court found that the plaintiff has not proved that the judgment of the Colombo Court in S. No. 15437/S dated 21st December, 1953, is conclusive on the matter arising for adjudication between the parties.

In the appeal before us the learned counsel for the appellant contended that the judgment in No. 15437/S, District Court, Colombo, is a foreign judgment on merits and the Subordinate Judge ought to have given a decree on that judgment. The main contention put forward by the learned counsel for the respondent is that the judgment of the Colombo Court is in the nature of an order for default and it was not given on the merits of the case.

According to the procedure prevailing before the District Court, Colombo, action on a cause for a debt due on a promissory note is instituted by presenting a plaint in the form prescribed. The procedure to be followed in the Civil Courts in Ceylon is governed by the Civil Procedure Code of Ceylon. Section 7 of the Civil Procedure Code of Ceylon runs as follows:-

"The procedure of an action may be either regular or summary."

Illustrations.

"In actions of which the procedure is regular, the person aga