Grand of declaratory relief in respect of proceeding pending in foreign Court.

Subba Rao, J.-These are two connected appeals and the only question that arises in both the appeals is whether the plaintiff would be entitled to the declaration asked for. On 19th April, 1936, one T.N.S.Chockalingam Chetty executed a promissory note in favour of the defendant V.S.Subramania Aiyar for a sum of Rs. 31,500 and deposited with him the title deeds of three sets of properties by way of equitable mortgage. The properties so comprised in the equitable mortgage consist of ten items of Chockalingam Chetty’s own properties in Madras, two items in Madras in regard to which he had only mortgage interest and his mortgage interest in some properties situated in Karaikkal in the French territory. The said properties situated in Karaikkal were mortgaged by the plaintiff’s father Vythilingam Pillai to Chockalingam Chetty by a deed of the year 1925. Subramania Aiyar filed O.S. No. 63 of 1939 on the file of the Court of the Subordinate Judge of Sivaganga to enforce the equitable mortgage and in that suit he sought to enforce his mortgage against the properties situated in India. Neither Vythilingam Pillai was made a party nor his properties in Karaikkal were the subject-matter of that suit. Indeed the mortgagee could not enforce the rights against those properties as they were situated in a foreign country. Subramania Aiyar obtained a preliminary decree, Ex. P-1 dated 10th October, 1939, for recovery of a sum of Rs. 40,000 and obtained a final decree, Ex. P-2, dated 14th July, 1940. In execution of the final decree he filed E. P. No. 147 of 1940, Ex. D-1, and brought the properties in British India to sale. In the sale about Rs. 7,000 was realised and part satisfaction of the decree was recorded. As the bulk of the properties mortgaged to Subramania Aiyar were in Karaikkal and as the amount due under the mortgage was not realised he took out appropriate proceedings in April, 1941, in the French territory of Karaikkal. He followed the procedure obtaining in the French territory and appraised the plaintiff, Ramaswami Pillai, the son and the legal representative of Vythilingam Pillai by an "Arikai" of his claim against the 1st defendant. The plaintiff totally denied his liability. Thereupon the defendant filed a suit against Chockalingam Chetty on the file of the Court of the Justice of Peace with exhaustive powers of Karaikkal on 24th April, 1941 and obtained a decree against him on 8th August, 1941. The plaintiff was appraised by an "Arikai" of the institution of the suit and of the passing of the decree. After the obtaining of the decree appropriate proceedings were taken out in the French Court at Karaikkal against the plaintiff herein for the recovery of the amount from him. On 16th April, 1942, an order was passed by the French Court at Karaikkal directing the plaintiff to pay a sum of Rs. 46,324-3-0 with interest and costs to the defendant. The plaintiff questioned the validity of the order passed against him and also denied his liability to pay any amount to Chockalingam Chettiar. His objections were negatived and his liability to Chockalingam Chetty was fixed at about a sum of Rs. 81,000 with interest. The plaintiff preferred an appeal against that order to the High Court of Justice of the French Republic of Pondicherry. We are informed that the appeal was since dismissed and an appeal is taken against the judgment to the appellate Court in Paris. The defendant is now taking proceedings in Karaikkal for realising the amounts from the plaintiff by attachment of his properties. There is conflict of versions in regard to the scope of the suit filed in Karaikkal. The learned counsel for the respondent urges that the suit was to enforce the decree in O.S. No. 63 of 1939 whereas D.W.1, the advocate who conducted the case for Subramania Aiyar in Karaikkal says in his evidence that a suit was filed against Chockalingam Chetty in Karaikkal, and that the basis of that suit was not Sivaganga decree alone but it was the whole of the ri

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