The main legal point established in the judgment is that the cause of action for enforcing a foreign judgment arises from the implied contract between the parties, and the period of limitation begins from the date of the decree or order of the Trial Court.

Stone, J.

1. This case raises a preliminary point of importance and one which has not apparently been raised before although one would have thought that this matter in question must have arisen, in India, many times before. It is suggested by each side that the reason it has not been raised before that is that the answer is so obvious that the question is hardly susceptible of argument whereupon then followed on each side an able and exhaustive argument to show that the obvious was obvious

2. The point in question is this: Where in a foreign State there is an action and in that action a judgment is given and from that judgment appeal is made which appeal is dismissed is the "judgment" in that action the judgment of the Court of first instance or is it the judgment of the Appellate Court for the purposes of the Limitation Act?

3. This action is brought to enforce a judgment given in the State of Bikaner. The period of limitation in question is that provided by Article 117 of the Schedule of the Act, that is, six years from the date of "the judgment". The suit is, in the Limitation Act, described as "upon a foreign judgment as defined in the Code of Civil Procedure, 1908". If Article 117 is not applicable the period is six years from the time "when the right to sue accrues" (Article 120).

4. When one turns to the definition of "foreign judgment" in the Code of Civil Procedure, 1908, it is found to mean the judgment of a foreign Court. When one refers to what this means one finds no difficulty in the definition of "foreign Court" but there is a difficulty created by the definition of the word "judgment" for "judgment" curiously enough is given the popular meaning, vis., "the statement given by the Judge of the grounds of a decree or order." That is, it has not got the meaning it has in England. It does not mean the decree or order but it means a statement by a Judge.

5. This, in my opinion, results in an absurd reading of Article 117 and accordingly is one to be avoided if possible. It results in an absurdity because as will hereafter be shown when an action is brought upon a foreign judgment the basis of that action is the implied contract raised by the fact that the parties have litigated the matter and the implication that by so doing each has impliedly agreed with the other to abide by the order or obey the decree of the forum before whom the action is tried. Thus the essence of the cause of action is contract. A "judgment" as defined by the Civil Procedure Code, need not be given at all. Certainly there is no implied contract to agree to perform the "grounds" of the decree or order still less is there an implied contract to perform the "statement given by the Judge of the grounds". I am thus constrained to hold that "judgment" in the expression "foreign judgment" as used in Section 2(6) of the Civil Procedure Code has the English meaning and not the meaning (as regards the word "judgment") given by Section 2(9) of the Civil Procedure Code. That is, the term "foreign judgment" means the decree or order of a foreign Court as defined in Section 2(5) of the Civil Procedure Code. If I am wrong as to this I hold that Article 117 does not apply and the appropriate article is Article 120.

6. One other preliminary matter must be touched upon. It is clear that a foreign judgment and a municipal judgment are upon entirely different basis. When one seeks to enforce a municipal (or national as distinct from foreign) judgment one has available the machinery of execution. One executes the judgment. In the case of a foreign judgment there can be no question of execution. The distinction between execution and suing on a foreign judgment is, at any rate in India, and for reasons which hereafter appear is this: execution is a continuing right which lasts until the action is concluded; a suit on a foreign judgment is an action upon an implied contract. That cause of action arises once, viz., when a decree is given obliging one party to do or