The main legal point established in the judgment is the significance of submission to jurisdiction through the execution of a power of attorney and the validity of an ex parte judgment when passed upon the merits.

Phillips, J.

1. This is a suit upon a foreign judgment of the Colombo Court against the 1st defendant. The 1st defendant and his brother who were trading in partnership executed a power of attorney to one Sheikh Abdul Rahiman under which he was empowered to sue in the Courts of Ceylon and to appear before any Court or Courts of Justice either as plaintiff or defendant, etc. The power is a very wide one and gives the agent very full powers to represent the principals.

2. Under the provisions of the power Abdul Eahiman appointed one Abdul Guddus as his sub-agent during his absence from Ceylon. A suit was filed in 1915 on four promissory notes against Abdul Rahiman and Abdul Guddus but upon their pleading that they were merely agents of 1st defendants firm another suit was brought against the 1st defendant. Notice of the suit was served on Abdul Guddus as 1st defendants agent; and the judgment on which the present suit is based was passed in his absence.

3. The first question for consideration is whether the 1st defendant had submitted to the jurisdiction of the foreign Court, and on this point I must agree with the learned District Judge that he did so by executing the power of attorney in favour of Abdul Rahiman empowering the latter to conduct litigation in the Ceylon Courts, namely, in a place where the agent was conducting business for his principals, and it is clearly a contract binding him to appear in those Courts, and amounts to submission to the jurisdiction of these Courts. In this connection I would refer to the case reported in Ramanathan Chettiar v. Kalimuthu Pillai (1912) 37 Mad. 163.

4. The next question raised for the respondent is that the foreign judgment sued on was not one obtained on the merits. Ordinarily, a judgment delivered ex parte is deemed to be one on the merits; but it is contended here that in summary suits similar to those provided for by Order 37 of the Civil Procedure Code an ex parte judgment cannot be deemed to be one passed on the merits. Reliance is placed on the case reported in Viswanadha Reddi v. Keymer (1914) 39 Mad. 95 the decision in which was confirmed by the Privy Council in Keymer v. Viswanatham Reddi A.I.R. 1916 P.C. 121. In that case a defence had been put in, but it was ordered to be struck out because of defendants failure to answer interrogatories. The decision given in these circumstances was held to be one not on the merits.

5. There are no doubt some observations in the judgment of this Court which would go to show that a foreign judgment passed in default of appearance is not a decree on the merits, and two cases are therein referred to as supporting this proposition. One of these is The Delta (1876) 1 P.D. 393 and the other is The Challenge and Due DAumole (1904) P. 41. In the first of these cases the foreign judgment had not been delivered when the suit was filed in England and also it was held that the evidence of the French and Italian Advocates examined left it doubtful whether the foreign judgment in that case would have, even in France or Italy, the force of res judicata. In the second case it appears that the defendants had not submitted to jurisdiction. In the judgment of the Privy Council which is reported in Keymer v. Viswanatham Reddi A.I.R. 1916 P.C. 121 their Lordships in referring to the question under Section 13(b), Civil Procedure Code, state that that section refers to

Those cases where for one reason or another the controversy raised in the action has not in fact been the subject of direct adjudication by the Court.

6. From this it would appear that it is necessary in the first place that some controversy should be raised in the action and in the second place that aftar it has been raised it should not have been finally decided. This principle is the same as that enunciated by Lord Herschell in Noviou v. Freeman (1889) 15 A.C. 1.

In a Court of competent jurisdiction, whether according to its established procedure the whole merits of the case were open, at