A foreign judgment obtained by default of appearance does not operate as res judicata under Section 13(b) of the Civil Procedure Code.

Krishnan, J.

1. The suit from which this appeal has arisen was brought by the plaintiff on a judgment of the Supreme Court of Penang-obtained By him against 1st and 2nd defendants and one Pichai Haji, deceased, whose legal representatives are defendants 3 to 6. That suit was on a deed of composition Exhibit F executed by the said three persons for money due on dealings in Penang, Though they were British Indian subjects, they were at the time of the suit in Penang, resident within the jurisdiction of the Penang Court. At the hearing of that suit they did not appear in Court to contest it. They were declared to have been properly served, the present 1st Defendant having been served personally and the two others by substituted service. In accordance with a rule of procedure of that Court by which, in suits in which Defendants, being properly served, do not appear and contest, judgment is given for the plaint--claim without any trial, judgment was entered up in favour of the Plaintiff as a matter of course. It is on that judgment the present suit is brought.

2. The Subordinate Judge dismissed the suit holding that judgment was obtained against the Defendants in Penang Court "by procuring a false and fraudulent return of service of the writs of summonses obtained against them" and that in fact the Defendants had not been served at all and that it was against natural justice to recognize such a judgment in our Courts. I am unable to agree that there was any real defect in the service of summons. The issue raised in the present suit, issue 1, has reference only to service on the 1st Defendant. That issue is "Has the decree in O.S. No. 714 of 1921 on the file of the Supreme Court of Penang been obtained against the 1st Defendant by procuring a false and fraudulent return of service of the writ of summons on him?". The verified report of the process-server to the Penang Court was that he was personally served, Exhibit D. The only evidence we Have now, vis., that of P.W. 1 is that he was personally served. The 1st defendant did not go into the box and deny it. I think that on this evidence it must be held that the defendant was personally served. As regards the other two defendants who were served by substituted service, no issue was raised, but the Subordinate Judge has held that substituted service was bad. What appears from the affidavits of the process-server which have been admitted in evidence without objection and the evidence of P.W. 1, is that the 1st and 3rd defendants in that suit had moved away from Queen Street where they usually lived to a street quite close by, called King Street, after their shop was attached and sealed up and that they were living in 71, Kings Street, at the time the summonses were taken out Though the summonses were addressed to 70, Queen Street, the process-server took them to the place in King Street where they were reported to be and not finding them returned the summonses unserved. It was on this that substituted service was applied for and granted. There is nothing fraudulent in the application.

3. It was entirely for that Court to decide whether substituted service should have been granted. Substituted service was effected by affixing in 71, King Street and on the Court notice board. I can see no fraud or mistake in these proceedings. If there was any error, the defendants in the suit being resident foreigners, should have applied to the Panang Court to set the matter right, but nothing of that sort was ever done. Against the evidence on the plaintiffs side there is no counter-evidence of any value. Second defendant also did not go into the box or contradict plaintiffs evidence. The evidence of D. Ws. 2 and 3 do not seem to me to be of any value. There is no justification in my opinion for the Subordinate Judges finding that the defendants had not been served at all.

4. It has, however, been broadly argued by the learned vakil for the respondents that the judgment of the Penang Court being a