A foreign judgment shall be conclusive as to any matter directly adjudicated upon, but if the judgment was not given on the merits of the case, no suit would lie on that judgment.

Kumaraswami Sastri, J.

1. Plaintiff is the appellant. The plaintiffs father had dealings with defendants 1 to 4 who are Mahomedan merchants who carried on business in 1914 and 1915 in Colombo. Defendants 1, 2 and 4 by their agents and defendant 3 personally executed a bond in favour of the plaintiffs father for Rs. 75,000 on the 29th September 1914 and also created a sub-mortgage document executed in their favour by third persons. The plaintiffs father filed suit No. 4186 of 1915 in the District Court of Colombo on the 25th May 1915 and obtained an ex-parte decree on the 18th June 1915 which is filed as Ex. A in this case. The decree states that the defendants did not appear either in person or by proctor or by counsel although duly served with summons. The property which was sub-mortgaged was sold in execution of the 10th January 1916 and was purchased by the plaintiff for a sum of Rs. 100 and finding that he could not obtain anything more by execution in the Colombo Court, the plaintiff (his father having died meanwhile) filed a suit in the Sub-Court of Tanjore on the foreign judgment and prayed for a decree for Rs. 56,765-4-11 the balance due under the judgment and decree of the Colombo Court. Various pleas were raised but it is only necessary to consider the plea that no suit would lie on the judgment of the Colombo Court as that judgment was not on merits. The Subordinate Judge dismissed the suit.

2. It is argued by Mr. Raja Ayyar for the appellant that the proceedings of the Colombo Court show that the decree was not ex parte but was on the merits, that the decree though passed without examination of witnesses was really on the merits, that even if it were not so he was entitled in this suit to prove his claim and that it was on the defendants to show that the plaintiffs claim in respect of the amount which he sues to recover is unfounded. So far as the first point is concerned, it is clear that the suit was not decided on its merits. The procedure in the District Court of Colombo is that where no defence is entered, an affidavit of service is filed and judgment follows. In the present case the defendants, though served, did not enter appearance or file any written statement. Thereupon the plaintiff filed an affidavit of service and a decree followed as a matter of course. Reference was made to Ex. D a certified copy of processes and their returns in suit No. 4186 of 1915 of the Colombo District Court but there is nothing there to show that any evidence was recorded or that the Court went into the merits though the defendants were ex parte. All that appears from Ex. D. is that when the case came on the 9th June it was called and the defendants who were said to be served were absent and that an ex-parte trial was fixed for the 18th June. On the 18th June the case was called and an affidavit of service was filed. On the 16th July a decree nisi was passed and on the 20th July the case was called, the defendants were absent and a decree absolute was made. Under the rules an affidavit of service had to be filed and the affidavit filed on the 18th June was simply an affidavit of service. No evidence was recorded as regards the merits of the claim. In fact as was pointed out before, the decree that was passed states that the defendants did not appear. There can be little doubt that the decree was not on the merits but was an ex-parte decree.

3. The next question is whether a decree could be passed on the foreign judgment. Section 13, Civil P C, enacts that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they are or any of them claim litigating under the same title except in the cases mentioned in Clauses (a) to (f) of the section. The clause which is material in the present case is Clause (b) which refers to judgments not given on the merits of the case; The argument of Mr. Raja Ayyar is that if it was given on the merits, it w