The main legal point established in the judgment is that even an ex parte judgment may be deemed to be a judgment given on the merits of the case if some evidence is taken and the judgment is based on that evidence.

B. L. NARASIMHAM, C. J.

( 1 ) THIS is an appeal by the plaintiff against the decision of the Additional Subordinate Judge of Cut-tack dismissing his suit for recovery of a sum of Rs. 6000/- from the respondent on the basis of a decree given by the Second Judge of Rangoon (Ext. 2) in Suit No. 1276 of 1951, between the same parties.

( 2 ) THE learned Judge of the Rangoon Court decreed the plaintiff's claim for Rs. 4318/8/0 on 9-6-52 and the plaintiff after adding interest at 6 per cent per annum, filed the suit under appeal. The suit is thus based on a foreign judgment.

( 3 ) THE learned lower court, relying on Division Bench decision of this Court reported in Chintamoni Padhan v. Paik Samal, AIR 1956 Orissa 136 held that the foreign judgment was not given on the merits of the case and that consequently Section 13 (b) of the Civil Procedure Code would not apply. He further held that the decree of the Rangoon Court could not be executed here because, at the time of the institution of the suit, Burma was not a 'reciprocating territory' within the meaning of Section 44a of the Civil Procedure Code.

( 4 ) THE judgment of the Rangoon Court may be quoted in full:

"civil Regular Suit No. 1276 of 1951. Dated Rangoon the 9th June 1952. T. Choudhury. . . . . Dayanidhi Patra. Before :- U. Shwe B. A. , B. L. 2nd Judge of the Court. The plaintiff claims Rs. 4318/8/0 from the defendant for price of goods sold and delivered. The defendant filed written statement saying that some of the goods sold were returned to the plaintiff as being unfit and unserviceable and that he had paid Rs. 1702-12-0 as the price of goods and further questioned the correctness of the value of goods claimed. He fails to put in his appearance on the day fixed for hearing and his lawyer Mr. Chaube withdraws his power for want of some instruction. The suit therefore proceeds ex parte. The points raised by the defendant have to be proved by the defendant except for value of the goods supplied. Plaintiff has given evidence that the value of the goods supplied was fixed at the time of the purchase, and that no articles had been returned to him and no payment has been made for the goods. There is, therefore, a prima facie case for him. The suit is accordingly decreed in the sum of Rs. 4318-8-0 with costs and interest at court rate, from the date of suit till date of relisation.

Sd. Shwe Bin, Second Judge, 9-6-52. "

Before the Rangoon Court, though the defendant filed a written statement raising several objections he failed to appear on the date fixed and allowed the suit to be decreed ex parte. But before passing, an ex parte decree the learned Judge took the evidence of the plaintiff and then held that the claim, was proved. He also over-ruled the objections raised by the defendant in his written statement against the claim of the plaintiff. It is true that ultimately he held that there was a "prima facie case" for the plaintiff. Here the expression "prima facie" merely indicates that it is an ex parte judgment inasmuch as, due to the default of the defendant, the plaintiff was not cross-examined, nor was any evidence adduced on behalf of the defendant.

( 5 ) ON the atoresaid facts, the main question for consideration is whether the foreign judgment can be said not to have been given on the "merits of the case"--for the purpose of Section 13 (b) of the Civil. Procedure Code.

( 6 ) THE leading decision on the aforesaid section is that reported in D. T. Keymer v. Viswanathan Reddi, AIR 1916 PC 121. In that case the defendant's defence was struck out as he failed to answer the interrogatories and the plaintiff's claim was decreed by the foreign court. The plaintiff was not examined as a witness, nor did the Court give any reason for holding that the plaintiff's claim was proved. It was therefore held by the Privy Council that the judgment was not given on the merits of the case.

( 7 ) IN innumerable subsequent decisions given by the High Courts in India the question as to