An ex parte decree, which is not based on any evidence, cannot be said to be a judgment on the merits of the case and is not executable in India.

1. This revision is directed against the order of the executing court, dated 20/09/1990, whereby the objection petition under Sec. 47 of the Civil P.C. (for short the Code), filed by the petitioners, against the execution of a decree granted by the Supreme Court of Ontario, has been dismissed holding that the decree was on merits and, therefore, executable.

2. The decree-holder took out the execution of decree dated 18/04/1985 passed by the Supreme Court of Ontario in Canada by filing an execution application in the District Courts at Chandigarh. The judgement-debtors by way of an objection petition contended that the judgement and decree dated 18/04/1985 passed by the Supreme Court of Ontario was not executable in India, therefore, the court had no jurisdiction to proceed with the execution thereof. The precise objection was that the decree had not been given on the merits of the case and was thus, not executable. The other objections taken in the objection petition are no longer in dispute. As already noticed, the objections to the execution of the decree were dismissed by the executing Court holding that it could not be said that the decree in question had not been given on the merits of the case.

3. The parties are not at issue that the decree sought to be executed and passed by the Supreme Court is by a Court having reciprocating territory within the meaning of S. 44-A of the Code. S. 44-A, inter alia, provides for execution of decrees passed by the superior Courts in reciprocating territories. Sub-Section (1) of S. 44-A of the Code clearly provides that where a certified copy of a decree of a superior Court of any reciprocating territory has been filed in the District Court, the same shall be executed as if it is a decree passed by the District Court. Sub-Sec. (3) of S. 44-A provides that the provisions of S. 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this Section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of S. 13 of the Code.

4. S. 13 of the Code provides that a foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except in certain situations covered by clauses (a) to (f) of this Section. Learned counsel for the petitioners has confined his attack only to one matter, namely, that the decree is not executable as it is covered by exception (b) of S. 13 of the Code, i.e. the decree sought to be executed has not been given on the merits of the case.

5. The controversy that needs determination in this case is, whether the decree in question has or has not been passed on the merits of the case. Once it is concluded that the decree of the foreign Court is on the merits of the case, it has to be held that the objections are frivolous and the decree is executable. But if it is held to the contrary then certainly the objections to the execution of the decree are well-founded and it has to be held that the decree is not executable.

6. In order to appreciate the contention of the learned counsel for the petitioners, it is necessary to notice the contents of the judgement of the Supreme Court of Ontario, which is sought to be executed. It reads :

"This action was heard this day without a jury at Toronto, Ontario, in the presence of counsel for the plaintiff, no one appearing for the defendants Gurdas Mann, Manjit Maan, Gurpanth Maan, Rajan Kumar, Dharampal Sidhu, Jatinder Dutt, Jaswant Bhola, Manjit Singh or Gurmeet Singh although such defendants were properly served as appears from the affidavits of Hadfield Clarke, all sworn the 3rd day of July 1984 and filed, and the affidavit of Shane Stevens, sworn the 4th day of July 1984 and file