Panigrahi, C.J:— The litigation giving rise to this appeal has had a chequered career. The plaintiffs own 16.67 acres of land recorded in Khata No. 32 of Mouza Santhasara within the State of Dhenkanal. These lands were being enjoyed in four separate shares plaintiffs 1, 2 and 3 having one share each and the father of plaintiffs 4 and 5 being the other cosharer.
2. Sometime prior to 1930 plaintiff 1 leased out a small portion of the holding, measuring 1.28 acres, for cultivation on Bhag. The Tahsildar of the State recommended the resumption of the entire holding on the ground that the executant had mortgaged the lands without the authority of the State, and on 26-1-1931 the Ruler of Dhenkanal ordered resumption of the entire holding. Thereafter the lands were re-settled, on 21-9-1932, with the present defendant 2 and the father of the present defendants 3, 4 and 5. By an order of the Ruler, dated 21-11-1932 their names were mutated and pattas were granted in due course. But the plaintiffs did not surrender possession to the new tenants. They averred that they were still in possession of the homestead lands recorded in the aforesaid Khata though the defendants had taken forcible possession of the cultivated lands in January 1937. The plaintiffs complained to the Chief Minister of the State who by an order dated 7-12-1944, directed them to file a suit in the Civil Court and establish their title to the suit lands.
3. The present suit was accordingly filed on 23-5-1945 for a declaration that the plaintiffs are entitled to recover possession of the holding and that the resumption and re-settlement of the lands by the Ruler are illegal and void, and that the defendants had acquired no right in them. They pray that they may be put in possession of the lands and that the defendants be evicted as they are mere trespassers.
4. The suit was hotly contested by the defendants who raised a number of pleas regarding the maintainability of the suit and averred that the Civil Court had no jurisdiction to entertain it. The two issues that were material for the disposal of the suit were: (1) whether the suit is barred by limitation under Article 14, Limitation Act, and (2) whether it is barred by res judicata on account of a prior decision in favour of the defendants by the District Court of the Ex-State of Dhenkanal in O.S No. 38 of 1938-1939.
5. The learned Munsif, on a close examination of the resumption proceedings held that the resumption as well as the subsequent resettlement were altogether illegal and void. On the question of limitation he held that the suit being one for possession was governed by Article 142, Limitation Act and that Article 14 had no application to the facts of the case. But he held that the suit was barred by res judicata, by reason of the prior decision of the District, Judge, Dhenkanal in O.S No. 38 of 1938-1939. He accordingly directed the dismissal of the suit.
6. The plaintiffs appealed in Munsifi Appeal No. 110/22 of 1949, which was disposed of by the Subordinate Judge of Dhenkanal on 31-10-1949. The appellate Judge observes that the only point argued before him was with regard to the question of res judicata and that the other findings of the. Munsif were not challenged by the appellants before him. He held that the prior suit had been, instituted only against three of the present plaintiffs, namely plaintiffs 1 to 3, and that the present plaintiffs 4 and 5 were not represented in the suit.
7. In that view of the matter he set aside the judgment of the Munsif and remanded the suit, for further trial and disposal in accordance with the directions given by him. The learned Judge-observes in his order of remandi “Therefore I have no alternative but to remand the suit to the learned trial Court for fresh trial on the question of res judicata”. In his opinion, Article 14, Limitation Act did not apply as it was a title suit in which the plaintiffs based their title on the allegation, of dispossession by the defendants.
8. The learned Munsif who heard the suit after remand applied his mind only to a consideration of the question of res judicata and came to the finding that the suit was not barred by the principle of res judicata. He observes: “All other issues having been already decided in plaintiff's, favour, this suit therefore succeeds.”
9. The defendants went up in appeal to the Subordinate Judge in Munsifi Appeal No. 18/346 of 1951/50-1. The only grounds urged before him in the memorandum of appeal were that the learned Munsif should have told that the suit, was barred by limitation as well as by res judicata.
10. The Subordinate Judge again held that defendants 2 to 5 did not acquire any title to the disputed lands by virtue of the settlements made with them. He was of opinion that the plaintiffs' suit against the State should fail as there had been no valid service of notice under Section 80 of the CPC on defendant 1. He also held that the decision of the District Judge in the previous suit operated as res judicata so far as plaintiffs 1 to 3 were concerned, but that plaintiffs 4 and 5 were not debarred from maintaining the suit.
11. Ultimately, however, the suit was directed to be dismissed on the ground of limitation on the view that Article 14, Limitation Act was applicable. It is against this judgment of the Subordinate Judge, Dhenkanal that the plaintiffs have come up in second appeal to this Court.
12. The learned Subordinate Judge is of opinion that the order passed by the Ruler of Dhenkanal should be set aside within one year, before the plaintiffs can establish their title. In his view, the Ruler acted in his capacity as the highest revenue and executive authority of the State, in ordering resumption and re-settlement, and that in so doing he was acting within his jurisdiction as. Ruler though he might have exceeded the powers vested in him.
13. The error committed by the Ruler was in regarding Ex. 1 the deed of lease, as a mortgage bond, which, under the transfer rules prevailing in the State, entailed forfeiture of the holding. In support of this view reliance was placed on the decision of the Madras High Court in — ‘Tripurasundaramma v. Secretary of State’, 1928 Mad 282 (AIR V 15) (A). In that case the suit was instituted for a declaration that the resumption of an inam by Government and its conversion into raiyati was not binding upon the plaintiffs.
14. Ramesam J., held that where Government purported to act in exercise of the powers reserved to them under the terms of the grant, the act of Government would not be ultra vires if they erred in the interpretation of its terms, and cannot be regarded as a nullity. The question as to whether such a suit was governed by Article 14, Limitation Act was not decided as Article 120 was applied to the facts of that case.
15. Cornish J., also shared the doubts expressed by Ramesam J., about the correctness of an earlier decision of that High Court, in — ‘Secretary of State v. Ghulam Mohammad Khan’, 1920 Mad 885 (AIR V 7) (B), where it was held that an order of Government resuming an inam for alleged violation of a condition of the grant was a nullity if it was established that there had, in fact, been no violation. A mere alienation would not entail forfeiture of the grant if the services for which the inam was granted are maintained.
16. The earlier case reported in ‘1920 Mad 885 (AIR V 7) (B)’ arose out of a suit for recovery of two villages resumed by Government. Their Lordships held that the object of the suit being to recover possession of the villages from the Government and the order of resumption being a nullity as the contingency on which alone Government could resume did not arise, Article 14 had no application. If the plaintiff did not seek to recover possession of the villages, but only wanted an order of the Board of Revenue to be set aside with a view to obtain any relief in consequence of that order, the suit would come within Article 14.
17. Such was the case in — ‘Subbanna v. Secretary of State’, 1916 Mad 984 (1) (AIR V 3) (C), where the main relief asked for was for a declaration that the plaintiff was entitled to hold the land free of assessment. The learned Subordinate Judge has failed to see that in the Madras case relied on by him the suit was not one for possession of lands, but one for a declaration that the resumption of the suit inam by Government was not binding upon the plaintiffs.
18. Both the Courts below are agreed that the Transfer Rules of the Dhenkanal State did not entitle the Ruler to resume the holding. The Sub-divisional Officer of the State himself observed that the Transfer Rules did not provide for resumption in case of unauthorised lease. Under the rules then in force a mortgage could be executed with the permission of the State.
19. There was no rule laying down that in case of unauthorised lease the lands was liable to be resumed. The Ruler has referred to R. 10 of the Transfer Rules but this was not produced in Court. The rule has been quoted in the order of resumption, but it does not prohibit the lease of a portion of the tenant's holding. There was, therefore, an initial want of jurisdiction when the Ruler purported to resume the lands under the Rules on the ground of Ex. 1 being a mortgage.
20. There is a distinction between “want of jurisdiction” and “excess of jurisdiction”. Where the officer has no jurisdiction at all his act would be ultra vires but where, on an investigation of the circumstances which would give him jurisdiction, an officer decides or acts in a particular manner, any mistake as to the facts of the deciding factor would not oust his jurisdiction.
21. Reference may be made to — ‘Vasi Reddi v. Secretary of State’, 1920 Mad 1013 (AIR V 7) (D); — ‘Balwant v. Secretary of State’, 29 Bom 480 (E), which bring out the distinction between the two principles. As was observed by Mookerji J., in — Peary Lal v. Secretary of State’, 1924 Cal 913 (AIR V 11) (P), Article 14 applies to acts or orders done in the exercise of powers legally exercisable by the Executive.
22. In other words, the Article applies to acts or orders which need to be set aside. The Article has no application in cases where jurisdiction has been usurped. An order made without jurisdiction is a nullity and does not require to be set aside. To an order of this description Article 14 has no application.
23. The Privy Council had occasion to discuss the applicability of Article 14 in — ‘Dakheshwar Prasad Narain Singh v. Mt. Gulab Kuer’, 1926 PC 60 (AIR V 13) (G). That was a case of an action in ejectment and their Lordships of the Judicial Committee observed that the suit was not brought for the purpose of setting aside an order of the Revenue Court. It was simply an action in ejectment, its main purpose being to recover possession of certain lands allotted to the plaintiff. In a later case — ‘Laxmanrao Madhavrao v. Shrini was Lingo’, 1927 PC 217 (AIR V 14) (H), Sir John Wallis, delivering the judgment of the Board observed that
“if an order was illegal the plaintiff was not bound to file a suit to set it aside, but was entitled to wait until it was enforced against him; and the attempt to enforce it against him gave him the cause of action, which was admittedly within time.”
24. As I have already pointed out, the plaintiffs in the present case sued for possession of the lands after evicting the defendants, and the cause of action giving rise to the suit was the date of their dispossession, namely January 1937. The suit having been filed on 23-5-1945, admittedly within the period of 12 years after dispossession, was governed by Article 142.
25. Mr. Das appearing for the defendant-respondent drew my attention to a case of the Bombay High Court in — ‘Ganesh Sesho v. Secretary of State’, 1920 Bom 105 (1) (AIR V 7) (I). That case arose out of a suit for a declaration that the proceeding of the Revenue authorities forfeiting a particular survey number was ultra vires, and not binding upon the plaintiffs.
26. It was held that Article 14, Limitation Act would apply. It should be noticed that the suit was not one for possession of lands, nor was it a case of want of jurisdiction on the part of the revenue authorities, nor did it relate to an order of forfeiture.
27. The cases arising out of suits for setting aside an order of an officer of Government or for a declaration that such order is not binding upon the plaintiff, must be distinguished from those arising out of suits in ejectment where the title is put in issue and the question of resumption is incidentally raised. The applicability of the Article depends, not on the form of the suit but upon its real substance, and the plaintiff is not bound to come to Court for a declaration that the order is a nullity, until he is dispossessed or until his title is otherwise disturbed.
28. I am also of opinion that Article 14 in terms, would not apply to a suit of this kind where the order was passed, not by an officer of Government but by the Ruler himself. Whether such a suit against the Ruler would be entertainable in a Civil Court is a different matter, but even that objection cannot avail the defendants here as the plaintiffs were permitted by the Chief Minister of Dhenkanal to establish their rights in the Civil Court. I would therefore overrule this contention and hold that the suit is not barred by limitation.
29. The next and by far the most important contention raised by the defendants is that the present suit by the plaintiffs is barred by the operation of the principle of res judicata on account of the decision of the Dist. Judge, Dhenkanal in O.S No. 37 of 1938-1939. That was a suit for recovery of possession of 90 decimals of land out of the disputed properties and was decided ex parte as the present plaintiffs (who were the defendants therein) did not put in appearance.
30. The judgment shows that the present plaintiffs were still continuing in possession of the lands, and the defendants (who were the plaintiffs in that suit) relied on a mutation patta granted to them by the State. The learned Judge observes: “The mutation patta filed by the plaintiffs is proof of their title”. An amin was deputed to identify the plots which were in the possession of the present plaintiffs. Two other witnesses were examined to prove that the plaintiffs were so continuing in possession.
31. On these facts the learned Judge passed a decree for possession against the present plaintiffs on the basis of the patta granted to the present defendants. The contention raised on behalf of the defendants is that this judgment, though passed ex parte, is nevertheless binding upon the present plaintiffs.
32. It is urged that the question whether the resumption of the entire holding was legal or otherwise must be taken to have been impliedly decided in favour of the defendants as otherwise the mutation patta could not have been granted to them. In order to appreciate the force of this contention it is necessary to state what happened after the judgment was passed. The very Judge who decided the suit was also the Mutation Officer of the State, and on 7-12-1939 he reported to the Durbar by Ex. 2 as follows:
“The case of resumption is not one free from ambiguity and there are chances that the petitioners might get their holding or most part of it restored.”
33. He further observed:
“When there is a civil Court decree with respect to a part of the holding the only legitimate way through which the petitioner can seek redress is to move a competent civil Court.”
34. This report was made on a petition filed by the plaintiffs for restoration of the disputed lands from which they had been dispossessed. The Chief Minister approved of the proposal sent by the Mutation Officer and permitted the plaintiffs to file a civil suit.
35. Having regard to the above statement of Shri J.K Misra who was both the District Judge and the Mutation Officer, it is obvious that he studiously avoided going into the question of the validity or otherwise of the resumption, in his judgment in the Civil Suit. No issue was raised and no finding was recorded thereon.
36. The defendant's counsel argued that in the earlier suit there was an allegation in the plaint about the resumption and re-settlement of the lands by the Ruler and therefore that point should be taken to have been impliedly decided in that suit. I am unable to accept this contention. The only allegation I find in the plaint is to be found in para 2 which says that
“as the defendants mortgaged a portion of their lands without authority, the Tahasildar made an enquiry and reported. The defendants were dispossessed from all the lands in the Khata and new tenants were ordered to be settled. The plaintiffs paid Rs. 750/- at the auction held on 21-11-1932 and obtained a patta as new tenants”.
37. The plaint contains a further recital that the defendants were still in possession, and that an Amin had identified the plots. Nonetheless the defendants had not surrendered possession to the new tenants. Paragraph 4 of the plaint states that the defendants were still continuing in possession and that the plaintiffs were afraid to go upon the lands.
38. The plaintiff's prayer was that the defendants may be evicted from the lands and the plaintiffs may be put in possession. These allegations do not raise the validity of the resumption by the Ruler, and the root of the plaintiff's title is stated to be the Settlement and patta granted to them.
39. The plaintiffs concede that a judgment passed ex parte may, in certain circumstances, operate as res judicata, but rely upon Section 13 of the CPC, to render it ineffective. Their contention is that the judgment of the District Judge, Dhenkanal, is a “foreign judgment” within the definition of that expression given in the Code, and that it was not given on the merits of the case. It is accordingly argued that it cannot be regarded as conclusive and allowed to operate as res judicata.
40. Section 13 of the CPC, lays down that
“A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between same parties or between parties under whom they or any of them claim litigating under the same title except—
(a) ……………………
(b) where it has not been given on the merits of the case;
(c) ………………………
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;”
“Foreign judgment” is defined in Section 2(6) of the CPC, as “the judgment of a foreign Court”. “Foreign Court” means “a Court situated outside India and not established or continued by the authority of the Central Government”. The definition of the expression “foreign Court” has undergone several changes and the present definition was substituted by Act 2 of 1951. The old definition was as follows:
“‘Foreign Court’ means a Court situate beyond the limits of British India, which has no authority in British India, and is not established or continued by the Central Government or the Crown Representative.”
41. Now, on the date the decree was passed by the District Judge, Dhenkanal, in O.S No. 37 of 1938-1939, namely 28-2-1939, that Court was a “foreign Court” within the meaning of the definition of that expression as it then stood. On 1-1-1948 the Government of Orissa exercised jurisdiction over Dhenkanal State, in exercise of the powers conferred by Section 4 of the Extra Provincial Jurisdiction Act, B47 (Act 47 of 1947) read with Notification No. III B dated 23-12-1947 of the Government of India.
42. By a subsequent enactment known as the Administration of Orissa States Order, 1948, the Bengal, Agra and Assam Civil Courts Act 1887 (Act 7 of 1887) was extended to the area Which formerly comprised the State of Dhenkanal and all the Courts of Munsif or Subordinate Judges which had been constituted by the Dhenkanal Durbar were deemed to be constituted under the Bengal, Agra and Assam Civil Courts Act.
43. By a still later Notification, No. 4529-L dated 7-6-1948, the Cuttack Dhenkanal Judgeship was constituted covering the districts of Cuttack, Dhenkanal and Narasinghpur, with headquarters at Cuttack. The plaintiffs filed the suit out of which the present appeal arises on 23-5-1945.
44. Mr. Das therefore submitted that at that time the plea of res judicata was available to the defendants and ought to be given effect to, though the judgment of the Munsif was delivered on 3-1-1949, after the merger of Dhenkanal with Orissa. He also argued that the previous judgment of the Dhenkanal District Court cannot be deemed to be a ‘foreign judgment’ as by the time it was used as evidence, Dhenkanal had become merged in Orissa and ceased to before in territory.
45. The questions, therefore, that arise for decision are: (1) whether the judgment of the District Judge of the ex-State of Dhenkanal ceased to be a judgment of a foreign Court by reason of the merger of Dhenkanal with Orissa, and if it remained a foreign judgment (2) whether Section 13 of the CPC, can be relied upon by the appellants, having regard to the fact that the suit was instituted before the merger of that State with Orissa.
46. The crucial date which will determine whether a judgment is that of a foreign Court or not, is the date of the judgment and not the date Jon which it is sought to be used as evidence. It is unnecessary to refer to the several decisions of the different High Courts as the point has been settled by the decision of the Supreme Court in ‘Janardan Reddi v. The State’, 1951 SC 124 (AIR V 38) (J). In that case the petitioners had been convicted and sentenced to death by the High Court of Hyderabad, by judgments delivered on the 12th, 13th and 14th of December 1949.
47. The petitioners then moved the Supreme Court, under Article 136 of the Constitution as by then the State of Hyderabad had acceded to the Dominion of India as a Part B State. Under Article 374(4) the authority functioning as the Privy Council in Hyderabad State ceased to function, and all appeals then pending before the said authority were transferred to the Supreme Court.
48. It was contended by the petitioners that they had a right to move the High Court at Hyderabad for a certificate granting them leave to appeal to the Supreme Court, inasmuch as their petitions for leave to appeal to the Privy Council of Hyderabad were in fact pending on that date. In repelling this contention the Supreme Court observed that the important fact to be borne in mind was that the Hyderabad Courts were not Courts within the territory of India when they pronounced their judgments on 12th, 13th and 14th December 1949.
49. The territory of the Government of Nizam was never the territory of India before 26-1-1950 and, therefore, the judgments and sentences passed by the High Court of Nizam could not be considered to be judgments or sentences passed by a Court within the territory of India, and special leave to appeal to the Supreme Court was therefore refused.
50. In a recent case of the Allahabad High Court, ‘Maloji Rao v. Sankar Saran’, 1955 All 490 (S) (AIR V 42) (K), an ex parte decree was passed on 18-11-1948 by the District Judge, Gwalior, against the defendants who were residents of Uttar Pradesh. It was contended that the decree was a nullity as the defendants were non-resident foreigners and had not submitted to the jurisdiction of the Gwalior Court. The State of Gwalior acceded to the Dominion of India on 13-9-1948 before the suit was decided.
51. On the date the decree was passed the Court of the District Judge, Gwalior, was still a “foreign Court” within the meaning of the definition then in force. The present definition was substituted on 26-1-1950 when the Constitution came into force, by reason of the Adaptation of Laws Order, 1950, passed by the President. On a review of the entire case law Brajmohan Lal J., held that the decree passed by the District Judge of Gwalior on 18-11-1948 against the defendants was a nullity and could not be executed in Uttar Pradesh.
52. It was further held that the validity or otherwise of a decree is to be judged with reference to the date on which it was passed, and if it was a nullity on that day it cannot be made a valid and executable decree by reason of subsequent events. It is clear therefore that the date of Judgment is the determining factor and that the Court which passed Judgment in that case was a ‘foreign court’ according to the definition of that expression as it stood then.
53. The Mysore High Court also has taken the same view in Subbaraya Setty and Sons v. Palani Chetty and Sons 1952 Mys. 69 (AIR V 39) (L). There it was held that where a decree for payment of money was passed ex parte, before the Mysore State acceded to the Indian Union, by the Madras High Court against a respondent-resident in Mysore the decree cannot be executed by a Court in Mysore even after accession.
54. That decree was, by international law, a nullity in Mysore as it has been passed against a non-resident foreigner. It was further held that the accession of Mysore to the Indian Union could not have the effect of converting such ‘foreign decrees’ into valid and executable ones in Mysore Courts. Such decrees cannot be said to be those of a Civil Court in the territory of India within the meaning of Article 261(3) of the Constitution of India.
55. A case of the Calcutta High Court, — ‘Dominion of India v. Hira Lal’, 1950 Cal. 12 (AIR V 37) (M) lays down the converse principle. In that case a decree had been passed on 16-5-1941 by the Munsif of Jamalpur within the district of Mymensingh which became a part of the territory of Pakistan after 15-8-1947.
56. The Court of Small Causes at Calcutta refused to entertain the application for execution of such a decree as Pakistan was not a reciprocating territory and held that S. 13, read with Section 44 of the CPC was attracted and that the decree passed by the Jamalpur Court was a “foreign decree’ and was in executable in India. The person who intends to enforce a judgment of a foreign Court will have to satisfy the requirements of S. 13 and the subsequent integration of the area does not alter the character of the judgment.
57. I have, therefore, arrived at the conclusion that the judgment of the District Judge of Dhenkanal, sought to be relied on by the respondents in bar of the plaintiffs' claim is a foreign judgment and its binding character has to be judged with reference to the provisions of Section 13 of the CPC.
58. Learned counsel for the appellants next contended that as the judgment was passed ex parte it cannot be deemed to be one ‘on the merits’. He pointed out that some decisions make a distinction between an ex parte judgment passed on default of appearance of the defendants, and one passed on their failure to carry out an order of the Court. These contentions are sought to be supported by authority which I shall presently consider.
59. The applicability of the principle of res judicata should not be determined by technical I considerations of form, but by matters of substance within the limits allowed by law.
60. It has been held that even a decision in Land Acquisition Proceedings would operate as res judicata in a subsequent suit, if the issue raised had been decided in the earlier litigation — See ‘Mt. Bhagawati v. Mt. Ram Kali, 1939 P.C 141 133 (AIR V 26) (N) and — ‘Rajlakshmi Dasi v. Banarnali Sen’, 1953 S.C 33 (AIR V 40) (O).
61. Where plea of res judicata is founded on (general principles of law all that is necessary to be established is that the Court which heard and decided the former case was a Court of competent jurisdiction. But it should be remembered chat a decision passed ex parte would not operate as res judicata unless the subject-matter of the two proceedings is identical. In ‘New Brunswick Railway Co. v. British and French Trust Corporation’, 1939 A.C 1 (P) the view taken was that
“In the case of a judgment in default of appearance a defendant is only estopped from setting up, in a subsequent action, a defence which was necessarily, and with complete precision, decided by the previous judgment.”
62. It was also stated that if a writ is issued for a small claim the defendant may well think it is better to let judgment go by default, rather than incur the trouble and expense of contesting it, and that in such cases the default judgment on one bond cannot be used as governing the construction of 992 other bonds even if identical in tenor, as it would involve great hardship were the defendant precluded from contesting the later action case.
63. Relying on this observation Mr. Rao contended that even if the plea of res judicata were to prevail the plaintiffs would be precluded from claiming possession of the identical lands which were the subject-matter of the previous litigation and not the entire holding. Before the judgment of the foreign Court is given effect to it is necessary to see whether it was given on the merits within the meaning of Section 13(b) of the CPC and whether the plaintiffs could be held to have lost their title to the entire holding, even if the judgment satisfied that requirement.
64. In — ‘D.T Keymer v. Viswanatham Reddi’, 1916 P.C 121 (AIR V 3) (Q) the defendant appeared and contested in an action in the King's Bench Division of the High Court of England, but omitted to answer certain interrogatories served upon him by the plaintiff. Thereupon, the defence was struck out and judgment was entered for the plaintiff.
65. The appellants sued upon the judgment in Madras, and the defence was that the judgment had not been given on the merits of the action, and that consequently the action could not be maintained on that judgment alone in the Indian Courts and that the merits would have to be investigated.
66. Lord Buckmaster, delivering the judgment of the Board, held that the merits of the case were never investigated and the respondent was treated as though he had not defended it, and judgment was given on that footing. Their Lordships held that no such decision as that can be regarded as a decision given on the merits of the case within the meaning of S. 13(b) of the Code. They further held that the sub-section referred to 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.
67. A later case of the Privy Council, — ‘Oppenheim and Co. v. Mohdl Haneef, 1922 P.C 120 (AIR V 9) (R) is also to the same point, in that case a suit was brought in the High Court at Madras by a firm carrying on business in London, against the respondent a merchant of Madras. The plaintiffs had obtained a judgment in the King's Bench Division of the High Court on an award and obtained an ex parte decree against the respondent. The respondent pleaded that the judgment of the High Court of Justice in London was not binding upon him, as it was not given on the merits.
68. It was held by the Privy Council, relying on the earlier judgment in — ‘Keymer's case’ (Q), that an action upon judgment could not be maintained as the judgment had been entered in default of appearance and the action had not been tried on its merits.
69. The same point came up for decision before a Full Bench of the Madras High Court in — ‘Mohammed Kassim and Co. v. Seeni Pakir’, 1927 Mad. 265 (AIR V 14) (S) and Their Lordships held that under Section 13(b) of the CPC, a foreign decree obtained in default of appearance of the defendant without any trial on evidence is a case where the judgment must be held not to have been given on the merits of the case and no suit lies in British India on such foreign judgments.
70. In the referring order Venkatasubba Rao J. pointed out that there is no difference between a judgment obtained ex parte after some evidence — generally oral — had been recorded and one obtained on a special form of writ where formal proof is dispensed with and judgment is given as a matter of course.
71. I am therefore not inclined to attach any significance to the fact that the defendants had examined two witnesses to prove that the present plaintiffs were in possession before the judgment was delivered by the District Judge of Dhenkanal State. The real test in such cases is whether the judgment had been given against the defendants for default of appearance.
72. Nor am I inclined to accept the contention of Mr. Das that this is a case governed by the Explanation to Section 11 of the CPC. When the defendants made no appearance, it is impossible to apply the doctrine contained in the Explanation and to hold that the defendants might and ought to have raised a plea that the resumption was illegal.
73. The application of the doctrine should be restricted only to cases where there is contest and where the defendants fail to raise a plea which might and ought to have been raised. If this contention were to prevail then S. 13 would be reduced to silence.
74. Learned counsel for the respondents relied on the decision in — ‘Newton Hickie v. Official Trustee of West Bengal’, 1954 Cal 509 (AIR V 41) (T) where all the cases touching on the applicability of constructive res judicata are collected. The case before their Lordships of the Calcutta High Court was one in which the defendants had filed their written statements in the earlier litigation and taken part in the proceedings for a considerable time.
75. It was only during the last stages that they defaulted in appearance. In that case the respondents brought two suits for ejectment of tenants in respect of several tenancies. No objection was raised to the jurisdiction of the Court on the basis that there was only one tenancy carrying a rent of over Rs. 500/-.
76. After the suits were decreed the tenants filed a suit for a declaration that the decree passed in the previous suits was not binding upon them. The respondent raised the plea of res judicata and the Court upheld that plea on the ground that since no objection had been raised to jurisdiction passing decrees must be deemed to have decided the point against the tenants. That was not a case of a judgment passed ex parte and the question as to whether it was passed on the merits did not arise at all.
77. Ere before the Court and they did raise all such pleas as they considered to be open to them. In those circumstances a decree passed ex parte may operate as res judicata in respect of all the grounds of defence against the actual claim in the suit, as also of matters inconsistent with such claim which might and ought to have been raised.
78. The English rule on the subject appears to bemore stringent and the observations of Lord Herschell and Lord Watson in — ‘Gustave Nouvion v. Freeman’, (1890) 15 A.C 1 (U) would indicate that the mere fact that a foreign judgment was given in default of appearance does not render it any the less binding upon the parties to that judgment.
79. Under the English law, therefore, a suit lies upon a foreign judgment was given in default. But the Code of Civil Procedure makes a foreign judgment conclusive except in certain cases specified in the clauses. Clause (b) makes a departure from the English rule in insisting that a foreign judgment should have been given on the merits of the case.
80. In America also varying effect is given to the principle of res judicata according as the judgment was passed on the merits or ex parte. In a recent article published in — ‘65 Harvard Law Review (1951-1952) p. 836’ it is stated thus:
“The typical judgment on the merits is one entered after a full trial of the issues through pleadings, presentation of evidence, and argument by both sides. The policies underlying res judicata apply to judgments and also, in varying degrees, to actions terminated more summarily. Res judicata is given varying effect where the former adjudication, although final, was rendered on a procedural point, or without contest or examination of evidence”.
81. It would appear therefore that the expression ‘Judgment on the Merits' implies that it must have been passed after contest and after evidence has been let in by both sides.
82. It follows from the above discussion that the judgment of the District Court of Dhenkanal relied on by the respondent is not a judgment passed on the merits and is not conclusive of the point decided therein.
83. It would be contrary to natural justice as well to hold that the plaintiffs should be deprived of the entire holding measuring 16.67 acres because of a decision against them in regard to 90 decimals in an earlier suit. Even with regard to the actual extent involved in the previous suit the judgment is no bar to the plaintiff's claim as it was not passed on the merits of the case. The plaintiff's claim must accordingly be allowed in full and their title must be declared in respect of the entire holding in Khata No. 32. In the result, the appeal is allowed with costs throughout, and the plaintiffs shall have a decree in terms of the plaint.
P.V.B Rao, J.:— I agree.
V.B.B
84. Appeal allowed.