Harchand Panaji v. Gulabchand Kanji

Scott, C.J:— But Order XXI, Rule 7, applies to execution of decrees passed by British Courts; decrees of foreign Courts are still regulated by section 13 of the Civil Procedure Code.

We submit that the defendant's remedy was to apply to higher tribunal of the Baroda State if he was not satisfied with the decree. Section 13 of the Code applies where the record shows on the face of it that the foreign Court had no jurisdiction, and not where the question of jurisdiction is expressly raised and decided. There is nothing in the Baroda law which is opposed to natural justice. The khata in suit having been passed within Baroda limits, the Baroda Court had territorial jurisdiction under the Civil Procedure Code of Baroda. The provisions of the Baroda Code are similar to section 17 of the Civil Procedure Code of 1882.

Secondly, even if the Surat Court could enter into the question, the defendant must be deemed to have voluntarily submitted to the jurisdiction of the Baroda Court and it is not now open to him to contend that the decree is not binding against the estate. See the observations of Napier, J., in Ramanathan Chettiar v. Kalimuthu Pillai where the decree was not ex parte. The defendant not only]put in his appearance in the Baroda Court but filed a written statement and contested the suit on various grounds. This is not a case of merely protesting against jurisdiction. He did not withdraw after the protest but took the chance of a decision on the merits. This distinguishes the present case from the cases relied on by the lower Court: Parry & Co. v. Appasami Pillai, Sivaraman Chelti v. Iburam Sahel(3), Shaik Atham Sahib v. Davud Sahib(4). The order dismissing the darkhast is thus bad in law and execution should be directed to proceed.

G.N Thakore for the respondent (legal representative of the defendant):— The Surat Court had jurisdiction to consider the question whether the Baroda Court had jurisdiction to pass the decree. Section 13(1) of the Code is clear. There could be no bar; otherwise there would be an anomaly, for it would mean that when a suit is brought on a foreign judgment, the question of jurisdiction can be gone into, and not when the decree on the same foreign judgment is sent for execution to a British Court. Such an anomaly could not have been intended by the Legislature. Then again the decree of the Baroda Court was without jurisdiction because the judgment-debtor admittedly resided within British India. The Baroda Court could not claim jurisdiction over a non-resident foreigner. The observations of the Privy Council in Gurdyal Singh v. Raja of Faridkot(5) cover the case. The deceased defendant having from the beginning protested against the jurisdiction of the Baroda Court could not be deemed to have voluntarily submitted to it, so that the decree has not the same effect against him as if pronounced in absentia. It cannot be said that the lower Courts were wrong in applying the test laid down in the Madras case referred to by them. The present case is governed by the decision in Haji Musa Haji Ahmed v. Purmanand Nursey. The English cases show that the defendant would not be barred by a decree passed under such circumstances: Rousillon v. Rousillon, Schibsby v. Westenholz, Emanuel v. Symon, Copin v. Adamson.

Desai, in reply:— There was a voluntary submission to the jurisdiction of the Baroda Court. There was no coercion or pressure put upon the defendant as in Parry & Co. v. Appasami Pillai(6). The ruling in Companhia De Mocambique v. British South Africa Company(7) applies and disposes of the defendant's contention.

Scott, C.J:— The lower Courts have declined to execute a decree of a Baroda Court against the respondent's father Kanji Kapura which had been transferred for execution against his estate to the Court of the Second Class Subordinate Judge of Surat.

The learned Judge of the lower appellate Court states that it was conceded that on the principles of International Law as laid down in Gurdyal Singh v. Raja of Faridkot(8), the decree would have been a nullity had the defendant not appeared and defended the suit in the Baroda Court, and that it was argued before him that the defendant had voluntarily submitted to the jurisdiction by employing a pleader to defend the suits. As to this the learned Judge of the lower appellate Court says that the defendant protested against the right of the Baroda Court to entertain the suit at the earliest opportunity and did not make any other defence.

We have referred to the statement of the pleadings and issues in the Baroda Court and find that the statement of the lower appellate Court is incorrect.

The defendant pleaded, first, that the plaintiff had no right to sue as the sum claimed was vested in him by inheritance as the brother of the plaintiff's father's deceased brother's widow. Secondly, that, if not, the suit was defective for want of parties as the other brothers of the plaintiff's father were not joined. Thirdly, that the plaintiff's suit could not be entertained as the money dealings relied on took place outside the jurisdiction of the Court. Fourthly, that the plaintiff's suit would not lie in that Court as the defendant had no property and did not reside or carry on business in Baroda territory. Fifthly, that the suit was time-barred.

Upon this defence four issues were raised:—

1. Is the suit defective for want of parties?

2. Is the suit barred by time?

3. Does the suit lie in this Court?

4. What relief should be granted to the plaintiff?

All the issues were decided in the plaintiff's favour after evidence had been adduced by both sides.

The case appears to us to be clearly one of voluntary submission to the jurisdiction, the defendant taking his chance of getting a decree in his favour: see Boissiere & Co. v. Brockner & Co. and Voinet v. Barrett. The case is a stronger one in favour of the appellant that that of Parry & Co. v. Appasami Pillai, relied on in the lower Courts, for there was not preliminary decision of the question of jurisdiction on the protest of the defendant and no circumstance of pressure such as the Madras Court thought existed in Parry & Co.'s case.

We set aside the decree of the lower appellate Court and return the darkhast for execution of the Baroda Court's decree in the Court of the Second Class Subordinate Judge of Surat.

The respondent must pay the costs of his opposition to the darkhast up to date.

Decree set aside.

G.B.R