Maclean, C.J:— This is a suit to recover the amount due under nine judgments, which the plaintiff has obtained against the defendant and others in the Supreme Court of Mauritius. The judgments are of various dates from the 8th February to the 29th March of the same year. The plaintiff alleges that the judgments are still in force and unsatisfied, and that there is an aggregate sum of about forty-six thousand rupees due thereunder. The defendants' case is that the Supreme Court of Mauritius was not a Court of competent jurisdiction to try the matter; that some twenty years or so ago he resided in that colony and carried on business as a merchant there, but that he left the colony in 1878 and did not return to it afterwards; that when he left he was carrying on business there in co-partenership with two persons, named Allam and Mahomed Baboo, under the firm of Hajee Kassim Mamoojee; and that down to the month of August 1896 that co-partnership or business was carried on by Allam and Mahomed Baboo under a power-of-attorney from the defendant; that the co-partnership was dissolved in the month of August 1896, and on that date the defendant ceased to carry on and that he has not since carried on any business whatever in the colony; that neither at the dates of the institution of the suits nor of their determination nor at any time during that period was he domiciled in the colony, or bound by its laws, and that he was not subject to the jurisdiction of the said Supreme Court; that he was served with no process or summons in the suits; that he did not appear in any of them; that before the recovery of the judgments he had not any notice or knowledge of any process or summons or of any proceedings in the suits or any opportunity of defending himself therein; that he was not subject to the laws of the said colony at any time during the pendency of the suits; that he was not then, nor is he now, under any obligation to submit to the jurisdiction of the Supreme Court of that colony; and the defendant denies that the sum or any part of the sum is due. Mr. Justice Sale has given judgment in the plaintiff's favour, hence the present appeal.
I think it is open to the defendant, under explanation (6) of s. 13 of the Code of Civil Procedure, to show that the Court, which passed the foreign judgments, was not a Court of competent jurisdiction. The plaintiff put in the judgments, but he has not shown that they are unsatisfied: there were several other defendants to these suits who might or might not have satisfied them. The defendant has been called. He has sworn to the facts which I have mentioned above, and he has not been cross-examined upon that part of his case except as to his revocation of the power-of-attorney on the dissolution of the partnership. I think we may accept his statements as correct. Apparently the defendant was adjudicated a bankrupt in Mauritius in June or July 1898; a receiver was appointed of his estate; and he submits that such bankruptcy proceedings, which were at the instance of the present plaintiff, who was the petitioning creditor, are a bar to the present suit.
Upon these facts I feel a difficulty in saying that the Supreme Court of Mauritius had jurisdiction to entertain the suit. The defendant ceased to be either permanently or temporarily resident there after 1878, and according to his evidence he did not carry on any business there after August 1896. I do not think that the plaintiff has substantiated that the defendant was carrying on business there at the date of the suits in 1898. The plaintiff suggests rather than proves that Allam was — managing his business and carrying it on under a regular power-of-attorney from the defendant, but the defendant has sworn that this power-of-attorney was revoked. In support of this part of the case, the plaintiff sought to put in evidence the letters of the 3rd and 4th November 1899 from Messrs Pitter and Fraser in Mauritius respectively as evidence of the fact there stated, viz., that Allam Khan represented the defendant and managed his business under regular powers-of-attorney. He has sought to put them in under s. 20 of the Evidence Act, but I do not think they are admissible under that section.
The law on the subject is laid down in (amongst others) the cases of Gurdyal Singh v. Raja of Faridkote, Schibsby v. Westenholz, Rousillon v. Rousillon. The Supreme Court of Mauritius is a foreign Court within the meaning of s. 2 of the Code and the judgments are foreign judgments; and the judgments must be taken to have been pronounced against, the defendant in absentem. No doubt, in the recital in the judgment as to the issue of the writ against the defendant, it is stated that he was duly represented by Allam, but it is equally clear on the face of the judgments that there was no appearance entered by the present defendant, nor is there anything to show that the writ was ever served on Allam as representing the defendant. Mr. Justice Sale on this head considers he must take it that the Mauritius Court satisfied itself that the defendant's agent was authorized to defend the suits on the defendant's behalf. This, I take it, is a presumption only, see Molony v. Gibbons, which is rebutted by the evidence that the power-of-attorney was revoked in 1896. It is contended, however, for the plaintiff that without contesting the principles laid down in the cases I have referred to and conceding that the judgments here are foreign judgments of a foreign Court, the defendant is not a foreigner within the moaning of the rule laid down in these cases, inasmuch as he is a native of British India, a subject of the Sovereign both of the colony of Mauritius and of British India, and that the rule only applies to the case of foreigners, who owe neither allegiance nor obedience to the power, the Courts of which have passed the judgment sued upon. There is, however, in this case nothing to show that any legislation exists of the sovereign power giving the Courts of Mauritius jurisdiction over a British subject, wherever he may be, and placing him under the jurisdiction of the Courts of Mauritius, or at least making it compulsory for him to come and to submit to that jurisdiction. Courts generally exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction and, apart from some statutory power, there is nothing to show that such exists in the present case. The Court has no power to exercise jurisdiction over any one beyond its limits (see Whaley v. Busfield. I think the defendant here was a foreigner within the meaning of that term as used in the cases I have mentioned, otherwise the result would be that, upon a judgment obtained in a Court of any colony of the British Crown against an absent person, who was not a native of or either permanently or temporarily resident or domiciled within that colony at the time of the suit or of the judgment passed against him in absentem, he might be successfully sued upon that judgment in any other Court within the British dominions. This view appears inconsistent with the decision in the case of Turnbull v. Walker. When Mr. Dicey in his work on “Conflict of Laws” speaks of “Foreign” he means “not English.”
Upon the best consideration I can give to the case, the defendant in my opinion was not subject to the jurisdiction of the Supreme Court of Mauritius when the judgments sued upon were passed, and it is open to him to show in defence of the present suit, and he has shown successfully, that the Supreme Court of Mauritius was not a Court of competent jurisdiction in the matter.
In my opinion the appeal must succeed and the suit must be dismissed with costs, including the costs of the appeal.
Prinsep, J.:— I am of the same opinion.
Hill, J.:— I am of the same opinion.
Attorney for the appellant: Ganendro Narain Dutt.
Attorneys for the respondent: Pugh & Co.
S.C.B