T. Sundaram Pillai v. Kandaswami Pillai

JUDGMENT

The appellant in this case is the holder of a decree obtained in the Court of the District Munsif of Trivandrum against two defendants. The first defendant was married to the appellant's daughter and the appellant in filing his suit in Trivandrum alleged that he had furnished the money to pay for expenses of this marriage. He alleged further that both the first defendant and his elder brother the 2nd defendant had promised to repay that money to him. The 1st defendant did not contest his plaint in Trivandrum. The 2nd defendant after being first set ex-parte had the ex-parte order set aside and then filed a written statement in which he attacked the plaintiff's claim in a number of ways one of which was by questioning the jurisdiction of the Trivandrum Court. After filing the written statement, however, he withdrew from further opposition and the result was that a decree was passed in favour of the present appellant against both the defendants. In 1937 the appellant applied in the Court of the District Munsif of Sattur, Ramnad District, to execute the decree which he had thus obtained in Trivandrum against a joint family property in the hands of the 2nd defendant who is the respondent in this appeal. The respondent resisted this application on the ground that under S. 13, Civil Procedure Code, the judgment of the Trivandrum Court could not be executed in British India. The learned District Munsif overruled this objection and ordered execution to proceed, but the learned Subordinate Judge of Ramnad upon appeal set aside the District Munsif's order and dismissed the appellant's application. This is an appeal against the order of the Subordinate Judge.

This question has to be decided entirely with reference to the clauses to be found in S. 13, Civil Procedure Code. No less than four of these clauses are relied upon by the learned Advocate for the respondent in this appeal. It is stated for him that the decree of the District Munsif of Trivandrum was based upon a judgment pronounced by a Court which had not jurisdiction to deal with the suit, that it was not given on the merits of the case, that it had been obtained by fraud and that it sustained a claim founded upon a breach of the law in force in British India. These four clauses will have to be considered one by one.

The first objection raised is that the Trivandrum Court had no jurisdiction to try the suit as between the appellant and the respondent because they were residents in British India and the cause of action arose in British India. It is unnecessary, however, to decide whether the Court was in fact competent to deal with the suit if it is shown that the respondent had submitted to the Court's jurisdiction. It has already been stated that the respondent applied to the Court to set aside the ex parte order and then filed a written statement in which the claim of the plaintiff was attacked on various grounds including that of the jurisdiction of the Court. It has been held in Harris v. Taylor(1), that the action of a defendant in filing a written statement in Court and attacking the jurisdiction of the Court amounts to submission to that jurisdiction as he is asking the Court to decide a point in controversy between him and the plaintiff. Even therefore without any contest on the other issues in the suit a mere submission of the issue of jurisdiction to the decision of the Court amounts to the acceptance of that Court's jurisdiction within the meaning of Harris v. Taylor. There are no rulings to the contrary in this country. It seems to me therefore that the District Munsif was right in holding that the first clause in S. 13 does not apply to the present case.

The second question is whether this decision has been given on the merits of the case. It is argued for the respondent that the decision is an ex parte decision and therefore is not one on the merits of the case. Here again the facts must be remembered that not only did the defendant file a written statement in which he raised various issues but that a decree was not given until the plaintiff had actually been examined in the witness-box. No doubt his examination was formal and brief and was not subjected to cross-examination but it cannot, I think, be successfully argued that the decree was based upon the fact of the failure of the defendant to appear and must be deemed to have been based upon the evidence given by the plaintiff. There is a clear authority which governs the facts of this case in Venkatachalam Chetty v. Pichai Ammal and no authority to the contrary. That ruling is binding upon me and I find that here also the learned District Munsif was right in holding that the decision of the District Munsif of Trivandrum was one on the merits of the case.

Cl. (e) in S. 13 says that the judgment of a foreign Court cannot be executed in British India where it has been obtained by fraud. This is a point which was not apparently made before the learned District Munsif, but in appeal before me the learned Advocate for the respondent relies upon it also. All that can be said on this point is that the case brought by the plaintiff was a false case and that the 1st defendant assisted him in obtaining a decree by withdrawing from any resistance. It does not seem to me that the words “by fraud” can possibly be applied to circumstances such as these. It cannot be argued that merely because a plaintiff obtains a decree upon evidence which is believed by the Court but which in fact is not true, he has obtained that decree by fraud. There must be fraud connected with the procedure in the suit itself to bring the matter within this clause. This clause also therefore does not apply to the present case.

Finally Cl. (f) in S. 13 says that the judgment of a foreign Court cannot be executed in British India where it sustains a claim founded on a breach of any law in force in British India. It has already been stated that the appellant asserted in his plaint in Trivandrum that both the defendants had promised to repay him the amount which he spent on the 1st defendant's marriage. Now both the defendants at that time were minors according to the law in force in British India. For although they were above the age of 18 they had guardians appointed for them under the Guardian and Wards Act and therefore did not attain majority until the age of 21. It is argued therefore that the plaintiff-appellant brought his case upon a contract which according to the Contract Act in force in British India he was not competent to make with the defendants and that this is a breach of the law as it is observed in this country. The learned District Munsif however points out that an examination of the plaint will show that it was not on this ground alone that the plaintiff brought his claim. No doubt he asserted that there was this agreement to repay him the money which he had spent, but he claimed repayment of that money independently of the agreement as money which was due from the joint family consisting of the two defendants to reimburse him for what he had spent upon a marriage which was a duty devolving upon that family. The learned District Munsif held accordingly that the appellant would have been able to sustain a good case for a decree under the provisions of S. 68 of the Contract Act. S. 68 of the Contract Act deals with necessaries and it is perhaps a little difficult at first sight to see why the marriage of a young man should be considered “necessary” within the meaning of that section. But I have been shown an authority of a Bench of the Patna High Court in Pathak Kali Charan Ram…Plaintiff v. Ram Deni Ram…Defendant ., which has applied S. 68 to very similar circumstances. In any case whether that be the correct view to take of S. 68 or not is, I think, of no importance in the decision of this appeal. Cl. (f) says “where it sustains a claim founded on a breach of any law in force in British India.” This claim is founded partly perhaps upon a breach of the Contract Act, but also partly upon a claim under the Contract Act which in no way involves its breach. Whether that claim is a good or a bad one it is not for me now to decide. The District Munsif of Trivandrum has given a decree to the appellant and that decree sustains a claim which was not wholly founded upon a breach of the Contract Act. It seems to me therefore that the appellant cannot be prevented by Cl. (f) of S. 13 from executing his decree in British India.

The result is that S. 13 provides no bar for the present execution application and this appeal must succeed and the order of the District Munsif be restored and execution be ordered to proceed. The respondent will pay all appellant's costs hitherto incurred.

Leave to appeal is refused.

Appeal allowed.

N.R.R