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Judgment
Krishnaswamy Reddy, J.—This appeal arises out of the order of the learned First Additional Subordinate Judge, Cuddalore, dismissing the
petition, E. P. No. 201 of 1967 filed for executing the decree in O. S. No. 598 of 1966 of Singapore High Court.
The plaintiff-petitioner who is the appellant filed the suit against the respondent for recovery of a very large sum on the basis of the alleged
advances to the firm. of which he was a partner, in Singapore High Court. She obtained a decree against the respondent and sought to realize the
decree amount of Rs. 3,90,432.01 with interest and costs, by attachment and sale of the immovable properties belonging to the respondent in the
Court of the Subordinate Judge, Cuddalore. The execution Petition was filed u/s 44-A, CPC since the decree of the High Court of Singapore is
the decree of a reciprocating territory.
The Execution Petition was resisted by the respondent on the following grounds, (a) that there was no reciprocating agreement between India
and Singapore after Singapore became an independent territory in August, 1965, and that, therefore, Section 44-A, CPC will not apply to the
decree passed by the Singapore High Court; (b) that he never submitted to the Jurisdiction of Singapore High Court, that, therefore, Singapore
High Court had no jurisdiction to pronounce judgment or pass decree against him and that therefore the judgment and decree was a nullity; and (c)
that the judgment has been given on default of appearance without any trial or evidence and (d) since the decree was not one passed on merits, the
decree cannot be executed u/s 44, Civil Procedure Code.
The learned First Additional Subordinate Judge, Cuddalore, while overruling the grounds of objection raised by the respondent about the
maintainability of the execution petition u/s 44-A, Civil Procedure Code, accepted the other grounds of objection raised by the respondent and
dismissed the Execution Petition.
It was not seriously disputed before us about the maintainability of the Execution Petition u/s 44-A, Civil Procedure Code. But the learned
counsel for the respondent reiterated the other two grounds raised in the lower court that the decree passed by the Singapore High Court was not
competent as the respondent had not submitted to its jurisdiction and that the decree could not be executed as it was not passed on merits.
We will first dispose of the contention that Section 44-A, CPC will not apply as the territory of Singapore is not a reciprocating territory. The
relevant provisions of Section 44-A, CPC read thus:
Section 44-A Where a certified copy of a decree of any of the Superior Courts of any reciprocating territory has been filed in a District Court, the
decree may be executed in India as if it had been passed by the District Court.
Explanation. 1: ''Reciprocating territory'' means any country or territory outside India which the Central Government may by notification in the
official Gazette, declare to be a reciprocating territory for the purposes of this section; and ''superior Courts'', with reference to any such territory,
means such Courts as may be specified in the said notification......................
The Central Government issued a Notification G. S. R. 1225 as provided in Explanation 1, on 17-6-1968. It reads thus:
In exercise of the powers conferred by Explanation I of Section 44-A of the Code of Civil Procedure, 1908 (V of 1908), and in supersession of
the notification of the Government of India in the Ministry of Law No. F-29 III/53-1, dated 1st September, 1955, the Central Government hereby
declares the Republic of Singapore to be a reciprocating territory for the purpose of the said section and the High Court of the Republic of
Singapore to be a Superior Court with reference to that territory.
The notification of 1st September, 1955, referred to in the above notification is in the following terms:
S. R. O. 1867: In exercise of the powers conferred by Explanation I of Section 44-A of the Code of Civil Procedure, 1908 (Act V of 1908), the
Central Government hereby declares the Colony of Singapore to be a reciprocating territory for the purposes of the said section and the Supreme
Court of the Colony of Singapore to be a Superior Court with reference to that territory.
The said notification declared and recognized Singapore as reciprocating territory and the High Courts of the said territory as superior courts for
the purpose of Section 44-A, Civil Procedure Code. The judgment and decree sought to be executed by the appellant were that of the High Court
of Singapore. The judgment is Ex. A-17 dated 30-7-1966. The notification S. R. O. 1867 dated 1st September, 1955, was in force on the date
when the decree was passed, namely, 30-7-1966. That notification was superseded by the later notification G. S. R. 1225 dated 17-6-1968 when
the Colony of Singapore had become a Republic. It is, therefore, clear that at the time when the decree was passed by the High Court of
Singapore, Singapore was a reciprocating territory. Section 44-A, CPC will apply to the execution of the decree passed by the High Court of
Singapore for execution in the Indian Courts.
The next point for consideration is whether the respondent submitted to the jurisdiction of the High Court of Singapore and whether the decree
passed against the respondent was by a Competent Court.
The following facts are relevant for consideration: The respondent is one of the three partners of the firm run under the name and style of ""R.
M. V. Vellachi Achi"" which was doing money lending business at No. 47, Market Street, Singapore. The partnership appears to have been started
on 11-2-1951-Vide Ex. A-1, the certificate of registration. The appellant and respondent and one N. V. Shanmugham Chettiar were the partners.
They were admittedly living in India. The partnership business was carried on in Singapore by a Power of Attorney Agent of the firm, one
Manickam, by virtue of the General Power of Attorney granted to him by the appellant which was executed and registered in India on 10th March,
1951-vide Ex. A-3. The said Manickam on behalf of the firm was filing suits in Singapore Courts for recovery of moneys due to the appellant by
the parties in Singapore. One of the three partners, namely, N. V. Shanmugham Chettiar died in 1959. The partnership business continued even
after the death of Shanmugham Chettiar. Manickam, the power of Attorney Agent, executed a deed of substitution in favor of his son, Raghavan
on 16-7-1959 conferring all the powers given to him by R. M. V. Vellachi Achi under the power of Attorney Deed dated 10-3-1951.
The contention of the respondent is that he was not a subject of the Singapore Government at any time, that he was a non-resident foreigner
with reference to that Government, that he was neither a permanent nor a temporary resident of Singapore either before or at the time of the
institution of the suit or thereafter and as such the Court at Singapore had no jurisdiction to pass a decree against him and that, therefore, the
judgment Ex. A-17 was not passed by a court of competent jurisdiction and as such, the judgment was a nullity.
No oral evidence has been let in by the parties since the appellant conceded before the trial court that the respondent in an Indian subject and
never resided in Singapore.
The learned First Additional Subordinate Judge on this point found that the respondent did not submit to the jurisdiction of the Singapore
Courts and that the Singapore Court which passed the Judgment Ex. A-17 against the respondent is not competent to pass such a judgment and
the judgment, therefore, was a nullity.
The appellant relied upon Exs. A-3 to A-8 to show that the respondent submitted to the jurisdiction of the Courts at Singapore. Ex. A-3 dated
10-3-1951 is the General Power of Attorney given by R. M. V. Vellachi Achi, the appellant, to one Manickam to carry on the abovesaid firm in
Singapore. Exs. A-4 to A-8 are the certified copies of the memorandum of judgment in the suits instituted by the Power of Attorney Agent against
the local residents for the moneys alleged to have been due by them. The appellant, therefore, contends that the respondent being one of the
partners of the firm and that since the firm had filed several suits in the Courts at Singapore, the respondent must be deemed to have submitted to
the jurisdiction of the Singapore Courts. It is contended by the respondent that Ex. A-3 was not executed on behalf of the partnership and that the
suits covered by the judgments Exs. A-4 to A-8 do not indicate that the respondent had submitted to the jurisdiction of the Courts at Singapore. It
is also contended by him that even assuming that Exs. A-3 to A-8 were deemed to be on behalf of and by the partnership, since the partnership
was dissolved in 1962, these documents would be of no avail as the judgment Ex. A-17 was obtained in 1966 subsequent to the dissolution of
partnership.
It is well-established that the following circumstances would give jurisdiction to the foreign courts: (1) Where the person is a subject of the
foreign country in which the judgment has been obtained against him on prior occasions: (2) where he is a resident in the foreign country when the
action is commenced; (3) where a person selects the foreign Court as the forum for taking action in the capacity of a plaintiff, in which forum he is
sued later; (4) where the party on summons voluntarily appears; and (5) where by an agreement, a person has contracted to submit himself to the
forum in which the judgment is obtained-vide the decision in Ramanathan Chettiar v. Kalimuthu Pillai, ILR 37 Mad 163 AIR 1914 Mad 556.
There is no dispute that the respondent was not a resident of Singapore at any time. He never appeared individually in Singapore Courts either
as plaintiff or defendant or in any other capacity. It does not appear that the respondent has contracted to submit himself to the forum of Singapore
Courts in which the present Judgment was obtained by the appellant. Exs. A-4 to A-8 show that the suits against the local residents were filed by
Ravana Mana Vena Vellachi Achi for the recovery of monies in pursuance of Ex. A-3 the Power of Authorization executed by the appellant.
It may be necessary to note in this context whether Ex. A-3 the power of attorney executed by the appellant was on behalf of the partnership.
In Ex. A-1, the application for registration of the partnership, dated 24th February, 1951, in compliance with the provisions of the Business Names
Ordinance, 1940 of Singapore, the business name has been given as ''R. M. V. Vellachi Achi'', constitution of the business as ''partnership'', the
general nature of business as ''money lending'' the principal place of business as ''47, Market Street'' and the date of commencement of business as
11th February, 1951"". In the column of partners, the names and addresses of the following three persons are mentioned: (1) Ravana Mana Vena
Vellachi Achi, wife of Ramanathan Chettiar, Kottaiyur, Ramnad District, South India--(appellant); (2) Ravana Mana Ana Ramanathan Chettiar,
son of Annamalai Chettiar, Karaikudi, Ramanad District, South India--(respondent); and (3) Ravana Vena Shanmugham Chettiar, son of
Narayanan Chettiar, Viramattur, Ramnad District, South India. This application was again renewed on 5-11-1959. Ex. A-1 thus shows that there
was partnership business in money-lending carried on in the name of partnership of ""R. M. V. Vellachi Achi"", the partners being the appellant, the
respondent and one Shanmugham Chettiar. Shanmugham Chettiar died before the renewal of the application and the partnership, after November,
1959, is said to have continued with the appellant and the respondent as partners.
Ex. A-3 is the power of authorization purported to have been executed by R. M. V. Vellachi Achi in favor of Manickam on 10th March,
1951, in India to carry on the money lending business at No. 47, Market Street, Singapore and in particular, to sue, enforce or to defend, answer
and oppose all actions and other legal proceedings touching any matters concerning the money lending business.
It is the case of the respondent Ex. A-3 was not executed by the appellant on behalf of the partnership and it was on her own behalf and that
Ex. A-3 would not be binding on them. There is some force in this contention. Though Ex. A-3 was admittedly executed in India by the appellant,
the respondent and the other partner Shanmugham Chettiar had not joined in the execution of Ex. A. 3. Nor does Ex. A. 3 show that the appellant
was executing Ex. A-3 as managing partner or that she was authorized by the partners to execute Ex. A-3. On the other hand, she described
herself in Ex. A. 3 as Ravana Mana Vena Vellachi Achi otherwise known as R. M. V. Vellachi Achi or RM. V. Vellachi Achi, (wife of
Ramanathan Chettiar) or Kottaiyur. She described the business in Ex. A3 in the following terms:
................... business of money lender now carried on by me in the Colony of Singapore and the Federation of Malaya and elsewhere under the
style of Ravana Mana Vena Vellachi Achi and/or R. M. V. Vellachi Achi or RM. V. Vellachi Achi at No. 47, Market Street Singapore.............
The appellant has treated this business as her own business in Ex. A-3. It is, therefore, doubtful whether Ex. A-3 was executed by the
appellant on behalf of the partnership and it would, therefore, follow that the suits filed by the Power of Attorney Agent. Manickam or his son,
Raghavan who was substituted in the place of Manickam by Ex. A-9 could not be deemed to have been filed on behalf of the partnership.
There is no indication in Exs. A-4 to A-8 that the suits were filed on behalf of the partnership either by Manickam or Raghavan as the Power
of Attorney agents of the partnership. We are of the view that Ex. A-3 executed by the appellant in favor of Manickam does not bind the
respondent and the suits filed in pursuance of Ex. A-3 against the local residents of Singapore were not on behalf of the partnership and, therefore,
the respondent cannot be said to be a party in those proceedings subjecting himself to the jurisdiction of Singapore Courts.
Even assuming that Ex. A-3 was executed on behalf of the firm and the suits were filed on behalf of the partnership, we do not think that the
respondent submitted to the jurisdiction of the Supreme Courts as an individual. It was the firm which submitted to the jurisdiction of the Singapore
Courts by filing suits and not the individuals constituting the partnership. If any action was taken in the foreign courts by or against the firm which
submitted to its jurisdiction, such an action will give jurisdiction against the firm, in subsequent proceedings. But the suit No. 598/66 instituted in
Singapore High Court cannot be deemed to be a suit against the firm. It was a suit by the appellant in her individual capacity against the respondent
and two others for the recovery of moneys alleged to have been due from them. This suit was filed admittedly after dissolution of partnership.
This point has been made clear by the decision of this Court in K.N. Guruswami and Others Vs. Muhammad Khan Sahib, . The appeal in that
case was heard by a Division Bench consisting of Venkatasubba Rao and Reilly, JJ. In that appeal, a question was raised as to the effect of an ex
parte judgment passed by a foreign Court against an absent foreigner. The facts of that appeal are briefly these:
The appellants therein were subjects of the Mysore State and they filed a suit in the District Court of Bangalore against three defendants. The
suit was based upon a promissory note alleged to have been executed by the defendants therein and also upon a contract, which they were stated
to have entered into. The third defendant in that suit who was the respondent in the appeal was a British subject and was residing at the time of the
suit in the District of Coimbatore where he was served with the summons in the suit. He did not appear, and a judgment was passed by the
Bangalore Court against him ex parte. The appellants sought to execute the decree passed by the District Court of Bangalore (a foreign decree) in
the District Court of Coimbatore which was in British India. But the trial Judge refused their application u/s 13, Civil Procedure Code, holding that
it was passed without jurisdiction. On appeal to this Court it was contended by the learned counsel for the appellants Mr. B. Somayya, as he then
was, that the three defendants were a firm of partners carrying on business within the State of Mysore, that the partnership was subsisting on the
date of the action, that the suit related to certain dealings with that firm and that, therefore, the third defendant, though he was living at Coimbatore,
in British India, must be deemed to have submitted to the jurisdiction of the Bangalore Court.
After a discussion of the case law on the subject, the contention of the learned counsel for the appellants was negatived and Venkatasubba Rao, J.,
on behalf of the Bench observed that it was settled law that a British Indian Court will not recognize the judgment of a foreign Court passed in an
action in Personam against a British subject, not resident in that country at the date of the action, who had neither appeared in the suit nor
submitted to the jurisdiction of the foreign Court, and the mere fact that the British subject has entered into a partnership in the foreign country and
that the suit related to a transaction entered into in the course of the business of that partnership will not lead to the inference that he was agreed to
be bound by the decision of the foreign Court.
In this case, we have already observed that the respondent never lived in Singapore at any time, nor did he appear as a plaintiff or a defendant
in any action, that at the time of the aforesaid suit No. 598/66 he was living in India and that he never submitted to the jurisdiction of the Singapore
Court. We are, therefore, of the view, in the circumstances of this case, that the respondent never submitted to the jurisdiction of the foreign court
and, therefore, the decree passed by the foreign court against the respondent must be deemed to have been passed by a Court having no
jurisdiction.
The next point that arises for consideration is whether the ex parte decree passed by the Singapore High Court in consequence of default of
appearance by the respondent without trial can be deemed to be a judgment on merits. u/s 13(b) CPC a foreign judgment cannot be conclusive
and binding on the parties where such judgment has not been given on the merits of the case.
What happened in this case was this: The suit against the respondent was filed in the Singapore High Court on the affidavit filed by the plaintiff''s
Attorney for service of summons on the respondent in India where the respondent was residing. The High Court of Singapore issued notice on 2-
6-1966 to the respondent to be served in India in lieu of service in Singapore--vide Ex. A-10. It appears that notice was served on the respondent
on 4-7-1966. The respondent did not appear in the suit. On 29-7-1966, the Deputy Registrar of the High Court in Singapore issued a certificate
of non-appearance of the respondent in the suit. On the same day, on hearing the solicitor for the appellant, it was ordered that the appellant was
at liberty to sign final judgment against the respondent for the suit claim. On 30-7-1966, the final judgment was passed against the respondent
decreeing the suit prayed for. It is, therefore, clear from the records that no evidence was taken in proof of the claim by the appellant and the
decree was not passed on merits, but it was passed ex parte solely due to default of appearance. The learned Subordinate Judge found that Ex. A-
17 was not a judgment on merits, but it was passed on default of appearance of the respondent.
It is clear from Section 13(b) CPC that the foreign judgment will be conclusive only if there was an adjudication between the same parties on
the merits of the case. In other words, if the foreign judgment is not based upon the merits, whatever the procedure might be in the foreign country
in passing judgments, those judgments will not be conclusive. It is, therefore, open to the party against whom such foreign decrees are sought to be
executed u/s 44-A, CPC to resist the execution on the ground that such foreign decrees are not conclusive as they are not passed on merits.
A Full Bench of this Court in R.E. Mahomed Kassim and Co. Vs. Seeni Pakir Bin Ahmed and Others, , discussed the scope of Section 13(b),
CPC on a reference made to it by the referring Judges, to answer the question: ""Does a suit lie in this country on a foreign judgment given on
default of appearance of the defendant on the plaint allegations without any trial on evidence?"" In that case, the suit was brought on a foreign
judgment, namely the judgment of the Supreme Court of Penang. At the hearing of that suit, the defendants did not appear in court to contest it,
though the suit summonses had been properly served on the defendant in accordance with the rules obtaining in that court. According to the rules
of procedure of that court, where the defendant did not appear after proper service of summons, judgment would be given without trial and
without taking any evidence and solely on the ground of default of appearance of the defendant.
On the facts mentioned above Courts Trotter, C. J., gave his opinion as follows:
It was argued--and very likely correctly argued--that the English Law was different. The answer to that is we are bound by the statute on which
the decision in Keymer''s case was based. That statutory provision is Section 13(b) of the CPC under which an exception to the conclusiveness of
a foreign judgment in a British Indian Court is where it has not been given on the merits of the case. As I understand Mr. Alladi Krishnaswami
Ayyar''s argument, he says that it is not like the case of the defendant''s defense being struck out for not answering interrogatories or being out of
time or anything of the kind; for that may be held not to be a defense on the merits because ex hypothesi the position is the defendant was
precluded from going into the alleged merits which he had set up and he says it is quite different where the defendant does not appear at all
because that is a clear intimation by him that he admits the validity of the plaintiffs claims and that is just as good as if the plaintiff has actually
proved it by evidence. I think the decision of their Lordships of the Privy Council impliedly excludes any such distinction and I regret to say that I
cannot agree with the attempt made by two learned Judges of this Court to draw this distinction in A. Janno Hassan Sait Vs. S.N. Mahamad
Ohuthu, , and I think that the case must be regarded as no longer law.
Krishnan and Curgenven, JJ., the other two Judges constituting the Fill Bench agreed with the opinion expressed by Coutts Trotter, C. J.
The Law of Civil Procedure governing the institution of suits, service of summons upon the defendant, the liberty to the plaintiff to apply for a
decree against the defendant in case of the defendant''s default of appearance, in the Supreme Courts of Penang and Singapore, are all similar and
identical and are on the same pattern as the procedural laws in England, i.e., ""The Rules of the Supreme Court"". The Full Bench decision of this
Court referred to above in R.E. Mahomed Kassim and Co. Vs. Seeni Pakir Bin Ahmed and Others, which dealt with the enforceability of a
judgment obtained in the Supreme Court of Penang has been followed in almost all the High Courts. This decision was rendered about 45 years
back and had been uniformly followed by this Court. (Vide : the Bench decision of Jagadisan, J. and Kailasam, J., in M.K. Sivagaminatha Pillai
Vs. Nataraja Pillai and Others, . It is unnecessary to refer to all the cases and it is sufficient to refer to the latest Bench decision of this Court
reported in Mohammad Sheriff and Co. v. Abdul Jabbar, ILR (1966) 1 Mad 18 in which a Bench of this Court had to deal with a similar problem
arising out of a foreign judgment rendered by the Supreme Court of Singapore on default of appearance of the defendant. Veeraswami, J., (as he
then was), delivering the judgment on behalf of the Bench, after referring to the relevant decisions, has followed and applied the principle
enunciated by the Full Bench.
The learned Judge pointed out that the decree that followed as a matter of course solely on account of the default of the defendant''s appearance
could not be a judgment on merits, as to evidence was adduced and there was no judicial consideration of the tenability or justness of the claim. In
view of this recent pronouncement of the Bench of this Court which is binding upon us, the matter does not require further elaboration. It is true
that u/s 44-A sub-clause (3), the burden is upon the defendant who resists execution, to establish, to the satisfaction of the Court which is called
upon to execute the decree, that the foreign decree suffers under any one of the infirmities covered by any of the exceptions specified in clauses (a)
to (f) of Section 13, Civil Procedure Code. We may refer to the Bench decision of the Calcutta High Court in Sheikh Abdul Rahim alias S.A.
Rahim Vs. Mohamed Din and Another, . In the instant case, the respondent has discharged his burden by placing ample materials that the foreign
judgment cannot be executed because the High Court of Singapore was not a ""Court of competent jurisdiction"" within the meaning of Section
13(a) and that the defendant has not voluntarily submitted to the decision of the Tribunal and also that the decree of the High Court of Singapore
was not given on the merits of the case within the meaning of Sec. 13(a).
It will be seen that it will be open to the judgment-debtor-defendant to successfully resist execution u/s 44-A even if the decree given by the foreign
Court is vitiated by any one of the infirmities under Sections 13(a). The fact that out of the six exceptions there has been due compliance of some
of the conditions and there has been no violation of some of the exceptions will not avail. The decree can be executed u/s 44-A only if all the
conditions of Section 13(a) to (f) are satisfied. In other words, even if the Singapore High Court was a Court of competent jurisdiction either
because of the residence of the defendant in Singapore or because of his voluntarily submitting to the jurisdiction of the foreign Court, the decree
cannot be executed if, under Sec. 13(a) the decree had not been given on the merits of the case. The foreign decree can be executed u/s 44-A
only if all the conditions are concurrently satisfied. For all these reasons, we agree with the decision of the learned Subordinate Judge. In the result,
the appeal fails and the same is accordingly dismissed with costs.
Appeal dismissed.