Singh v Singh (C.C. No. 92/1937) [1937] EACA 198 (1 January 1937)

### ORIGINAL CIVIL

#### BEFORE WEBB. J.

#### NAGINA SINGH s/o TARA SINGH. Plaintiff

v.

# TARLOCHAN SINGH s/o BOOR SINGH, Defendant

## C. C. No. 92/1937

Action on Foreign Judgment-Judgment not on the merits of the case—Civ. Pro. Code, sec. 9.

The plaintiff sued the defendant upon a judgment of the Second Class Court at Jullundur in a case in which the defendant with two others was sued upon a promissory note. The judgment was against the three defendants jointly and severally. One of the defendants in that case admitted the amount claimed but the record did not show whether the present defendant had been served or had entered an appearance in those proceedings.

Held (12-10-37).—That the merits of the case as regards the present defendant had never been gone into, nor had the matter in issue between him and the plaintiff been the subject of direct adjudication. (Keymer v. Reddi (40 Mad. 112) and Mahomed Kassim & Co. v. Seeni Pakir bin Ahmed (50 Mad. 261) followed: Mehr Singh v. Ishar Singh (14 Lah. 58) and Ishri Prasad v. Sri Ram (50 All. 270) distinguished.)

Mangat, for the plaintiff, referred to Mehr Singh v. Ishar Singh (14 Lah. 58) and Ishri Prasad v. Sri Ram (50 All. 270).

Figgis, K. C., for the defendant, the question of the liability of this defendant was never considered in the proceedings in India: for all that we know he may not have appeared. In *Mehr Singh v. Ishar* Singh (supra), the defendant had appeared and pleaded payment, and evidence was heard. In Ishri Prasad v. Sri Ram (supra), the Judge relied on the fact that the foreign judgment was based on a registered document. Keymer v. Reddi (40 Mad. 112) and Mohamed Kassim and Co. v. Seeni Pakir bin Ahmed (50 Mad. 261) show that a judgment by default is not a "judgment given on the merits of the case". See also Cole v. Harper (41 All. 521).

JUDGMENT.—This is an action upon a foreign judgment, namely a decree of the Second Class Court at Jullundur, in an action in which the present plaintiff, suing by his attorney, was plaintiff and the present defendant, with two others, was defendant. That was an action upon a promissory note, and it appears from the record that judgment was given ordering the defendants jointly and severally to<br>pay the plaintuff the sum of Rs. $1,522/2/3$ plus Rs. 196 costs, the judgment being expressed to be ex parte as against the present defend.int.

By section 9 of our Civil Procedure Ordinance a foreign judgment is "conclusive as to any matter thereby directly adjudicated upon between the same parties $\dots$ except $\dots$ (b) when it has not been given on the merits of the case", and I am clearly of opinion that the judgment sued upon here was not given upon the merits. The record does not show whether the present defendant was served, nor whether

he entered an appearance, and all that appeared in evidence was that. one of the defendants admitted the amount claimed and offered payment by certain instalments, which the plaintiff's attorney accepted. In these circumstances it is plain that the merits of the case as regards the present defendant, the nature of whose liability does not appear. were never gone into, and that the matter in controversy between him and the plaintiff was not the subject of direct adjudication. It seems to me that this case is governed by the decisions in Keymer v. Reddi (40 Mad. 112) and Mohamed Kassim and Co. v. Seeni Pakir bin Ahmed (50 Mad. 261): that a judgment in default of appearance is not, for the purposes of an action based on such judgment one given on the merits. In this connexion I may refer to the cases of The Delta (1 P. D. 393) and The Challenge (1904 p. 41 at p. 58). Mr. Mangat has relied on Mehr Singh v. Ishar Singh (14 Lah. 58) and Ishri Prasad v. Sri Ram (50 All. 270), but these cases seem to me to be distinguishable. In the first the defendant had appeared and pleaded payment: when the time came for him to prove his plea he absented himself from the Court and his advocate withdrew; the position, therefore, was the same as if he had in fact given evidence and had failed to prove the issue which it lay upon him to prove: the precise matter in controversy between him and the plaintiff had clearly been considered and adjudicated upon. In the second case the basis of the judgment appears to have been that the fact that the suit was brought upon a registered document plus the defendant's failure to appear furnished prima facie proof of the plaintiff's claim.

In my judgment, therefore, the judgment sued upon here was not a judgment upon the merits so far as regards this defendant. In saying this I am, of course, expressing no opinion as to whether he has any merits, but merely saying that the present form of action is not available to the plaintiff.

There is another ground upon which I think that the plaintiff's action fails. The only evidence before me is that in last December the plaintiff was informed by his son, his attorney in the action brought in India, that he had received nothing on foot of the judgment, but that is not inconsistent with the whole or part of the amount due having been paid before this action was instituted on 29-7-37.

The action fails and must be dismissed with costs.