Full Judgment
Kindersley, J.
1. The plaintiff having obtained a decree of the Civil Court of the Native State of Pudukottai against the defendant and another person, on an hypothecation executed in favour of his father, has brought this suit against the defendant, who now resides in British territory, to recover the balance remaining due under the decree.
2. The District Munsif upon the authority of Bhavanishanker Shevakram v. Pursadri Kalidas I.L.R. 6 Bom. 292 dismissed the suit on the ground that the suit would not lie upon the decree of a Civil Court of a Native State.
3. That decision was reversed by the District Judge who held that the suit would lie and accordingly remanded it for trial.
4. This second appeal rests on the ground that such a suit would not lie, and this is the sole question for determination. It does not appear that the Governor-General in Council has authorized, under Section 434 of the Code of Civil Procedure, the execution within British India of the decrees of the Civil Court of Pudukottai; but we find nothing in the Code to prohibit a suit being brought upon the decree of such a Court.
5. The District Munsif being bound to follow the law of this Court would have done well if he had followed the published decisions of this Court on the question, whether he could entertain a suit upon a foreign judgment.
6. Mathappa Chetti v. Chellappa Chetti I.L.R. 1 Mad. 196 was an appeal arising out of a suit which was brought upon a decree of the same Civil Court of Pudukottai in which the present suit was brought. That suit was dismissed, because the defendant was neither domiciled resident, nor possessing property in the State of Pudukottai, but the expediency of enforcing foreign judgments was there expressly recognized; and the whole of the elaborate argument of Mr. Justice HOLLOWAY in that case would have been beside the question, if in no case would a suit lie upon a decree of a Court of a Native State. In Kandasami Pillai v. Moidin Saib I.L.R. 2 Mad. 337 it was held that a suit would lie upon the judgment of a French Court at Pondicherry, and the same point was decided in the earlier case of Kandoth Mammi v. Neelancherayil Abdu Kalandan 8 M.H.C.R. 14. The learned Judges in the Bombay case draw a distinction between a judgment of a French Court and that of a Native State; but we are not aware of any principle of law upon which such a distinction could be maintained. According to the Code of Civil Procedure, Section 2, a foreign judgment is the judgment of the Court situate beyond the limits of British India, and not having authority in British India, nor established by the Governor-General in Council; and no distinction is made in any part of the Court between the judgment of a French Court and that of a Court of a Native State.
7. A suit upon a French (Pondicherry) judgment was upheld in the latter case of Nallatambi Mudaliar v. Punnusami Pillai I.L.R. 2 Mad. 400. There is also the unreported decision in Appeal 91 of 1881, in which it was held that a suit could not be maintained upon a Cochin judgment against which an appeal was pending before the Raja of Cochin.
8. These cases are sufficient to show that the Civil Courts of this Presidency do entertain suits brought upon foreign judgments, whether of the Courts of Native States, or of the French Courts having jurisdiction in the French territories in India. And the law being thus established in this Presidency, it is perhaps too late to consider whether it may sometimes be unsafe to enforce it. But it may be as well to point out that, in accordance with the practice in England, as laid down in the note to the Duchess of Kingston's case (2 Smith's Leading Cases, 760; 2 Taylor, on evidence, Section 1724), a foreign judgment may always be impeached on the ground of fraud or collusion, or for want of jurisdiction; or it may be shown that the defendant had no notice of the suit, or that the Judge was an interested party. It would be strange, as pointed out by the District Judge, if the law allowed a foreign judgment to be pleaded as a bar to a suit (Civil Procedure Code, Section 14), but not as a cause of action. And that the Legislature did not intend to exclude suits upon foreign judgments may be inferred from their having imposed a limitation of six years upon the action. Article 117 of the Limitation Act, Schedule 2, imposes this limitation upon a suit upon a foreign judgment as defined in the Code of Civil Procedure, which, as I have observed, recognizes no distinction between the Courts of Native States and other foreign Courts.
9. For these reasons, I would affirm the order of remand made by the District Court, and dismiss this appeal with costs.
Hutchins, J.
10. I agree to the judgment proposed by Mr. Justice KINDERSLEY, and there is only one point upon which I wish to add a few remarks:
11. It has been urged, as a ground for supposing that the Legislature did not intend suits to be brought on the judgments of Courts in Native States, that they have empowered the Governor-General in Council to declare that such judgments may be executed as if they had been passed by British Courts. A suit will not lie on a British Court's judgment, and it cannot be supposed, it is said, that the judgments of Foreign Courts should carry greater advantages. I should be inclined to draw exactly the opposite inference from the fact that the decrees of privileged Native Courts may be executed as if they had been passed by British Courts. The reason why a suit will not lie on the judgment of one of our own Courts is that Section 244 of the Code provides that all questions relating to the enforcement of a judgment shall be determined by order of the Court executing the decree and not by separate suit. It is a greater privilege to be able to execute a decree than to be able to enforce it by another suit; and Section 14 seems to show that there are many grounds upon which a foreign judgment may be impeached in a suit, which could not be pleaded in execution proceedings. It would be surprising if the Legislature had enabled the Governor-General in Council to give to the decrees of Native Courts all the force possessed by British decrees, before allowing them the more moderate efficacy possessed by other foreign judgments.