John Wallis, Kt. Officiating C.J.
1. The learned Judges have differed on the question whether the District Munsif was right in refusing to execute the decree of the Cochin Court, as to which a notification has been issued pursuant to Section 44 C.P.C. on the ground that it was passed without jurisdiction. It was not disputed that in the circumstances which were similar to those in the Faridkote case the Cochin Court must be considered to have had no jurisdiction, but it was contended that a British Court was bound under the terms of the section to execute it, as-if it has been passed by a Court of British India, and that it would not now be open to a Court in British India to refuse to execute the decree of another Court in British India for want of jurisdiction. I do not think it necessary to consider the second proposition, because I agree generally with the Judgment of Sundara Aiyar J. that Section 44 has not the effect contended for, and that a British Court ought not to execute a decree of the Cochin Court passed without jurisdiction. That judgment is a judgment of a Foreign Court within the meaning of Section 13 C.P.C. and it would in my opinion require much plainer words than are to be found in Section 44 to show that it was the intention of the legislature that decrees of foreign Courts to which Section 44 applies should be enforced in British Courts without regard to the provisions of that section. Full effect may be given to Section 44 by holding that it was merely intended to alter the procedure by which such a foreign judgment can have effect given to it in British India. This was decided by Farran J. more than 20 years ago in Haji Musa Haji Ahmed v. Parmanand Nursey I.L.R. (1890) B. 216 which apparently has not been questioned in our courts until the present case, and was known to the legislature when the provisions of the last Code were revised and the present Code was enacted. The suggestion that the legislature intended all decrees of Courts in the position of the Cochin Court to be executed in British India without any question seems to me altogether inadmissible having regard to the way in which the question has been dealt with as regards the superior Courts in the United Kingdom. The Judgments of a Superior Court can only be executed in the Superior Court of another part of the United Kingdom under the Judgments Extension Act, 1868, when they are judgments for ' any debt, damage or costs '. Such judgments are, it is expressly provided, to have the same force and effect after registration in the executing Court as if they were judgments of that court, words which are not to be found in Section 44 C.P.C. Further, Section 8 makes a significant exception in the case of decrees of the Court of Session 'pronounced in absence in an action proceeding on an arrestment used to be found jurisdiction in Scotland '. In countries such as Scotland whose jurisprudence is based on the Roman law, jurisdiction against a foreigner may be founded on seizure of his property within the territorial limits, but English law does not recognise such a procedure except in the case of the custom of foreign attachment in the city of London (as to which see Wadsworth v. The Queen of Spain 17 Q.B.D. 171) and the legislature has therefore thought proper to except Scotch decrees founded on such an arrestment and obtained in absentia from the operation of the Act. The Inferior Courts Jurisdiction Act 1882 is also confined to judgments for any debt, damages and costs and only allows execution of judgments obtained in one part of the United Kingdom against defendants domiciled in another part. Subject to the restrictions as to cause of action and service contained in Section 10 of the Act it cannot I think have been the intention of the Indian legislature in Section 44 to ignore all these restrictions.
2. The next question is whether the defendant submitted to the jurisdiction of the Cochin Court. The Lower Appellate Court, returned a finding that he did not, and the respondent filed a memorandum of objections to the finding. Sundara Aiyar, J. observes that no attempt was made to impeach the finding at the hearing, but the learned vakil who appeared on both occasions assured us that this was a mistake and has addressed us an elaborate argument on the point. The law on this question cannot perhaps be considered to be fully settled. The decision in Parry & Co. v. Appasami I.L.R. (1880) M. 407 that it is enough merely to object to jurisdiction is probably no longer law. See Boisserie v. Brockner I.L.R. (1889) 85 and Gniard v. De Glermont and Donner 30. T L.R. 511 There is however the high authority of. Lord Esher, M.R. and Bowen, L.J. in Voinet v. Barrett (1885) 55 L.J. Q.B. 39 that submission is not voluntary in the language of Bowen L.J. in a case where goods belonging to the defendant have been seized by a foreign tribunal so that he only appears to get them released. In the recent case of Gniard v. De Glermont and Donne 30. I.L.R. 511 where judgment has been given against the defendants in default of appearance and a (sic) sum about 4 in a Paris Bank had been attached in execution, the defendants sought to set aside the default decree without any reference to the seizure of this comparatively trifling sum, and Lawrence J. held that it was not a submission for the purpose of saving property and held the judgment of the French Court was binding. Whether the submission was for the purpose of saving property or voluntary, is apparently a question of fact in each case. In the present case it is found that the plaintiff in May 1908 obtained an interim injunction restraining the defendant from disposing of the timber belonging to him in the Cochir state, and that in the following July the defendant filed a counter petition for the removal of the injunction and a written statement denying the jurisdiction and raising a defence on the merits on the same day. On the above facts I think there was evidence to support the finding and am not prepared to interfere with it in. second appeal. This appeal is allowed, the decree of the Lower Appellate Court is set aside and the decree of the District Munsiff restored with costs throughout.
Ayling, J.
3. I agree.
Seshagiri Aiyar, J.
4. I agree. In order !to decide the questions of law arising in this appeal, it is necessary to set out the facts which have been either found or proved. A suit was instituted in the District Court of the Cochin State against the appellant for damages for breach of contract. On the institution of the suit and before defendant appeared, an application was made for an injunction restraining the defendant from alienating certain logs of timber owned by the appellant and which were within the jurisdiction of the District Court. The order was issued and the notice of it was served on the appellant. It is not clear from the records whether this notice and the summons in the suit were served at the same time or on different dates. I find from the printed records that the appellant applied to have this injunction order vacated. There is nothing to show whether this application was prior to the filing of the written statement or after; unfortunately, the written statement has not been filed in the case. We have to gather its terms from the judgment of the Cochin Court. The summary of it in paragraph 2 of that judgment shows that the appellant took exception to the jurisdiction of the Court on the ground that he was permanently residing in British India, and also pleaded that he was not liable to the suit claim. The District Judge of Cochin overruled both the contentions and passed a decree against the appellant. This decree was sent to the District Muhsif's Court of Palghat (in British India) for execution under Section 44 of the Code of Civil Procedure. Appellant contended before that Court that the decree of the District Court of Cochin was a nullity as it was passed without jurisdiction. The District Munsif upheld that plea. On appeal, the Subordinate Judge reversed this decision holding that it was not competent to the District Munsif to consider the question of jurisdiction. A Civil miscellaneous appeal was preferred against this order and the two learned Judges who heard it have differed.
5. The main contention of the appellant is that the decree of the District Court of Cochin does not by transfer to a British Court become a decree of the latter Court for all purposes. Mr. Pandalai contends that the words ' as if they had been passed by the Courts in British India' relate only to the mode of execution and have not the effect of giving foreign judgments all the incidents of a judgment of a British Court. I agree with this contention. In my opinion Section 44 of C.P.C. is subject to the same limitations as are contained in Section 13 regarding foreign judgments. Under this latter section, the recognition of foreign judgments is not absolute but is subject to certain reservations. Section 44 introduces an exception in favour of certain Native States. The Governor-General in Council is empowered by that section, to give the privilege of execution to the judgments obtained in these states, without going through the process of instituting suits on them as is required in the case of other foreign judgments. The privilege is not an illusory one as Mr. Anantha-krishna Aiyar suggests. The favoured decree holder need not pay fresh Court fees for a suit. He need not go through the process of establishing his claim. provided the conditions mentioned in Section 13 are complied with; and be can, on production of the decree take out execution. These are substantial advantages which the legislature has secured to the decrees of states Which are included in the notification issued under Section 44 of the Code. I do not think that the legislature intended to obliterate the distinction between judgments of Native States and those of British India by the operation of Section 44. I think there is force in the contention of the learned Counsel for the appellant that the language of Section 44 does not prima facie import equality between the two classes of judgments. As Lord Halsbury points out in Cox v. Hakes (1890) L.R. 15 A.C. 506 ' it is impossible to contend that the mere fact of a general word being used in a statute precludes all enquiry into the object of,the statute or the mischief which it was intended to remedy ', Lord Herschell also says 'that for the purpose of construing any enactment it is right to look out only at the provision immediately under construction, but at any others found in connection with it, which may throw light upon it, and afford an indication that general words employed in it were not intended to be applied without some limitation', This principle has been accepted and acted upon in Darlington : Wagor Company v. Harding and Fronville Pier and Steamboat Company (1891) 1. Q.B. 245 and Ex parte Blain : In re Sawyers (1879) 12 Ch. D. 522. In the present case we cannot impute to the legislature an intention to do away with the distinction between judgments of Native States and those obtained in British India thereby taking them out of the category of foreign judgments altogether. I have already indicated that substantial advantages would be secured even on the footing that Section 44 is controlled by Section 13.
6. It is not necessary for emphasising this position to hold that suits on the judgments of favoured Native States are not permissible under the Code. There have been conflicting views on this question. I am inclinded to think that both the remedies are open to persons who have obtained judgments in these states : However as this question has not been fully argued, I prefer not to express any decided opinion on it. Assuming that only execution is contemplated and not suit, still a judgment from the Native States included in the notification already referred to, must not be obnoxious to the qualifications contained in Section 13.
7. Another question which might be more decisive on the matter we have to decide was not also fully argued, and although I hardly feel any doubt upon it, I shall not base my decision on it. Mr. Ananthakrishna Aiyar contended that in regard to' decrees obtained within British India, the executing Court will have no power-to go into the question whether the Court which ' passed the decree had jurisdiction to decide it. He relied on the change in the language between Section 225 of the old Code and Order XXI, Rule 7 of the new Code and quoted the recent decision of the Bombay High Court in Harigovind v. Narsingrao Konherrao I.L.R. (1913) B. 194 in support of his contention. I am not satisfied that the change is in favour of depriving the executing Court of the power to enquire into the jurisdiction of the Court which passed the decree. The words omitted suggest that the Court is not suo moto to require proof of jurisdiction. In my opinion the omission does not lead to the conclusion that it is not open to the contesting party to challenge the jurisdiction of the decree-court. I agree with Mr. Justice Sundara Aiyar that this conclusion is not warranted by the change in the language. The learned Judges of Bombay in the recent case do not refer to Bhagwantappa v. Vishwanath I.L.R. (1908) B. 878 If jurisdiction can be questioned regarding judgments of British Courts, it would a fortiori follow that judgments of Native States are not exempt from it. However as I said before, I shall not base my judgment upon this aspect of the case.
8. I feel no hesitation in holding that the words 'as if they had been passed by the Courts of British India ' have not the effect of giving foreign judgments the character of the judgments of our courts. In Ramachandra v. Pitchaikanni I.L.R. (1883) M. 434 it was held that similar words, in the Abkari Act had not the effect of giving arrears due under it the characteristics of arrears of Revenue under Act II of 1864. This was followed in Kadir Moideen Marakkayar v. Muthukrishna Aiyar I.L.R. (1902) M. 280 regarding Income tax where the language used is strikingly similar to the words in Section 44. The learned Judges held that the words 'as if it were an arrear of Revenue, ' only related to the process of enforcing the Income tax dues. In 15 B. 216, the words in question were understood as relating only to the mode of execution. These decisions are directly in point. Mr. Anantakrishna Aiyar drew our attention to the language employed in Sections 1 and 2 of 31 & 32 Vic. Chap. 54 (The Judgment Extension Act of 1868) and contended that the words in Section 44 are similar to those words and should be given the same meaning as in that Act. To my mind the language employed appears to be totally different. Section 1 speaks of the registry of Scotch Judgments in the English Courts and proceeds to say that they 'shall from the date of such Registration be of the same force and effect (the italics are mine), and' all proceedings shall and may be had and taken on such certificate, as if the judgment of which it is a certificate had been judgment originally obtained or entered up on the date of such Registration as aforesaid in the court in which it is registered.' These words are very different from the language employed in Section 44 of our Code.
9. On the other hand, the language of Section 5 of 45 and 46 Vic. Chapter 31 bears a close resemblance to the words used in Section 44. The Act is known as the Inferior Courts Judgments Extension Act. Under this Act 'process of execution may issue thereon out of the court in which the same shall have been so registered against any goods or chattels of the person against whom judgment shall have been obtained, which are within the jurisdiction of such last mentioned court, in the' same or the like manner as it the judgment to be executed had been obtained in the court in which such certificate shall be so registered as aforesaid'. Then follows Section 10 which exempts from the operation of Section 5 all judgments obtained against persons not domiciled within the juris-, diction of the court which passed it and against whom the whole cause of action has not arisen within its limits. This Act gives-the clue to the meaning to be attributed to Section 44 of the Code of Civil Procedure and the limitation of Section 10 of that Act must govern our Code also.
10. Mr. Ananthakrishna Aiyar argued a further question which has not been considered by the learned Judges who heard the Civil Miscellaneous Appeal The learned Vakil contends that as the appellant voluntarily submitted to the jurisdiction of the Cochin Court, he is estopped from questioning it in execution; the facts necessary for deciding this point have, not been clearly elicited. The Subordinate judge on remand found that there was no voluntary submission and Mr. Justice Sundara Aiyar says 'the learned vakil for the respondent properly abstained from attempting to impeach it'. Mr. Justice Sadasiva Aiyar does not refer to the question at all.
11. I have stated in the opening of my judgment the facts in so far as they are gatherable from the records. The question for consideration on these materials is, did the appellant voluntarily submit himself to the jurisdiction of the Cochin Court. It has been held in Madras that where a defendant demurs to the jurisdiction of a court and at the same time submits an alternative plea for a Judgment on the merits in his favour, he should not be deemed to have voluntarily submitted to jurisdiction. Parry & Co. v. Appasami Pillai. I.L.R. (1880) M. 107 This is also implied by the decision in Sivaraman Chetti v. Iburan Sahib I.L.R. (1893) M. 327. In a very recent case it was held in Bombay Hurchhand v. Golapchand : AIR1914Bom111(2) that if in addition to challenging jurisdiction, the defendant takes the chance of a judgment being given in his favour, the submission is voluntary. The basis for this pronouncement is the decision of Cave J. in Boissiere v. Brokner I.L.R. (1885) 6 The learned Judge says ''where, however, he appears voluntarily apd submits to the jurisdiction of the foreign court there arises a legal obligation to obey the judgment. The question I have to decide in this case is what is meant by the word ' Voluntarily.' For the plaintiffs it is contended that every appearance is voluntary which is not made under duress. For the defendants it is submitted that as the foundation for the legal obligation is consent an appearance under protest affords no indication of consent to the jurisdiction, or, in other words, is not voluntary. Now, no one supposes that when a man appears voluntarily as a defendant in an action before a foreign court he does so because he likes it, he appears because on the whole he deems it his interest to submit to have the dispute decided by the foreign tribunal and to take his chance of winning the suit : and if he enters into the litigation from those motives, intending to take advantage of the judgment if he wins, there is obviously a moral obligation on him to pay if he loses, and this moral obligation is recognised by our law as sufficient under the circumstances to constitute a legal obligation. If this is the true source of the obligation why should it not extend to the case of a man who appears without duress, and therefore voluntarily in one sense; but who accompanies his appearance with a protest and appears, not because he is compelled to do so but because he judges it to be for his interest to do so. That is, he intends to take all the advantage he hopes to gain by appearing and by a protest to relieve himself from the disadvantage. He wishes to have the benefit without the burden,' and after discussing some of the authorities bearing on the question comes to the conclusion that the appearance of the defendant was voluntary notwithstanding the protest. Dicey (Conflict of Laws) accepts this as good Law. See case (2) in page 370; See also Foote on Private International Jurisprudence pages 552 and 553. I am not sure from the remarks of Westlake in his book on 'Private International Law' that he is satisfied with the decision of Cave J (See Remarks at page 378). If the decision of this appeal however depended entirely upon this question, I would hesitate to follow the decision in 2 M 407 although it may not be irrelevant to point out here that the conditions of existence in this country may not justify the application of the principle enunciated by Cave J. There are circumstances in this case which render it unnecessary to decide which of the two decisions (2 Madras series or 6 Times Law Reports) should be followed. There was an order against the appellant prohibiting him from alienating his properties which were within the jurisdiction of the Cochin Court. It was to protect himself from this order that he made his appearance, although he filed a statement on the merits as well-This amounts according to accepted authorities to appearing under duress. Lord Esher referring to the dictum of Blackburn J. in an earlier judgment says in Vionet v. Barret (1885) 55 L.J.Q.B. 39. 'This sentence clearly means that an appearance, which would otherwise be voluntary is not treated as voluntary if it is only made in order to save property which is in the hands of a foreign tribunal; that is to say if the appearance is made in a case in which property of the party so appearing is already in the foreign country and has been seized by the foreign tribunal before appearance has been entered, so that the party appears in order to save the property so seized, and in order to get it out of the hands of the foreign tribunal. Such an appearance is not treated as voluntary, because it is made in order to save property which is arleady (sic) jeopardy in the hands of a foreign tribunal; but if a defendant enters an appearance before any property has been seized, such an appearance may be a voluntary appearance. Bowen L.J. is equally clear on the question. 'It is true that a defendant does not do so in a case in which goods belonging to him have already been seized by a foreign tribunal, so that he only appears in order to get them released; but if his appearance is not a compulsory appearence, but is voluntary, then the matter stands in a different position'. Cave J. in the case already referred to makes a reservation in favour of the defendant appearing under duress. Westlake says that this position is unassailable. He pleads for an extension of the doctrine to all cases where the defendant appears to protect his property in a foreign court, although there is no order for attachment or seizure of the same (See page 377). To the same effect are the opinions of other writers. Foote on Private International Jurisprudence page 552; Piggott on Foreign Judgments Vol. 1 page 349; Dicey on the Conflict of Laws (case 3 in' page 372). The facts elicited in this case show that--it was in order to protect his property that the appellant appeared before the court, and the fact that he subsequently invoked the opinion of the court on the merits should not preclude him from pleading that the Cochin Court had no jurisdiction over him.
12. I do not consider it necessary to deal with the question which has been considered by both the learned Judges at some length whether the use of the word may in Section 44 is not equivalent to conferring powers to enquire into the competency of the judgment passed by a foreign Court. If the British Courts have a discretion what is to be the limit of its exercise? Are these courts to enquire into the merits to ascertain whether the judgment was a just one If Section 44 is not controlled by Section 13, I do not think the use of the word may will give the British Courts power to deal with the jurisdiction of the Courts of Native States; nor am I prepared to hold that the use of the word may instead of shall was intended to subject Section 44 to the limitation contained in Section 13.
13. My conclusion is that the Courts in British India are competent to decide before issuing execution whether the Courts of Native State had jurisdiction to pass the judgment which is sought to be enforced by them. I agree with the order proposed by the learned Chief Justice.