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gaming debt, was disregarded as being the sentence of a * whim-
sical anod fantastical court,' resembling the Lawless Court held
at Rochford in Essex. And in Gage v. Bulkley^^^ the judg-
ment of a French Commissary Court for the same cause being
pleaded in bar, the Court refused to recognize it, because it was
the sentence, not of a judicial tribunal, but of a Court of a
purely political nature to determine disputes that might arise
in relation to French actions. In Taylor v. Fordy^^ Black-
burn, J., said: ** It may, of course, be said that the Interna-
tional law on any subject can only be that law which is
common to the laws of all nations, and that whatever is in
excess of that is a violation of International law : and that,
therefore, in the case of assumed jurisdiction, only those in-
stances of it can be called part of the law of nations which are
recognized and adopted by all States. This is sound : but we
venture to think, more especially as this law in every State is
liable to frequent alteration (as the recent changes in our
own rules testify) that the larger doctrine which we have
advocated is also sound and must ultimately prevail, that, not
the common instances in which the principle is adopted, but
the principle itself now forms part of International law ; and
that till a consensus of opinion is arrived at, the instances in
which it is so adopted must in every case be left to the dis-
cretion of the several States.''

Practically, the question has to be left to the discretion
cf the Courts of the country in which the judgment is brought
forward to receive effecty and the Courts of that country not



It Herm. Comm. ffTO. I 1*8 Atk. 814.

i4 1W.BLt84, «6a. I i<»Biig.W.R, 47.



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S. 216.] JUBIBDICTION MUST HATE EXIBTED ACCORDING TO INTERNATIONAL LAW. 565

seldom adopt their own law as a measure of the validity of the
jurisdiction exercised by the foreign court. A very notable
illustration of this is furnished by the German law, where the
Civil Procedure Code has enacted that a foreign judgment to
receive an exequatur for its execution there should have been
rendered by a tribunal competent according to the German
law. The German courts, as observed by M. Constant,
require that *' le ju^e aUemand doit examiner la competence
du tribunal Hran^er^ non seulement au point de vue de la
question de saooir si le juge Hranger a fait des principes
reconnus^ en matiere de competence, une application saine
et confer mt aux regies posies par le droit allemand ; mais
encore a Veffet d'apprecier si lesfaitSy h raison desquels il a
ite fait application de ces principes^ etaient de nature a
justifier Vattribution de la competence aujuge etranger et si
ces f aits sont reellement prouvis.*' ^^

Thus Plowden, J., in his judgment in the case of Bik^
raina Singh v. Bir Singh^^^ said : •* The principle already set
out (Godard v. Gray) seems to require that the expression
should include competency of jurisdiction in the foreign court
according to its own laws. Otherwise it would be di£Bcult to
afBrm that the judgment created a legal obligation in the
foreign State, or to deny that its performance might be excused
elsewhere. But if this be so, is the expression to be limited to
competency of the foreign court according to its own laws ?
It is clear that the meaning of the expression under notice is
to be determined by the laws of this country, and there is no
maxim of International jurisprudence which requires that the
question of competency of the court pronouncing a judgment
should be determined in foreign court called upon to enforce
the judgment, solely with reference to the rules of jurisdiction
prescribed by its own laws for the original court. * Civilized
nations diflfer widely as to the rules of jurisdiction. Naturally,
therefore, when called upon to enforce foreign judgments
each tries by its own maxims the competence of the courts
which pronounced them. To do otherwise would be to license
every foreign state to draw to itself all causes which it pleased ;
nor can any Judge be required to enforce a duty not imposed
upon the defendant by an authority held lawful in his own
tribunal/*^"



IV Ckm. Eze. Jng. Etr. 88. I i» Wast. Frir. Inter. 370.

!• 1868 P. a. Mo. 101, p, 607. I



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566 JURISDICTIONiMUST HATE EXISTED ACOOBDINO TO INTERNATIONAL LAW. [S. 217,

217. A notable instance of an excess of jurisdiction.
Jurisdiction of French ^^hicli has often received consideration
courts over foreigners ^» ilingland as well as in this country,
in suits on contracts occurs in the French Legislation. Art.
made outside France 14 of the Code Napolean enacts: **Zr'
is not recognized. Stranger, mSme non residant en France

pourra etre traduit devant les tribunaux de France^ pour
les obligations par lui contraotees en pays dtr anger envers
des Francais.'^ D\\ Westlnke in his Work on Private Interna-
tional Law says : ^* Where the legislature of any country estab-
lishes H Jorum actoris, that is, a jurisdiction founded on circum-
stances neither personal to the defendant nor connected with
the obligation, but personal to the plaintiff as is done by Art.
14 of the Code Napolean, this will not be considered a sujBS-
cient ground of competence for enforcing such a judgment in
England.^^ In Schibsby v. Westenholz^^^ the contract sued
upon was not made in France, and the defendants had been
served with the citation through the French Consulate in
London, but had not entered any appearance. The Court of
Queen^s Bench held that, since the defendants had never owed
any allegiance to France, or made a contract in that country,
or taken any part in the proceedings, the foreign judgment
should not be enforced against them. Blackburn, J., in his
judgment in the case, said : ** The question we have now to
answer is, can the empire of France pass a law to bind the
whole world ? We admit, with perfect candour, that in the
supposed case of a judgment, obtained in this country against a
foreigner, being sued on in a court of the United States, the
question for the court of the United States would be, can the
island of Great Britain pass a law to bind the whole world ? We
think in each case the answer should be, No/' These observations
were quoted with approval and acted upon in Hinde v. Ponnatk
Brayarif^^ by Innesand Muttusami Ayyar, J.J., who said that,
** the cause of action in the suit in the Mahe Court did not
arise at Mahe, the defendant in the French Court did not
reside at Mah6, and there appears no circumstance in the case
which in a proper view of International law could give the
French Court jurisdiction or impose upon the defendant a
duty to obey the judgment." Similarly, Sir Charles Turner,
C. J., and MLuttusaroi Ayyar, J., in Nallatambi Mudaliar v.
Ponnusami^^ said : " It will be noticed that it is an indis-

»• Yitk p. p. 817. I »« I. L. R., IV Mad. 8».

11 L. a.6. Q.B. 166. I at L L.R. n M«4. 408.



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8* 218.] PLAINTIFF ESTOPPED FROM PLEA OP WANT OP JURISDICTION. 567

pensable condition that the foreign court should have jurisdic-
tion over the defendant. It has jurisdiction over the defendant
if he was, at the time suit was commenced, a subject of
the foreign country, or if he was at that time domiciled or tem-
porarily resident therein ; and in respect of an obligation con-
tracted in a foreign country, it would possibly be held that the
Courts of that country have jurisdiction over a foreigner, though
he may not be domiciled and may have left the country
before suit brought ; and in respect of the transactions of a
joint stock company formed for the purpose of carrying on
business in a foreign country, the courts of that ountry
may, under certain circumstantes, have jurisdiction over a
member of the Company, though he may never have resided

therein nor owe allegiance thereto The 14th

article of the Code Civil permits a French citizen to cite
before a French Court a foreigner, even though, not resi-
dent in French territory, to enforce a contract whether made
in French or in foreign territory. The Municipal law of
France has force only within its own territory. A judgment
passed under that law can be enforced in British Courts only
in virtue of principles of International law which have extra-
territorial operation. British Courts then are not bound to
enforce in all cases judgments passed by French tribunals
against foreigners on contracts made out of French territory."
In Appasami Poullev. Parry ^^"^ Mr. Justice Muttusami Ayyar
said, ** the test of jurisdiction is not the law of France which is
only territorial in its operation, but some recognized principle
of International law which has extra-territorial operation."

218. It is clear, upon principle, that if a person, as plain-
Estoppel from plea of ^'^^ ''selected the tribunal of a foreign
want of jurisdiction country as the one in which he would
against foreign judg- sue, he could not afterwards say that the
"^®°^* judgment of that tribunal was not binding

upon him.'"^^ In Novdli \\ Eossi,^^ it was held that ajudgment
of a French court against an Englishman who brought a suit
there would be binding on him in an English court, even though
given on a misinterpretation of the English law upon the subject.
In Nallatambi Mudaliar v. Ponnusami,^^ Sir Charles Turner,
C. J., and Muttusami Ayyar, J., said: — ** In suing as a
plaintiflF in the court of a country to which he owes no
allegiance, he has voluntarily submitted to its jurisdiction,

»* V. I. J. 180. I 2« 2 B. and Ad. 767.

2» Schibsby ». Woiteaholz, L. B. 6 Q. B. 161. | »' I. L. B., n Mad. 404.



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568 DEPENDANT ESTOPPED PROM PLEA OF WANT OP JXTBIBDICTItN, [8. 218.

and he cannot afterwards object to the validity of the
judgment of the court on the ground that it had no juris-
diction over him/' There is a difference, however, in this
respect, between the position of the plaintiff and that of the
defendant. The latter ** is summoned to the foreign court,
and therefore to a certain extent his appearance there is under
compulsion, except that he has, where judgment has been
given for the plaintiff*, rendered himself liable to the suit by his
own act ; but the plaintifi^s appearance there is so far volun-
tary, that being presumbly at arms* length from his opponent
and his only remedy being at law, he must perforce choose some
tribunal ; and although the defendant be non-resident and an
alien, he has adopted one in his own country, its laws giving
that court jurisdiction over his opponent. This difference,
however slight it may on analysis appear, has always been
maintained ; and the consequence is that whereas the most com-
mon form of defence is absence of jurisdiction in the foreign
court, yet the plaintiff may not raise this question of jurisdic-
tion by way of reply, by reason of his so-called voluntary
submission to the tribunal/^^® Voluntary appearance by the
defendant also before a foreign court, as before a domestic
court, is often said to confer jurisdiction on that court, which
it does not possess otherwise, and such appearance will cer-
tainly estop him from pleading defect of- personal jurisdiction,
and in British India it will have that effect in spite of the last
clause of Explanation VI of Sec- 13.

Thus if a party choose to appear and contest the merits, and
thus submit to the jurisdiction of the court, waiving his personal
immunity, the judgment will be as conclusive as though he
were a resident or citizen of the state in which the judgment
is obtained.^ In Kandoth Mammi v. Neelancherayily^^ the
defendant had appeared in the court at Mahe and defended the
suit without making any objection to the jurisdiction. Sir
William Morgan, 0. J., and Holloway, J., said that, ** Justice
requires us to hold that a man who has thus triken the chances
of a judgment in his favor, which would, if obtained, have
relieved him from all liability, is equitably estopped from after-
wards setting up the objection.'* And that decision was
approved of and followed in Nallatambi Mudnliar v. Ponnu-
$ami^^ on the ground that «' by appearing in the foreign court
and taking no exception to its jurisdiction, the defendant for

»• Piir For. Jud. 40. | »<> VHI M. H. C. R. IC.

29 Hwbin V. Chiles, 20 Mo. 814. >i I. L. R. U Mad. 400.

Bogera v. Rogers, 15 B. Hon. 304. |



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Sk 218,] DEFENDANT ESTOPPED PROM PLEA OP WANT OP JITBISDICTION. 569

the time, put8 himself under the jurisdiction of the court.*'
Sir Charles Turner, OJ., and Muttusami Ayyar, J., observed
in that case that **he has led the plaintiff to believe that the
proceedings are allowed by him to be effectual, and encouraged
the plaintiff^ to proceed in them instead of withdrawing from
them and instituting proceedings elaewhere. It is, therefore,
in our opinion, a legitimate application of the principles re-
cognized in our courts to hold that a defendant who has, under
the circumstances, submitted to the jurisdiction, cannot after-
wards question it." The same has been recently held in Fazal
Shau V. Gafar Khnn^^^ in which Sir Arthur Collins, C. J.,
and Shephard, J., observed that " the defendant did not protest
that the court had no juriAdiction, but appeared by an aorent
and defended the suit. Having done so, and having taken the
chance of a judgment in his favor, he cannot now, when an
action is brought against him on the judgment, take exception
to the jurisdiction."

The same view is taken by the English courts. Thus in
De Go$$€ Brfssac v. Rathbone^^^ it was contended that the
defendants had appeared in the foreign court, merely for the
protectitm of the property which they had in France and which
would have been liable to seizure if they had not appeared and
a judgment were passed against them for default, but the
arifument was overruled ; and it was held that " where the
defendant voluntarily appears and takes the chance of a judg-
ment in his favor, he is bound." Lord Blackburn also ex-
pressed an opinion against similar contention in Simpson v.
Fogo ;" and in Dufles v. Burlingham.^^ The same was held in
Votnet v.Barrett.^^ Mr. Pigott also f>bserves that the distinction
isnotonly unsubstantial but unsound.^^ Speaking of the practice
of the American courts, Mr. Freeman says.'^ " If the defend-
ant, though a non-resident, not subject to the jurisdiction of a
foreign court, appears in the action, he cannot avoid the effect
of the judgment entered therein against him by showing that
he appeared merely to protect his property from seizure upon a
judgment by default.'*^

(g) The decision in Appastnil Poulle v. Parry^^ is not against this \icw, as though
the defendants defended the suit and appealed against the decision in it, yet they first of
all protested against the jurisdiction of the court, ami the Madras High Court said : " It
iicould have been idle to repeat an objection which they were aware the French courts
would not entertain, but there is nothing to show that they abandoned their right to insist
on it should the necessity for doing so arise elsewhere."

»' I. L. R. XV MadTsa] i *^ 55 l. J . Q. B. 38. ^

»• H. A N. 301. I »*» Pig Pot. Jud. 103.

»» 32 L. J. Cli. W^. Is* FV. Jud. 1017.

»» 34 L. T. C8i. I M V. 1, J. lai.

72



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570 FOREIGN JUDGMENTS RECOGNIZED IN INDIA. [a 21

219, Foreign judgments have, on the analogy of the

practice of the English Courts, long

Foreign ludgraents re- received a recognition in the courts in

cognizea and enforced B^j^jgh l„dia, even as the basis of claims,

m British India. jr^i r»ji r -

and often been entorced by means ot suits

brought on them and decreed. Even prior to the enactment
of the Civil Procedure Code of 1859, it was laid down in
Macpherson's Civil Procedure Code, that, ** Foreign jndgmeors
must, in order to be received, finally determine the points in
dispute, and must be adjudications upon the actual merits; and
they are open to be impeached upon the ground that the
foreiofn court had no jurisdiction, whether over the cause, over
the subject-matter or over the parties, or that the defendant
never was summoned to answer, or had no opportuni y of
making his defence, or that the judgment was fraudnlemly
obtainal/'^ And this was quoted with approval by Bayiey,
J., in Sreehuree Bukshee^"^ m which a claim was broua:ht on a
judgment of a French Court. In Boloram v. Kaweenee
Dossee^^ also, a suit was brought on a judgment of a French
Court in the Civil Court of Hoogly, and on appeal, the Calcutta
High Court said, *• If that court finds that there is no reason
to question the decision upon the ground of fraud or want of
jurisdiction, or that it was unduly obtained, the court should
accept the foreign judgment, as conclusive between the parties,
and should not enquire into the merits of the case, or the
propriety of the decision.'* Such suits have in fact been
quite frequent in the courts since their first establishment.
The law on the point was much discussed in Bikrama
Singh v. Bir Singh!^'^ in which Plowden, J., said : "It
has long been established in England as well as America
and other countries, that an action may be founded upon a
foreign judgment; and suits of this nature have also been
recognized in India. They were recognized some 60 years ago
in the courts of the mofussil by the Sadar Diwani Adawlat of
Bengal, which regarded suits upon decrees of the Supreme
Court as suits upon foreign judgments.*^ In Morley's Digest,
Volume I, page 604, are two instances of suits on judgments in
the Supreme Court in 1776 and 1778, and the note indicates
that such actions were not unfrequent in 1850.** The Sadar
Diwani Adalat, Bengal, in Construction No. ]133, and in the

»<i p. ?B9. (Ea. 2nd). I *» 8. D. A. Ill Sel. Rop. 111.

40 XV W.R. 600. I S D. A. VI Sel. Hep. 187.

41 IV W. R. 108. I B. D. A. VII Sol. Rop. 547, 670,571.
« 1888 P. R. No. 191. I 4* Title. Practice, No. W.



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a 219.1



FOREIGN JUDGMENTS ENFORCED IN INDIA.



571



ease noted at pajsfe 389 of Morley's Digest, Volume I,** regarded
foreiy:n juilgments as enforceable by action. The like view
has been taken by the Hiirh Court of Calcutta. Suits brought
upon judgments of the French Court at Chandernngore have
been treated by the High Courts as maintainable,^ and the
English Law as to such suits applied. In XV W. R. 500, it
appears not to have been doubted that if the Recorder had
jurisdiction over the defendant, an action brought on a judg-
ment of the Court of Queen's Bench would lie. An instance
of such a suit in the mofussil of Bombay is to be found in

I. L R., Ill Bom., page 193.*' The same doctrine is well
established in Madras, the cases being collected in the judgment
in Sama Rayar v. Annamalai ChettiJ^^ It has also been
recognized by this court in respect of a judgment of a court of
the Faridkote State in case No. 4 of Punjab Record 1874.
Lastly, the Limitation Act, 1877, in Article 117 of Schedule

II, expressly contemplates suits upon foreign judgments."

In the Civil Procedure Code of 1877, the rule of
res judicata was enacted, for the first time, so as to embrace
the bar of a fresh trial by a foreign judgment. The language
of the main rule was, no doubt, as regards the court of com-
petent jurisdiction, co-extensive with that which was employed
in the rule of lis pendens as enunciated in Sec. 12 of the
Civil Procedure Code. But the express exclusion of foreign
courts from that rule by a special Explanation attached to
Sec. 12, and its non-exclu^^ion from the rule of res judi*
cata clearly showed the wider scope of the latter rule. All
possible doubt in regard to the matter was removed by the
addition to Sec. 13 of Explanation VI, which provides that
••where a foreign judgment is relied on, the production
of the judgment duly authenticated is presumptive evidence
that the court which made it had competent jurisdiction,
unless the contrary appears on the record ; but such presump-
tion may be removed by proving the want of jurisdiction."
Since then the recognition of a foreign judgment as r^^ywc/i-
cato has been a portion of the positive law of British India.
In Kandasnmi v. Moidin Saib^*^ a suit was brought on a
judgment of a foreign court, and the judgment was held con-



4S No. 242. Title, /nrisdiction.
U Boloram v. Eameeaee Uossm, IV W. R. 0.
R.107.
Hoera >lonee«.Promothoiuttb, VIII W, R. 32.
Broeharee Bakshee v. Gopal Uhunder, XV
W. R.500.
** Sakharam «. Gano^li Satho.
4» X.L. a. VII Mad. 164.



Vide aUo—

Kaa loth Hammi. o. Noolanohepaya, vm

M. H. C. R. 14. J . "*

Kan lasami Pillai v. HoMin Saib, I. L. R.

II Mai. 3:17. ^

Nallataiiibi M a<laliar v, Ponnasami. L L.

R. II Mat 400. ' ^

4» I. L. R. II. Mai. 337.



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572 ZRioscsimrT or OECisicirs ot covits xir pbotxcted kitttb sTms. [S. 220*

elusive against the defendant. In the Civil Procedure Code of
1882, the section was amended so as to render the competency
of jurisdiction necessary in regard to the subsequent suit als*>.
That did not nfFect, however, the eflfect of foreign judgments
as res judicata.

220. In Bhavanishankar v. Pursadri^^^ the Bombay
High Court made a distinction between
Courts in Protected the judgments of French Courts and those
Native States are ^f j^^ courts of the Protected Native
fhTp^S.'Tf th^ States in India. ^ Mr. Justice Melvill, in
T\x\e o( res judicata, delivering the judgment of the court,
said — ** that the Civil Procedure Code
contains no provision for making a foreign judgment an engine
of attack, a.^ well as a means of defence. • . . We cannot
find in the Reports a sini^le instance in which a suit founded
upon the judjftnent of such a court has been entertained by a
court in British India, and in the absence of precedent, we are
not disposed to express an opinion favourable to the entertain-
ment of such suits. ... It may now be taken as esta-
blished that a court which entertains a suit on a foreign judg-
ment cannot institute an enquiry into the merits of theorioinal
action, or the propriety of the decision. It can feel no confi-
dence that it is doing justice between the parties, except in so
far as such confidence is based upon its e^eneral belief that the
tribunals of the Foreign State ordinarily conduct judicial enqui-
ries with intelligence and integrity. . . . Some courts in
Native States may be sufficiently well constituted, and their pro-
ceedings sufficiently well conducted, to entitle their judgments
to respect; but this is notoriously not so in regard to other
States, and, indeed, must be regarded as the exception rather
than the rule. Onr courts are not in a position to draw tiistinc-
tions, which would necessarily be invidious, and not necessarily
correct, between the courts of different Native States. • -. .
We think that it is safe and proper to hold that the legislature
did not intend that the courts of British India should in any way
enforce the decrees of any courts situate in Native States,
except such courts as may have been notified by the Governor-
General in Council under Sec. 434. It follows at once from
this that a suit cannot lie in a British Court upon the judgment
of any Native Court not so notified. . . . We think that
it was clearly the intention of the legislature that the decrees of

»o J L. R. VI Bom. 292.



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S, 220.] «inOB5»MENT O? ia3iaiOK8 0» OOTJIW IM PROTBOTSD WAHTl STATBB. 573

the privileged Native courts should occupy the same position
HS the decrees of British Court?, and should not carry with

them any greater advantages Except in this

peculiar case (in which suits are permitted to be brought in the
High Courts on judgments of Courts of Small Causes in order
to obtain execution against immovable property) it must be
taken to be settled that a suit will not lie in our courts upon
the judgment of any court in British India; and it follows
that a suit will not lie upon the judgment of any Native court,
although such court may have been notified under Sec. 434."
Thisdecision was dissented from in SamaRayarv. Annamalnu
chetti,^^ in which Hutchins, J., said that— " he 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 «f our courts is that
Sec. 244 of the Code provides that all questions relating to the



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