India: Executability & Enforceability Of Foreign Judgments And Decrees In India: Judicial Trends Part 2

Last Updated: 23 October 2000
This article is part of a series: Click Executability & Enforceability Of Foreign Judgments And Decrees In India: Judicial Trends ~ Part 1 for the previous article.
B. Not Given On The Merits Of The Case:

This exception in S. 13 is basically for the purpose of ensuring that the judgment or decree is totally conclusive in nature and the plaintiff's claim has been assessed by the foreign Court before a judgment is rendered upon it.

The following are the cases in which the Courts have held that the judgments were not passed on the merits of the case and hence were inconclusive.

The fountainhead of all decisions under this head has been the decision of the Privy Council in the case of D.T. Keymer v. P. Viswanatham37. In this case, a suit for money was brought in the English Courts against the defendant as partner of a certain firm, wherein the latter denied that he was a partner and also that any money was due. Thereupon the defendant was served with certain interrogatories to be answered. On his omission to answer them his defence was struck off and judgment entered for the plaintiff. When the judgment was sought to be enforced in India, the defendant raised the objection that the judgment had not been rendered on the merits of the case and hence was not conclusive under the meaning of S. 13(b) of CPC. The matter reached the Privy Council, where the Court held that since the defendant's defence was struck down and it was treated as if the defendant had not defended the claim and the claim of the plaintiff was not investigated into, the decision was not conclusive in the meaning of S. 13(b) and therefore, could not be enforced in India.

The aforesaid decision of the Privy Council was relied upon and further explained in the case of R.E. Mahomed Kassim & Co. v. Seeni Pakir-bin Ahmed38 by a full bench of the Madras High Court. In this case the defendants were properly served however they did not appear. According to one of the rules of procedure of the foreign Court, in case defendants are properly served but do not appear and contest and the judgment is given for the plaint claim without any trial, judgment was entered up in favour of the plaintiff as a matter of course. This is what had happened in the present case and the judgment had been entered in favour of the plaintiff as a matter of course without any trial. The judgment was brought to India for enforcement. The defendants resisted the enforcement on the basis that the judgment was not conclusive since it was not passed on the merits of the case. The matter reached the Full Bench of the Madras High Court, wherein it was held that a decree obtained on default of appearance of the defendant without any trial on evidence is a case where the judgment must be held not to have been on the merits of the case.39 In the obiter dictum the Court observed that in a case where there was default in appearance, but however the claim of the plaintiff was tried in full on evidence and the plaintiff proved his case, the decision may be treated as a judgment on the merits of the case. 40

In the case of Gudemetla China Appalaraju v. Kota Venkata Subba Rao 41, an interesting issue arose concerning S. 13(b) of CPC. In this case it was questioned whether a consent decree obtained in a foreign court could be regarded as a decision given on the merits of the case within the meaning of S. 13 of CPC. The Court held that a decree to be conclusive within the meaning of S. 13 of CPC, there should be a controversy and an adjudication thereon. It was further observed since in the present case there was no controversy and that there was no dispute before the Court to decide, the decree was passed mechanically in accordance with a prescribed Rule. Therefore the Court held that the judgment was not on the merits of the claim and therefore was not conclusive within the meaning of S. 13 of CPC.42

In the case of Gurdas Mann v. Mohinder Singh Brar 43, the Punjab & Harayana High Court held that an exparte judgment and decree which did not show that the plaintiff had led evidence to prove his claim before the Court, was not executable under S. 13(b) of the CPC since it was not passed on the merits of the claim.

In the case of K.M. Abdul Jabbar v. Indo Singapore Traders P. Ltd.44 , the Madras High Court held that passing of a decree after refusing the leave to defend sought for by the defendant was not a conclusive judgment within the meaning of S. 13(b) of CPC.

In the case of Middle East Bank Ltd. V. Rajendra Singh Sethia 45, the Calcutta High Court held that a judgment and decree given by default under a summary procedure contemplated by Order 14 of the Supreme Court Rules of England, in the absence of appearance by the defendant and filing of any defence by him, and without any consideration of the plaintiff's evidence is not a judgment given on the merits of the case and hence is not conclusive within the meaning of S. 13(b) of CPC. Therefore the decree is not executable in India.

In the case of M.K. Sivagaminatha Pillai v. K. Nataraja Pillai 46, the Madras High Court held that even though a decree in a foreign court may be passed ex parte, it will be binding if evidence was taken and the decision was given on a consideration of the evidence. In this case the defendant was ordered to pay a part of the suit claim as a security for the purpose of defending the claim. However the defendant failed to make the payment of the security and on that basis the court passed the decree against the defendant. The court on the above principle held that the judgment and decree was not enforceable in India under S. 13.

In the case of Y. Narsimha Rao v. Y. Venkata Lakshmi 47, the Supreme Court while interpreting S. 13(b) of CPC held that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. The Court further held that a mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the Court, or an appearance in the court either in person or through a representative for objecting to the jurisdiction of the court, should not be considered as a decision on the merits of the case. 48

In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar 49, the Madras High Court held that 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. 50

In the case of B. Nemichand Sowcar v. Y.V. Rao 51, a suit was instituted in the foreign Court where the defendant entered appearance and filed his written statement. On the day of the hearing the defendant remained absent. The court passed a decree without hearing any evidence. The Madras High Court held that the decree was not passed on the merits of the case and hence inconclusive within the meaning of S. 13(b) of CPC.

In the case of Firm Tijarati Hindu Family Joint Kesar Das Rajan Singh v. Parma Nand Vishan Dass 52, a peculiar situation arose. In this case the plaintiff had filed a suit on the basis of a promissory note. However, the plaintiff himself left the country and in subsequent proceedings since he was unable to provide the promissory note to his advocate in the foreign country the suit got dismissed. The plaintiff later on filed another suit in the local courts. The defendant took the plea that the present suit was barred by res judicata. The Court held that the judgment on the previous suit since it did not touch upon the merits of the case, therefore could not be held to be res judicata for the present suit 53.

In the case of A.N. Abdul Rahman v. J.M. Mahomed Ali Rowther 54, it was held that a decision on the merits involves the application of the mind of the court to the truth or falsity of the plaintiff's case and, therefore, though a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex parte, a decision passed without evidence of any kind and merely on the pleadings cannot be held to be a decision on the merits.

In the case of Algemene Bank Nederland NV v. Satish Dayalal Choksi55 the facts were that a summary suit was filed against the defendant in a foreign country. The defendant was granted unconditional leave to defend the suit. He filed his defence but at the final hearing he failed to appear. Hence an ex parte decree was pronounced in favour of the plaintiff. The judgment stated that "the defendant having failed to appear and upon proof of the plaintiff's claim" judgment is entered for the plaintiff. The Single Judge of the Bombay High Court after verifying the exhibits filed by the Plaintiff before the foreign Court observed that the foreign Court seems to have proceeded to pronounce the judgment in view of the defendant's failure to appear at the hearing of the case to defend the claim on merits. On that basis the Court held that the judgment was not on the basis of the merits of the case. This decision was appealed against in Appeal No. 869 of 1990 whose decision is hereinbelow.

In Algemene Bank Nederland NV v. Satish Dayalal Choksi (Appeal No. 869 of 1990, unreported judgment decided on 3.8.92), the Bombay High Court reversed the findings of the Single Judge after appreciating the additional evidence which was led in the Appeal Court. The Court held that the judgment and decree was passed after investigating the claim and therefore it was passed on merits. However the Court further held that in their judgment "an ex parte judgment can be held to be not on merits only in cases where a judgment is delivered on the ground of limitation or want of jurisdiction or where the defence is struck off as in the case before the Privy Council. In such cases, the Court declines to examine the merits because the suit is barred by limitation or the Court lacks jurisdiction to entertain the suit or the defendant is prevented from defending the suit. It is only in these kind of exceptional cases that it is possible to suggest that the decree is not passed on merits." 56

The following are the cases in which the Courts have held that the judgments were passed on the merits of the case.

In the case of Ephrayim H. Ephrayim v. Turner Morrison & Co. 57, it was held that where no defence is raised and only an adjournment is sought, and the request for adjournment is refused and the judgment is proceeded on the evidence of the Plaintiff, it cannot be said that the judgment is not on the merits of the claim. Therefore S. 13(b) of CPC will not be able to come to the rescue of the defendant.

In the case of Gajanan Sheshadri Pandharpurkar v. Shantabai 58, the Bombay High Court held that the true test for determining whether a decree is passed on the merits of the claim or not is whether the judgment has been give as a penalty for any conduct of the defendant or whether it is based on a consideration of the truth or otherwise of the plaintiff's case. Since in the present case, although the defendant was considered to be ex-parte, the claim of the plaintiff was investigated into, the objection under S. 13(b) was held to be unsustainable.

In the case of Trilochan Choudhury v. Dayanidhi Patra 59, the defendant entered appearance in the foreign Court and filed his written Statement. However, on the appointed day for hearing the defendant's advocate withdrew from the suit for want of instructions and also the defendant did not appear. The defendant was placed exparte. The Court heard the plaintiff on merits and passed the decree in his favour. The Court held that the foreign decree and the judgment was passed on the merits of the claim and was not excepted under S. 13(b) of the CPC.

In the case of Mohammad Abdulla v. P.M. Abdul Rahim 60, the defendant had passed on a letter of consent to the plaintiff that the decree may be passed against him for the suit claim. The Court held that since the defendant agreed to the passing of the decree against him, the judgment could not be said to be not on the merits of the claim.

In the case of (Neyna Moona Kavanna) Muhammad Moideen V. S.K.R.S.K.R. Chinthamani Chettiar 61, the defendant entered appearance. The defendant also filed his written statement. However, when the matter was posted for trial, a joint application was moved wherein it was agreed that the matter be postponed for three months with a view to settlement and that if not settled judgment be entered for plaintiffs as prayed for with costs less Rs. 50 and that the property mortgaged with the plaintiff be sold. Subsequently the defendant did not appear and the matter was also not settled. Therefore the Court passed a decree in favour of the plaintiff in terms of the joint application. During execution it was contended that the judgment and decree was not on the merits of the case and therefore was not executable. The court held that since the defendant deliberately chose not to insist on their plea and not to adduce evidence of it, the matter was not in the purview of S. 13(b) of CPC. It was further held that the consent operated as estoppel against the defendant.

In the case of Wazir Sahu v. Munshi Das 62, the Patna High Court held that if one of the issues had not been dealt with, that itself would not justify a finding that the decision was not upon the merits.

In the case of Vithalbhai Shivabhai Patel v. Lalbhai Bhimbhai 63, it was held that where the Court had taken evidence and examined witnesses and after taking all the oral evidence and considering the same together with the documents had decreed the claim, the decision must be treated as given on merits and the fact that the defendant did not appear cannot make it otherwise.

In the case of S. Jayam Sunder Rajaratnam v. K. Muthuswami Kangani,64 , it was held that though the judgment and decree of a foreign court might have been passed ex parte, if it was passed on a consideration of the evidence adduced in the case, the decision must be deemed to have been on the merits.


By reading the aforesaid cases under Section 13(b) of CPC the following proposition may be laid:

A judgment or decree passed by a Foreign Court against an Indian defendant, who has chosen to remain ex-parte, may not be enforceable against him, until unless it can be shown that the said judgment was passed after investigation into, and leading of evidence on the plaintiff's claim.


37. AIR 1916 PC 121.

38. AIR 1927 Mad. 265(FB). See Mallappa Yellappa Bennur v. Raghavendra Shamrao Deshpande, AIR 1938 Bom. 173 at 177, the Court held that although under normal circumstances the court does not go into the merits of the case decided in the foreign court, however, due to S. 13(b) of CPC, the Courts in India have a right to examine the judgment to see whether it has been given on the merits.

39. Ibid. at p. 270.

40. Id.

41. AIR 1946 Mad. 296. However, this decision may be contra to the decision of the Supreme Court in the case of Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991)3 SCC 451, where the Court had held that the judgment should be a result of the contest between the parties, however in case the defendant agrees to the passing of the decree then it will not be hit by S. 13(b) of CPC.

42. Ibid. at p. 297.

43. AIR 1993 P&H 92.

44. AIR 1981 Mad. 118.

45. AIR 1991 Cal. 335.

46. AIR 1961 Mad. 385 at . 388.

47. (1991)3 SCC 451.

48. Ibid. at p. 461.

49. AIR 1973 Mad. 141. At p. 145 para 31, the Court held that the burden of proof for showing that the execution/enforceability of the judgment or decree was excepted due to the operation of S. 13 is upon the person resisting the execution.

50. Ibid. at p. 145 para 28.

51. AIR 1946 Mad. 448.

52. AIR 1959 Punj. 306.

53. Lalji Raja & Sons v. Firm Hansraj Nathuram, AIR 1974 SC 1764 at. 1768, the Supreme Court held that "It is a well established principle of private international law that if a foreign judgment was obtained by fraud or if the proceedings in which it was obtained were opposed to natural justice, it will not operate as res judicata."

54. AIR 1928 Rangoon 319.

55. AIR 1990 Bom. 170.

56. In the Author’s view this decision by the Bombay High Court may be erroneous since in case a suit is barred by limitation or the foreign Court holds that there is no jurisdiction, then the suit will be dismissed. On dismissal of the suit, there cannot be any decree/judgment which may be sought for execution. The latter part is also erroneous since it limits the scope of S. 13(b) only to those circumstances where the defendant is prevented from defending the case on merits. This proposition will be contra to the other judgments of the other courts which hold that even ex-parte decisions can be held to be on the merits of the case in case the plaintiff’s claim has been investigated into by the Court, although the Defendant has not appeared or defended the claim due to any circumstance.

57. AIR 1930 Bom. 511 at 515.

58. AIR 1939 Bom. 374.

59. AIR 1961 Ori. 158.

60. AIR 1985 Mad. 379 at pp. 382 and 383.

61. AIR 1929 Mad. 469.

62. AIR 1941 Pat. 109 at p. 112.

63. AIR 1942 Bom. 199 at p. 202.

64. AIR 1958 Mad. 203. This decision was followed in the case of M.K. Sivagaminatha Pillai v. Nataraja Pillai, AIR 1961 Mad. 385. Also see B.N. Krishnaswamy Chetty v. Madhappa Chettiar, AIR 1925 Mad. 788 at p. 790, where it was held that unless the judgment is given merely on default and in any case in which, in spite of the default any evidence is taken for the plaintiff, and judgment is given thereon, it may be difficult to say, that it is not a decision on the merits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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This article is part of a series: Click Executability & Enforceability Of Foreign Judgments And Decrees In India: Judicial Trends ~ Part 1 for the previous article.
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