Foreign ex parte decree must be on merits to be executable in India; constructive res judicata needs prior final adjudication.

Constructive res judicata does not bar a later execution objection unless the earlier issue was finally adjudicated before the subsequent application was filed; where both objections are pending and decided separately on the same date, the bar does not arise. A foreign ex parte decree from a reciprocating territory is executable in India only if it satisfies Section 13, including the requirement that the judgment be on the merits. A decree entered merely because the defendant did not appear, without substantive judicial consideration of the dispute or evidence, is not a judgment on merits and cannot be executed in India.

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Issues: (i) whether the second objection to execution was barred by constructive res judicata; (ii) whether the ex parte foreign decree was a judgment on merits and therefore executable in India under the Code of Civil Procedure.

Issue (i): whether the second objection to execution was barred by constructive res judicata.

Analysis: The objection based on non-compliance with the provisions governing execution and the objection based on the decree being not on merits were both raised before any final decision had been given on the first application. Both applications were heard together and decided by separate orders on the same date. Constructive res judicata applies only when a matter could and should have been raised before a prior final decision. As there was no earlier final adjudication before the second application was filed, the bar did not arise.

Conclusion: The objection was not barred by constructive res judicata and the finding of the High Court on that ground was incorrect.

Issue (ii): whether the ex parte foreign decree was a judgment on merits and therefore executable in India under the Code of Civil Procedure.

Analysis: Under Section 44-A, execution of a foreign decree from a reciprocating territory is subject to the exceptions in Section 13, including the exception where the foreign judgment was not given on the merits of the case. A judgment is on merits only when the foreign court applies its mind to the controversy and considers the evidence or material before it; an ex parte decree passed merely because the defendant did not appear, without judicial examination of the merits, is not enough. On the record, the English court granted leave to serve and later passed an ex parte monetary decree without indicating any consideration of the disputed issue of defective goods or any adjudication of the controversy between the parties. The decree therefore lacked the character of a decision on merits.

Conclusion: The foreign decree was not on merits and could not be executed in India.

Final Conclusion: The objection to execution succeeded on the merits issue, the foreign decree was held unenforceable in India, and the appeal challenging execution was allowed while the connected appeal was dismissed.

Ratio Decidendi: A foreign ex parte decree is executable in India under Section 44-A only if it satisfies Section 13, and it is not a judgment on merits unless the foreign court has substantively considered the controversy and the supporting evidence; constructive res judicata cannot arise in the absence of a prior final adjudication.

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