1942 (3) TMI 14 - HC - Indian Laws

Foreign judgment execution appeal allowed under Section 44A, CPC. Burden of proof not met by judgment-debtors.

The court allowed the appeal for the execution of a foreign judgment under Section 44A, CPC. It found that the judgment-debtors had the opportunity to ... - Issues Involved:1. Execution of a foreign judgment under Section 44A, Civil Procedure Code (CPC).2. Conclusiveness of a foreign judgment under Section 13, CPC.3. Whether the foreign judgment was given on the merits of the case.Detailed Analysis:1. Execution of a Foreign Judgment under Section 44A, Civil Procedure Code (CPC):The appellant, Sheikh Abdul Rahim, sought to execute a decree obtained in the High Court in London against the judgment-debtors in the Alipore Court. The execution proceedings were initiated under Section 44A, CPC, which allows for the execution of decrees from superior courts of the United Kingdom or reciprocating territories in British India as if they had been passed by a District Court. The section mandates that a certified copy of the decree and a certificate stating the extent of satisfaction or adjustment of the decree be filed in the District Court. The District Court must refuse execution if the decree falls within any exceptions specified in Section 13, CPC.2. Conclusiveness of a Foreign Judgment under Section 13, CPC:Section 13, CPC, provides that a foreign judgment shall be conclusive as to any matter directly adjudicated upon between the same parties, except in cases where the judgment was not given on the merits of the case. The judgment-debtors argued that the judgment from the High Court in London was not given on the merits because they were not present in court during the hearing and no evidence was presented by the plaintiff.3. Whether the Foreign Judgment was Given on the Merits of the Case:The judgment-debtors contended that the absence of the defendants at the hearing and the lack of evidence presented by the plaintiff rendered the judgment non-conclusive. However, the court noted that the defendants were represented by solicitors in London who were aware of the trial date but chose not to appear. Correspondence between the solicitors indicated that the defendants were aware of the proceedings and chose not to participate.The court emphasized the presumption under Section 114 of the Evidence Act that judicial acts have been regularly performed. The burden was on the defendants to rebut this presumption, which they failed to do. The court referred to the case of Keymer v. Visvanatham Reddi, where the Privy Council held that a judgment given without examining the merits due to procedural default by the defendant is not a judgment on the merits. However, in the present case, the court found that the controversy was directly adjudicated upon, and the judgment was given on the merits despite the defendants' absence.The court concluded that the defendants had the opportunity to contest the judgment in the English courts but did not do so. Therefore, the judgment was considered to have been given on the merits of the case. The appeal was allowed, and the matter was remitted to the District Judge to proceed according to law.Separate Judgment by Gentle, J.:Gentle, J. concurred with the main judgment and added that under Section 44A(3), CPC, the burden is on the judgment-debtors to prove that the decree was not adjudicated on its merits. He pointed out that the certificate from the official referee in London did not conclusively show that no evidence was called. The presumption that judicial proceedings were conducted regularly applied, and there was no evidence to rebut this presumption. Therefore, the judgment-debtors failed to establish that the decree was not given on the merits.In conclusion, the court held that the foreign judgment was conclusive and given on the merits, allowing the appeal and directing the District Judge to proceed with the execution of the decree.