High Court seeks clarity on enforcement of foreign default judgments in India under Civil Procedure Code Section 13(b).

The High Court referred the question of whether a suit lies in India on a foreign judgment given by default to a Full Bench for a definitive opinion. The court emphasized the stringent interpretation of Section 13(b) of the Civil Procedure Code, stating that foreign judgments must be given on the merits to be conclusive in India. Other aspects of the case were reserved for further disposal after the Full Bench's opinion.

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Issues Involved:
1. Validity of service of summons on the defendants.
2. Whether a foreign judgment by default can form the basis of a suit in India.
3. Interpretation of Section 13 of the Civil Procedure Code regarding foreign judgments.

Issue-wise Detailed Analysis:

1. Validity of Service of Summons on the Defendants:
The plaintiff initiated a suit based on a judgment from the Supreme Court of Penang against the defendants. The Subordinate Judge dismissed the suit, holding that the judgment was obtained by "procuring a false and fraudulent return of service of the writs of summonses" and that the defendants had not been served at all. However, the High Court found no real defect in the service of summons. The verified report of the process-server indicated that the 1st defendant was personally served, and the 1st defendant did not deny this. Regarding the other two defendants who were served by substituted service, the High Court found that the process-server acted correctly by applying for substituted service after failing to find the defendants at their usual address. The court concluded that there was no fraud or mistake in these proceedings and that the defendants should have approached the Penang Court to address any errors.

2. Whether a Foreign Judgment by Default Can Form the Basis of a Suit in India:
The defendants' counsel argued that a foreign judgment by default cannot form the basis of a suit in India, relying on Section 13 of the Civil Procedure Code, Clause (b), which states that a judgment not given on the merits is not binding. The High Court discussed various precedents, including Keymer v. Visvanatham Reddi and Oppenheim v. Mahomed Haneef, which held that judgments by default are not considered judgments on the merits. Conversely, the court also referred to Janoo Hassan v. Mahamad Ohuthu, which held that a judgment by default could be considered on the merits if the defendant had the opportunity to contest but did not. Ultimately, the court found it difficult to reconcile these views and decided to refer the question to a Full Bench for a definitive opinion.

3. Interpretation of Section 13 of the Civil Procedure Code Regarding Foreign Judgments:
Section 13 of the Civil Procedure Code governs the binding nature of foreign judgments in India. Clause (b) specifies that a foreign judgment is not conclusive if it has not been given on the merits of the case. The High Court noted that the Indian law, as interpreted in Keymer v. Visvanatham Reddi, is more stringent than English law, which allows suits on foreign judgments by default. The court observed that the Privy Council's interpretation in Keymer's case implied that a judgment by default does not meet the requirement of being on the merits. This interpretation was further supported by subsequent cases like Oppenheim v. Mahomed Haneef. The court concluded that under Indian law, a foreign judgment by default, without any trial on evidence, is not considered a judgment on the merits and thus cannot form the basis of a suit in India.

Conclusion:
The High Court referred the question of whether a suit lies in India on a foreign judgment given by default, without any trial on evidence, to a Full Bench for a definitive opinion. The court also reserved other points in the case for further disposal after the Full Bench's opinion. The judgment emphasized the stringent interpretation of Section 13(b) of the Civil Procedure Code, which requires that foreign judgments must be given on the merits to be conclusive in India.

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