1980 (10) TMI 204

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....suit claim was based on an arrangement contained in a deed dated 3rd February,1975. The first respondent-decree-holder filed E. P. 9 of 1976, on the file of the District Court, East Thanjavur at Nagapattinam, for recovery of Rs. 1,09,840 by attachment and sale of the immoveable properties mentioned in the list attached to the execution petition. The second respondent herein, who was the first respondent in the execution petition before the Court below, remained exparte. The second defendant, who was the second respondent in the execution petition alone resisted the said execution petition on the following grounds. 1. that the decree is not, one passed on merits; 2. that the proceedings in which the' judgment and decree....

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....m they or any of them claim litigating under the same title except among other things where it has not been given on the merits of the case. According to the learned counsel for the appellant as soon as summons were served in the suit, the first and second defendants, the appellant and the second respondent herein, appeared by counsel and affidavits were filed on behalf of the defendants for leave to defend. But as the leave to defend sought for by the defendants was not given and the Court passed a decree straightway, it was contended by the appellant before the Court below that the decision rendered in the suit by the Singapore High Court was Indo Singapore Traders P. Ltd. Mad. 119 not on merits and, therefore, the judgment cannot be take....

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....ime, and so an ex parte decree was passed. He then appeared, asked for the matter to be reopened and for leave to defend the suit, The Court noted as follows :- "Defence unsatisfactory. Leave to defend will be granted on defendant giving security in Rs. 1300 on or before the 12th January 1925". As the security was not furnished by the defendant, a decree came to be passed for the amount claimed in the suit. Later, a suit was filed on the said foreign judgment before the Sub-Court, Tuticorin, under Section 13 C. P. C., as the defendant was then living at Tuticorin. The suit was resisted inter alia on the ground that the foreign decree relied upon in the plaint is not a decree on the merits, and, therefore, the suit is maintainabl....

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.... on the basis of a negotiable instrument under the summary procedure provided in 0. 37, C. P. Code, after the defendant appeared through his counsel and his prayer for leave to defend had been rejected from a Court in the State of Bikaner, which is a native State and, as such, it is a foreign court for the purpose of Section 13 of the Code. The question arose as to whether the said decree is one on merits and as such conclusive under Section 13. After considering the question in an elaborate detail, if I may say so with respect, after referring to all the relevant decisions on the point, the Division Bench observed as follows.- "From a review of the case law made above, we are clearly of opinion that in order that a judgment of a f....

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....ording to the learned Judges, a decree passed in a suit brought under the provisions of 0. 37 C. P, C. without going into the merits of the defence either because the defendant failed to appear or because he was not g1ven leave to defend, cannot be held to be a judgment on the merits of the case. Referring to the Madras case cited above, the learned Judges observed that the facts of the Madras case was somewhat parallel to the case before them and that the Madras judgment gives due significance to the special provisions dealing with the summary procedure under 0. 37. 9. The learned counsel for the respondents, however, relied on a decision of the Supreme Court in Ramakarandas Radhavallab v. Bhagavandas Dwarkadas, , in support of his subm....