TaxTMI 
TaxTMI 
1984 (12) TMI 341
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....and has directed the execution to be proceeded with. This revision is directed against the orders of the Court below. 2. Mr. P. Shanmugam, learned counsel for the judgment-debtor, would put forth his contentions under the following heads and I will deal with them one, by one. Firstly, it is contended that the foreign judgment is one not pronounced by a Court of competent jurisdiction and hence, it will come within the mischief of S. 13(a) of the Code. As to when foreign Courts could derive jurisdiction in regard to suits of a personal nature has been recapitulated by a Bench of this Court, consisting of Sankaran Nair and Napier, JJ in Ramanathan Chettiar v. Kalimuthu Pillai, ILR (1914) Mad 163: AIR 1914 Mad 556. The Bench recounted the ratio of Fry, L J., in Rousillon v. Rousillon, (1880) 14 Ch 1 351. That has been reiterated practically six years later by another Bench of this Court, consisting of Ramamurti and Krishnaswamy Reddy, JJ., in R.M. V. V. Achi v. R. A. A. R. Chettiar, AIR 1973 Mad 141 . The Supreme Court in Moloji Nar Singh Rao v. Shankar Saran, [1963] 2 SCR 577 has also countenanced the same ingredients as conferring jurisdiction on a foreign Court in respect of act....
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.... a casual passage through, or a momentary presence in that foreign country, so as to say it was not a sufficient residence for creating jurisdiction. The judgment-debtor of course put forth a written plea that he came to that foreign country only as a tourist and not as a permanent resident. But he never cared to get into the box and substantiate this plea of his. The evidence placed by the decree-holder is ample enough to draw the inference that at the time when the action began and the summons was served, the judgment-debtor was a resident of that foreign country. Further, we find that as per Ex. At the judgment-debtor after acknowledging the receipt of the summons and the statement of claim, gave consent to take a judgment for the sum of E 13,420.00. This would constitute an agreement to submit himself to the foreign Court in which judgment has been obtained. It is not a case of mere intention oil the part of the judgment-debtor to submit to the jurisdiction of the foreign Court, but it had been translated into action by the passing of the letter of consent prior to the passing of the decree. Of course, Mr. P. Shanmugam, learned counsel for the judgment-debtor, made a strenuous ....
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....nd Oppenheim v. Mahomed Haneef, ILR (1922) Mad 496: (1922) 43 MLJ 422: AIR 1922 PC 120 that a judgement given on default of appearance of the defendant on the plaint allegations without any trial on evidence is not a judgment given on merits of the case within the meaning of S. 13(b) of the Code, and a suit cannot be maintained in the British Indian Courts upon such a judgment. The judgment in the present case is a consent Judgment and is based on the letter of consent as per Ex. Al. Mr. P. Shanmugam, learned counsel for the judgment-debtor, would submit that even a consent judgment would not be a judgement on the merits of the case. He would primarily rely on a pronouncement of Shahabuddin, J., in China Appalaraju v. Venkata Subba Rao AIR 1946 Mad 296 . The learned Judge, after adverting to the observations of the Privy Council relating to S. 13(b) of the Code, in Keymer v. Visvanatharn Reddy, AIR 1916 PC 121: ILR (1916) Mad 112 : h Mad U 35 that, that provision "refers to those cases where for one reason or another the controversy raised in the action has not, infact, been the subject of direct adjudication by the Court", came to the conclusion on the facts of the case before him....
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....rred. There are expressions of opinion in some of the numerous English cases upon the subject. It seems to me that such a doctrine may be founded, not upon the judgment pronounced, but upon the consent with all its limits and to all its extent which preceded the judgment: that, in short, you have therefore left the region of strict res judicata and entered the region of a possible wide estoppel." After adverting to the above observations, the learned Judges held as follows : "It does not matter what the principle of recognizing a foreign judgment is, whether it is called res judicata or estoppel but that consent will do as estoppel is clear from tile judgment of Lord Shaw. 6. S. 13(b) of the Code by itself does not speak about any controversy. The element of controversy-may be relevant only to find out whether the adjudication was oil merits. Even if that test is to be applied, I find that at the relevant point of time, there was in fact a controversy and that only forced the plaintiff to go to court and that controversy was eased out subsequently after the service of summons on the defendant and the defendant passing on the letter of consent. This is not a case of a....
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....support of the second contention of his. The learned Judge there dealt with a case where the foreign Court proceeded with the matter under summary procedure after refusing leave to defend sought for by the defendant, and in that context, relying on pronouncements to that effect, held that such a judgment is not one tendered on merits. The facts of the present case do not come anywhere near the facts dealt with by the learned Judge. I do not find that the present case before the foreign Court was one instituted under the summary procedure and that there was either a default on the part of the judgment debtor to appear before Court or a declination of leave to defend by that Court. Hence, the second contention also stands eschewed. 8. Thirdly, it was contended on behalf of the judgment-debtor that the proceedings in which the judgment was obtained are opposed to natural justice and further" it has been obtained by fraud. Learned counsel wants to bring the case under sub-ss. (d) and (e) of S. 13 of the Code. The facts placed in the case speak against the judgment-debtor. The decree- holder went into the box to speak about the circumstances under which he obtained the decree before ....