JUDGMENT
N. Krishnaswamy Reddy, J.
1. This appeal arises out of the order of the learned First Additional Subordinate Judge, Coddalore, dismissing the petition, E.P. No. 201 of 1967 filed for executing the decree in O.S. No 598 of 1966 of the Singapore High Court.
2. The plaintiff-petitioner who is the appellant filed the suit against the respondent for recovery of a very large sum on the basis of the alleged advance to the firm of which he was a partner, in Singapore High Court. She obtained a decree against, the respondent and sought to realise the decree amount of Rs. 3,90,432-01 with interest and costs, by attachment and sale of the immovable properties, belonging to the respondent in the Court of the Subordinate Judge, Cuddalore. The execution petition was filed under Section 44-A, Civil Procedure Code since the decree of the High Court of Singapore is the decree of a reciprocating territory.
3. The Execution Petition was resisted by the respondent on the following grounds, (a) that there was no reciprocating agreement between India and Singapore after Singapore became an independent territory in August, 1965 and that, therefore, Section 44-A Civil Procedure Code, will not apply to the decree passed by the Singapore High Court; (b) that he never submitted to the jurisdiction of i he Singapore High Court that therefore, the Singapore High Court had no jurisdiction to pronounce judgment or pass decree against him and that therefore the judgment and decree was a nullity; and (c) that the judgment had been given on default of appearance without any trial or evidence and (d) since the decree was not one passed on merits, the decree cannot be executed under Section 44, Civil Procedure Code.
4. The learned First Additional Subordinate Judge, Cuddalore, while overruling the grounds of objection raised by the respondent about the maintainability of the execution petition under Section 44-A, Civil Procedure Code, accepted the other grounds of objection raised by the respondent and dismissed the Execution Petition.
5. It was not seriously disputed before us about the maintainability of the Execution Petition under Section 44-A, Civil Procedure Code. But the learned Counsel for the respondent reiterated the other two grounds raised in the lower Court that the decree passed by the Singapore High Court was not competent as the respondent had not submitted to its jurisdiction and that the decree could not be executed as it was not passed on merits.
6. We will first dispose of the contention that Section 44-A, Civil Procedure Code will not apply as the territory of Singapore is not a reciprocating territory. The relevant provisions of Section 44-A, Civil Procedure Code, read thus:
Section 44-A(1) : Where a certified copy of a decree of any of the Superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.
Explanation 1 – ‘Reciprocating territory’ means any country or territory outside India which the Central Government may by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and ‘superior Courts’ with reference to any such territory, means such Courts as may be specified in the said notification.
The Central Government issued a Notification G.S.R. No. 1225 as provided in Explanation 1, on 17th June, 1968. It reads thus:
In exercise of the powers conferred by Explanation 1 of Section 44-A of the Code of Civil Procedure (V of 1908) and in supersession of the notification of the Government of India in the Ministry of Law No. F-29III/53-1, dated 1st September, 1955, the Central Government hereby declares the Republic of Singapore to be a reciprocating territory for the purpose of the said section and the High Court of the Republic of Singapore to be a Superior Court with reference to that territory.
The notification of 1st September, 1955 referred to in the above notification is in the following terms:
S.R.O.M. 1867 : In exercise of the powers conferred by Explanation-1 of Section 44-A of the Code of the Civil Procedure (V of 1908), the Central Government hereby declares the Colony of Singapore to be a reciprocating territory for the purposes of the said section and the Supreme Court of the Colony of Singapore to be a Superior Court with reference to that territory.
The said notification declared and recognised Singapore as a reciprocating territory and the High Courts of the said territory as Superior Courts for the purpose of Section 44-A(1), Civil Procedure Code. The judgment and decree sought to be executed by the appellant were those of the High Court of Singapore. The Judgment is Exhibit A-17 dated 30th July, 1966. The notification S.R.O. No. 1867 dated 1st September, 1955 was in force on the date when the decree was passed, namely, 30th July, 1966. That notification was superseded by the later notification G.S.R. No. 1225 dated 17th June, 1968 when the Colony of Singapore had become a Republic. It is, therefore, clear that at the time when the decree was passed by the High Court of Singapore, Singapore was a reciprocating territory. Section 44-A(1), Civil Procedure Code, will apply to the execution of the decree passed by the High Court of Singapore for execution in the Indian Courts.
7. The next point for consideration is whether the respondent submitted to the jurisdiction of the High Court of Singapore and whether the decree passed against the respondent was by a competent Court.
8. The following facts are relevant for consideration: The respondent is one of the three partners of the firm run under the name and style of “R.M.V. Vellachi Achi” which was doing money-lending business at No. 47, Market Street, Singapore. The partnership appears to have been started on nth February, 1951 – vide Exhibit A-1, the certificate of registration. The appellant and respondent and one N.V. Shangham Chettiar were the partners. They were admittedly living in India. The partnership business was carried on in Singapore by a Power of Attorney Agent of the firm, one Manickam, by virtue of the General Power of Attorney granted to him by the appellant which Was executed and registered in India on 10th March, 1951–vide ¦’Exhibit A-3. The said Manickam on behalf of the firm was filing suits in Singapore Courts for recovery of moneys due to the appellant by the parties in Singapore. One of the three partners, namely, N.V. Shanmugham Chettiar died in 1959. The partnership business continued even after the death of Shanmugham Chettiar. Manickam, the Power of Attorney Agent, executed a deed of substitution in favour of h.is son, Raghavan on 6th July, 1959 conferring all the powers given to him by R.M.V. Vellachi Achi under the Power of Attorney Deed dated ioth March, 1921.
9. The contention of the respondent is that he was not a subject of the Singapore Government at any time, that he was a non-resident foreigner with reference to that Government, that he was neither a permanent nor a temporary resident of Singapore either before or at the time of the institution of the suit or thereafter and as such the Court at Singapore had no jurisdiction to pass a decree against him and that, therefore, the judgment Exhibit A-17 was not passed by a Court of competent jurisdiction and as such, the judgment was a nullity.
10. No oral evidence has been let in by the parties since the appellant conceded before the trial Court that the respondent is an Indian subject and never resided in Singapore.
11. The learned First Additional Subordinate Judge on this point found that the respondent did not submit to the jurisdiction of the Singapore Courts and that the Singapore Court which passed the judgment Exhibit A-17 against the respondent is not competent to pass such a judgment and the judgment, therefore, was a nullity.
12. The appellant relied upon Exhibits A-3 to A-8 to show that the respondent submitted to the jurisdiction of the Courts at Singapore. Exhibit A-3 dated 10th March, 1951 is the General Power of Attorney given by R.M.V. Vellachi Achi, the appellant, to one Manickam to carry on the above said firm in Singapore. Exhibits A-4 to A-8 are the certified copies of the memorandum of judgments in the suits instituted by the Power of Attorney Agent against the local residents for the moneys alleged to have been due by them. The appellant, therefore, contends that the respondent being one of the partners of the firm and that since the firm had filed several suits in the Courts at Singapore, the respondent must be deemed to have submitted to the jurisdiction of the Singapore Courts. It is contended by the respondent that Exhibit A-3 was not executed on behalf of the partnership and that the suits covered by the judgments Exhibits A-4 to A-8 do not indicate that the respondent had submitted to the jurisdiction of the Courts at Singapore. It is also contended by him that even assuming that Exhibits A-3 to A-8 were deemed to be on behalf of and by the partnership, since the partnership was dissolved in 1962, these documents could be of no avail as the judgment Exhibit A-17 was obtained in 1966 subsequent to the dissolution of partnership.
13. It is well established that the following circumstances would give jurisdiction to the foreign Courts : (1) where the person is a subject of the foreign country in which the judgment has been obtained against him on prior occasions; (2) where he is a resident in the foreign country when the action is commenced; (3) where a person selects the foreign Court as the forum for taking action in the capacity of a plaintiff, in which forum he is sued later; (4) where the party on summons voluntarily appears; and (5) where by an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained – vide the decision in Ramanathan Chettiar v. Kalimuthu Pillai (1914) I.L.R. 37 Mad. 163.
14. There is no dispute that the respondent was not a resident of Singapore at any time. He never appeared individually in Singapore Courts either as plaintiff or defendant or in any other capacity. It does not appear that the respondent has contracted to submit himself to the forum of Singapore Courts in which the present judgment was obtained by the appellant. Exhibits A-4 to A-8 show that the suits against the local residents were filed by Ravana Mana Vena Vellachi Achi for the recovery of monies in pursuance of Exhibit A-3 the power of authorisation executed by the appellant.
15. It may be necessary to note in this context whether Exhibit A-3 the power of attorney executed by the appellant was on behalf of the partnership. In Exhibit A-1, the application for registration of the partnership, dated 24th February, 1951, in compliance with the provisions of the Business Names Ordinance, 1940 of Singapore, the business name has been given as ‘R.M.V. Vellachi Achi’, constitution of the business as ‘partnership’, the general nature of business as ‘money-lending’, the principal place of business as ’47, Market Street’ and the date of commencement of business as “11th February, 1951”. In the column of partners, the names and addresses of the following three persons are mentioned: (1) Ravana Mana Vena Vellachi Achi, wife of Ramanathan Chettiar, Kottaiyur, Ramnad District, South India (appellant); (2) Ravana Mana Ana Ramanathan Chettiar, son of Annamalai Chettiar, Karaikudi, Ramnad District, South India (respondent) and (3) Ravana Vena Shanmugham Chettiar, son of Narayana Chettiar, Viramattur, Ramnad District, South India. This application was again renewed on 5th November, 1959. Exhibit A-1 thus shows that there was partnership business in money-lending carried on in the name of partnership of “R.M.V. Vellachi Achi”, the partners being the appellant, the respondent and one Shanmugham Chettiar. Shanmugham Chettiar died before the renewal of the application and the partnership, after November, 1959, is said to have been continued with the appellant and the respondent as partners.
16. Exhibit A-3 is the power of authorisation purported to have been executed by R.M.V. Vellachi Achi in favour of Manickam on 10th March, 1951 in India to carry on the money-lending business at No. 47, Market Street, Singapore and in particular, to sue, enforce or to defend, answer and oppose all actions and other legal proceedings touching any matters concerning the money-lending business.
17. It is the case of the respondent that Exhibit A-3 was not executed by the appellant on behalf of the partnership and it was on her own behalf and that Exhibit A-3 would not be binding on them. There is some force in this contention. Though Exhibit A-3 was admittedly executed in India by the appellant, the respondent and the other partner Shanmugham Chettiar had not joined in the execution of Exhibit A-3. Nor does Exhibit A-3 show that the appellant was executing Exhibit A-3 as managing partner or that she was authorised by the partners to execute Exhibit A-3. On the other hand, she described herself in Exhibit A-3 as Ravana Mana Vena Vellachi Achi otherwise known as R.M.V. Vellachi Achi or R.M.V. Vellachi Achi, (wife of Ramanathan Chettiar) of Kottaiyur. She described the business in Exhibit A-3 in the following terms:
…business of money-lender now carried on by me in the Colony of Singapore and the Federation of Malaya and elsewhere under the style of Ravana Mana Vena Vellachi Achi and of R.M.V. Vellachi Achi or R.M.V. Vellachi Achi at No. 47, Market Street, Singapore….
The appellant has treated this business as her own business in Exhibit A-3. It is, therefore, doubtful whether Exhibit A-3 was executed by the appellant on behalf of the partnership and it would, therefore, follow that the suits filed by the Power of Attorney Agent, Manickam or his son, Raghavan who was substituted in the place of Manickam by Exhibit *A-9 could not be deemed to have been filed on behalf of the partnership.
18. There is no indication in Exhibits A-4 to A-8 that the suits were filed on behalf of the partnership either by Manickam or Raghavan as the Power of Attorney Agents of the partnership. We are of the view that Exhibit A-3 executed by the appellant in favour of Manickam does not bind the respondent and the suits filed in pursuance of Exhibit A-3 against the local residents of Singapore were not on behalf of the partnership and, therefore, the respondent cannot be said to be a party in these proceedings subjecting himself to the jurisdiction of Singapore Courts.
19. Even assuming that Exhibit A-3 was executed on behalf of the firm and the suits were filed on behalf of the partnership, we do not think that the respondent submitted to the jurisdiction of the Singapore Courts as an individual. It was the firm which submitted to the jurisdiction of the Singapore Courts by filing suits and not the individuals constituting the partnership. If any action was taken in the foreign Courts, by or against the firm which submitted to its jurisdiction, such an action will give jurisdiction against the firm, in subsequent proceedings. But the suit No. 598 of 1966 instituted in the Singapore High Court cannot be deemed to be a suit against the firm. It was a suit by the appellant in her individual capacity against the firm respondent and two others for the recovery of moneys alleged to have been due from them. This suit was filed admittedly after the dissolution of partnership.
20. This point has been made clear by the decision of this Court in Guritswami v. Mohamad Khan Sahib (1932) 63 M.L.J. 761. The appeal in that case was heard by a Division Bench consisting of Venkatasubba Rao and Reilly, JJ. In that appeal, a question was raised as to the effect of an ex parte judgment passed by a foreign Court against an absent foreigner. The facts of that appeal are briefly these:
21. The appellants therein were subjects of the Mysore State and they filed a suit in the District Court of Bangalore against three defendants. The suit was based upon promissory note alleged to have been executed by the defendants therein and also upon a contract, which they were stated to have entered into. The third defendant in that suit who was the respondent in the appeal was a British subject and was residing at the time of the suit in the District of Coimbatore where he was served with the summons in the suit. He did not appear, and a judgment was passed by the Bangalore Court against him ex parte. The appellants sought to execute the decree passed by the District Court of Bangalore (a foreign decree) in the District Court of Coimbatore which was in British India. But the trial Judge refused their application under Section 13, Civil Procedure Code, holding that it was passed without jurisdiction. On appeal, to this Court it was contended by the learned Counsel for the appellants Mr. B. Somayya, as he then was, that the three defendants were a firm of partners carrying on business within the State of Mysore, that the partnership was subsisting on the date of the action, that the suit related to certain dealings with that firm and that, therefore, the third defendant, though he was living at Goimbatore, in British India, must be deemed to have submitted to the jurisdiction of the Bangalore Court. After a discussion of the case-law on the subject, the contention of the learned Counsel for the appellants was negatived and Venkatasubba Rao, J., on behalf of the Bench observed that it was settled law that a British Indian Court will not recognise the judgment of a foreign Court passed in an action in personam against a British subject, not resident in that country at the date of the action, who had neither appeared in the suit nor submitted to the jurisdiction of the foreign Court, and the mere fact that the British subject has entered into a partnership in the foreign country and that the suit related to a transaction entered into in the course of the business of that partnership will not lead to the inference that he was agreed to be bound by the decision of the foreign Court.
22. In this case, we have already observed that the respondent never lived in Singapore at any time, nor did he appear as a plaintiff or a defendant in any action, that at the time of the aforesaid suit, No. 598 of 1966 he was living in India and that he never submitted to the jurisdiction of the Singapore Court. We are, therefore, of the view, in the circumstances of this case, that the respondent never submitted to the jurisdiction of the foreign Court and therefore, the decree passed by the foreign Court against the respondent must be deemed to have been passed by a Court having no jurisdiction.
23. The next point that arises for consideration is whether the ex parte decree passed by the Singapore High Court in consequence of default of appearance by the respondent without trial can be deemed to be a judgment on merits. Under Section 13 (b), Civil Procedure Code, a foreign judgment cannot be conclusive and binding on the parties where such judgment has not been given on the merits of the case.
24. What happened in this case was this: The suit against the respondent was filed in the Singapore High Court on the affidavit filed by the plaintiff’s attorney for service of summons on the respondent in India where the respondent was residing. The High Court of Singapore issued notice on 2nd June, 1966, to the respondent to be served in India in lieu of service in Singapore–aide Exhibit A-10. It appears that notice was served on the respondent on 4th July, 1966. The respondent did not appear in the suit. On 29th July, 1966, the Deputy Registrar of the High Court in Singapore, issued a certificate of non-appearance of the respondent in the suit. On the same day, on hearing the solicitor for the appellant, it was ordered that the appellant was at liberty to sign final judgment against the respondent for the suit claim. On 30th July, 1966, the final judgment Was passed against the respondent decreeing the suit as prayed for. It is, therefore, clear from the records that no evidence was taken in proof of the claim by the appellant and the decree was not passed on merits, but it was passed ex parte solely due to default of appearance. The learned Subordinate Judge found that Exhibit A-17 was not a judgment on merits, but it was passed on default of appearance of the respondent.
25. It is clear from Section 13(b), Civil Procedure Code, that the foreign judgment will be conclusive only if there was an adjudication between the same parties on the merits of the case. In other words, if the foreign judgment is not based upon the merits, whatever the procedure might be in the foreign country in passing judgment, those judgments will not be conclusive. It is, therefore, open to the party against whom such foreign decrees are sought to be executed under Section 44-A, Civil Procedure Code, to resist the execution on the ground that such foreign decrees are not conclusive as they are not passed on merits.
26. A Full Bench of this Court in Mahomed Kassim and Co. v. Seeni Fakir Bin Ahmed (1927) I.L.R. 50 Mad. 261 : 52 M.L.J. 240, discussed the scope of Section 13(A), Civil Procedure Code, on a reference made to it by the referring Judges, to answer the question: “Does a suit lie in this country on a foreign judgment given on default of appearance of the defendant on the plaint allegations without any trial or evidence?”. In that case, the suit was brought on a foreign judgment, namely, the judgment of the Supreme Court of Penang. At the hearing of that suit, the defendants did not appear in Court to contest it, though the suit summonses had been properly served on the defendant in accordance with the rules obtaining in that Court. According to the rules of procedure in that Court, where the defendant did not appear after proper service of summons, judgment would be given without trial and without taking any evidence and solely on the ground of default of appearance of the defendant.
27. On the facts mentioned above, Courts Trotter, C.J., gave his opinion as follows:
It was urged – and very likely correctly urged – that the English Law was different. The answer to that is, we are bound by the statute on which the decision in Keymer’s case was based. That statutory provision is Section 13(b) of the Code of Civil Procedure under which an exception to the conclusiveness of a foreign judgment in a Britjsh Indian Court is where it has not been given on the merits of the case. As I understand Mr. Alladi Krishnaswami Ayyar’s argument, he says that it is not like the case of the defendant’s defence being struck out for not answering interrogatories or being out of time or anything of the kind; for that may be held not to be a defence on the merits because ex hypothesi the position is the defendant was precluded from going into the alleged merits which he had set up and he says it is quite different where the defendant does not appear at all because that is a clear intimation by him that he admits the validity of the plaintiff’s claim and that it is just as good as if the plaintiff has actually proved it by evidence. I think the decision of their Lordships of the Frivy Council impliedly excludes any such distinction and I regret to say that I cannot agree with the attempt made by two learned Judges of this Court to draw this distinction in Janoo Hassan v. Mahomed Ohuthu (1954) I.L.R. 47 Mad. 877 : 47 M.L.J. 356, and I think that the case must be regarded as no longer law.
Krishnan and Curgenven, JJ., the other two Judges constituting the Full Bench agreed with the opinion expressed by Courts Trotter, C.J.
28. The law of Civil Procedure governing the institution of suits, service of summons upon the defendant, the liberty to the plaintiff to apply for a decree against the defendant in case of the defendant’s default of appearance, in the Supreme Court of Penang with Singapore, are all similar and identical and are on the same pattern as the procedural laws in England, i.e., “The Rules of the Supreme Court”. The Full Bench decision of this Court referred to above in Mohamed Kassim and Co. v. Seeni Pakir Bin Ahmed (1927) I.L.R. 50 Mad. 261 : M.L.J. 240, which dealt with the enforceability of a judgment obtained in the Supreme Court of Penang has been followed in almost all the High Courts. This decision was rendered about 45 years back and had been uniformly followed by this Court (Vide: the Bench decision of Jagadesan, J. and Kailasam, J. in Sivagaminatha v. Nataraja . It is unnecessary to refer to all the cases and it is sufficient to refer to the latest Bench decision of this Court reported in Mohammad Sheriff and Co. v. Abdul Jubbar I.L.R. (1966) Mad. 18, in which a Bench of this Court had to deal with a similar problem arising out of a foreign judgment rendered by the Supreme Court of Singapore on default of appearance of the defendant. Veeraswami, J. (as he then was), delivering the judgment on behalf of the Bench, after referring to the relevant decisions, has followed and applied the principle enunciated by the Full Bench. The learned Judge pointed out that the decree that followed as a matter of course solely on account of the default of the defendant’s appearance could not be a judgment on merits, as no evidence was adduced and there was no judicial consideration of the tenability or justness of the claim. In view of this recent pronouncement of the Bench of this Court which is binding upon us, the matter does not require further elaboration. It is true that under Section 44-A, Sub-clause (3), the burden is upon the defendant who resists execution, to establish to the satisfaction of the Court which is called upon to execute the decree that the foreign decree suffers under any one of the infirmities covered by any of the exceptions specified in Clause (a) to (f) of Section 13, Civil Procedure Code. We may refer to the Bench decision of the Calcutta High Court in Abdul Rahim v. Mohamed Din A.I.R. 1943 Cal. 42. In the instant case, the respondent has discharged his burden by placing ample materials that the foreign judgment cannot be executed because the High Court of Singapore was not a “Court of competent jurisdiction” within the meaning of Section 13(a) and that the defendant has not voluntarily submitted to the decision of the Tribunal and also that the decree of the High Court of Singapore was not given on the merits of the case within the meaning of Section 13(b). It will be seen that it will be open to the judgment-debtor defendant to successfully resist execution under Section 44-A even if the decree given by the foreign Court is vitiated by any one of the infirmities under Section 13(a). The fact that out of the six exceptions there has been due compliance of some of the conditions and there has been no violation of some of the exceptions will not avail. The decree can be executed under Section 44-A only if all the conditions of Section 13(a) to (f) are satisfied. In other words, even if the Singapore High Court was a Court of competent jurisdiction either because of the residence of the defendant in Singapore or because of his voluntarily submitting to the jurisdiction of the foreign Court, the decree cannot be executed if, under Section 13(b) the decree had not been given on the merits of the case. The foreign decree can be executed under Section 44-A only if all the conditions are concurrently satisfied. For all these reasons, we agree with the decision of the learned Subordinate Judge. In the result the appeal fails and the same is accordingly dismissed with costs.
