HIGH COURT OF KERALA
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(1.) THE 1st defendant in O. S. No. 64 of 1955 of the court of the Subordinate Judge of Vaikom is the appellant before us. THE suit was by the 1st respondent for money due from the 1st defendant and his half-brother. THE half-brother was the 2nd defendant in the court below, and is the 2nd respondent in this court.
(2.) THE suit was based on a foreign judgment obtained against the defendants and in the alternative on the promissory note executed by them in connection with an overdraft arrangement with the plaintiff. THE foreign judgment was rendered by the Sub Court of Madurai in O. S. No. 29 of 1949 on 24-3-1949. At the relevant time the appellant was a Travancorian resident in the Indian State of Travancore. It is not contended that he submitted to the jurisdiction of the sub Court of Madurai.
The principle behind the enforcement of foreign judgments has not been better stated than by Parke B. in Williams v. Jones (1845-13 M. & W. 628 ). "where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained. It is in this way that the judgments of foreign and colonial courts are supported and enforced. " As pointed out in 1954 K. L. T. 138 a foreign court in actions in personam can be considered as a court of competent jurisdiction only under specified circumstances. The judgment summarised those circumstances - in the words of Dicey - as follows: "first Case: Where at the time of the commencement of the action the defendant was resident or present in such country, so as to have the benefit, and be under the protection, of the laws thereof. "second Case: (Semble) Where the defendant is, at the time of the judgment in the action, a subject or citizen of such country. "third Case: Where the party objecting to the jurisdiction of the courts of such country has, by his own conduct, submitted to such jurisdiction, i. e. , has precluded himself from objecting thereto: (a) by appearing as plaintiff in the action or counter-claiming; or (b) by voluntarily appearing as defendant in such action; or (c) by having expressly or impliedly contracted to submit to the jurisdiction of such courts. "
None of the circumstances obtains in this case. And we must hold that the decree of the Sub Court of Madurai in O. S. No. 29 of 1949 is a nullity for the purposes of private international law, and that a suit based on the judgment in that case cannot be sustained.
(3.) THE alternative foundation for the suit, as already stated, is the promissory note executed by the defendants in favour of the plaintiff on 13-2-194
The suit was instituted only on 12-2-1952. This, however, was sufficient as Art. 105 of the Travancore Limitation Act, 1100, provided a period of six years for a suit for a money due on a promissory note from the date of the note concerned. 6. The appellant had a case that he did not execute the promissory note, and that it was brought into existence by the plaintiff in collusion with the 2nd defendant. Issue No. 1 "whether the plaint pronote was executed by 1st defendant? Was it brought into existence in collusion with the 2nd defendant by the plaintiff bank? - was framed as a result of this contention.;
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