Decided on July 18,1901



Maclean, C J - (1.) The plaintiff in this suit is the legal personal representative of one Herman Robinson, and the defendants are father and son, viz., Syed Moazzim Hossein Khan Bahadur and Syed Motaher Hossein, Barrister-at-Law. I shall refer to them as the father and the son. The suit is on a foreign judgment, viz., on an ex parte judgment of the Queen's Bench Division of the High Court of Justice of England for an amount equivalent to Rs. 6,551 and odd, a judgment recovered against both the defendants. In his defence, the father pleaded that he was not served with the writ or any copy thereof in the English action, that he had never been within the jurisdiction of the English Court, and the judgment was made without jurisdiction and was inoperative as against him. His son's defence was substantially the same, though, he admitted he had been in England for upwards of two years, but had left some time before the date of the institution of the suit. Both defendants pleaded that, on the merits, the judgment in the English Court ought not to have been passed, and that it was a fraudulent action. Upon this latter point, I may remark at once that, even if it were competent for the defendants to go into the merits of the suit on which the English judgment was based, which I do not think they can properly do, the son has not tendered himself as a witness in this case, nor put in any evidence, whilst the father does not go beyond saying that he had had no dealings with Herman Robinson and that he never undertook to pay the boarding and lodging expenses of his son with the latter. The claim in the English Court was apparently for board, lodging and tuition. Neither of the defendants appeared in the English action or submitted to the jurisdiction of that Court.
(2.) Upon the question of whether or not the defendants were duly served and had notice of the English action, the son has not ventured to go into the box and challenge the statement as to service, told by the witness Nibaran Chundra Chattopadhya, whilst the father only ventured to say that he does not recollect that any writ from England was served upon him. On the evidence, it must be taken that both defendants were duly served.
(3.) Assuming there was jurisdiction in the English Court, and that it was properly exercised, it has not been disputed that as a general principle, the Court, in which the suit on the foreign judgment is brought, cannot properly go into the merits of the action, which resulted in the foreign judgment sued upon, but the appellants contend that, by virtue of the last words of explanation 6 of Section 13 of the Code of Civil Procedure, which explanation runs as follows: "Where a foreign judgment is relied on, the production of the judgment duly authenticated is presumptive evidence that the Court, which made it, had competent jurisdiction, unless the contrary appear on the record, but such presumption may be removed by proving the want of jurisdiction," they are entitled to rebut the presumption by proving the want of jurisdiction of the English Court. It is said for the appellants that the jurisdiction of the English Court was based entirely upon the view that the case fell within Order 11 of 1883, Rule I, sub-section (e), and that the defendants say that they are entitled to show that that was not so, and consequently that there was a want of jurisdiction in the English Court. I think they are entitled to show this. The father says he has substantiated this by his evidence that he never wrote to Herman Robinson and had no dealings with him, and in this suit that evidence is uncontradicted and may, I think, be relied upon. This argument, however, does not assist the son, for he has put in no evidence.;

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