Bombay High Court
Harchand Panaji vs Gulabchand Kanji on 20 July, 1914
Equivalent citations: (1914)16BOMLR620
JUDGMENT Basil Scott, Kt., C.J.
1. The lower Courts have declined to execute a decree of a Baroda Court against the respondent's father Kanji Kapura which had been transferred for execution against his estate to the Court of the Second Class Subordinate Judge of Surat.
2. The learned Judge of the lower appellate Court states that it was conceded that on the principles of International law as laid down in Gurdyal Singh v. Raja of Faridkot (1894) I. L, R. 22 Cal. 222. the decree would have been a nullity had the defendant not appeared and defended the suit in the Baroda Court, and that it was argued before him that the defendant had voluntarily submitted to the jurisdiction by employing a pleader to defend the suits. As to this the learned Judge of the lower appellate Court says that the defendant protested against the right of the Baroda Court to entertain the suit at the earliest opportunity and did not make any other defence.
3. We have referred to the statement of the pleadings and issues in the Baroda Court and find that the statement of the lower appellate Court is incorrect.
4. The defendant pleaded first that the plaintiff had no right to sue as the sum claimed was vested in him by inheritance as the brother of the plaintiff's father's deceased brother's widow. Secondly, that, if not, the suit was defective for want of parties as the other brothers of the plaintiff's lather were not joined. Thirdly, that the plaintiff's suit could not be entertained as the money dealings relied on took place outside the jurisdiction of the Court. Fourthly, that the plaintiff's suit would not lie in that Court as the defendant had no property and did not reside or carry on business in Baroda territory. Fifthly that the suit was time-barred.
5. Upon this defence four issues were raised :
1. Is the suit defective for want of parties';
2. Is the suit barred by time?
3. Does the suit lie in this Court ?
4. What relief should be granted to the plaintiff?
All the issues were decided in the plaintiff's favour after evidence had been adduced by both sides.
6. The case appears to us to be clearly one of voluntary sub-mission to the jurisdiction, the defendant taking his chance of getting a decree in his favour: see Boissiere & Co. v. Brock-ner & Co. (1889) 6 T.L.R. 85, and Voinet v. Barrett (1885) 55 L.J.Q.B. 39. The case is a stronger one in favour of the appellant than that of Parry & Co. v. Appasami Pillai (1880) I.L.R. 2Mad. 407, relied on in the lower Courts, for there was no preliminary decision of the question of jurisdiction on the protest of the defendant and no circumstance of pressure such as the Madras Court thought existed in Parry & Co.s case.
7. We set aside the decree of the lower appellate Court and return the Darkhast for execution of the Baroda Court's decree in the Court of the Second Class Subordinate Judge of Surat.
8. The respondent must pay the costs of his opposition to the Darkhast up to date.