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10. But the principal point which has been taken in this case is that the decision is not on the merits. The learned Counsel for the plaintiff has quoted a number of English cases to show that where the decision is on the merits, the Court cannot go into the question, but it is unnecessary to refer to these cases in view of Section 13 of the Civil Procedure Code, inasmuch as if the foreign judgment is given on the merits it is conclusive. The only question, therefore, in this case is whether the judgment of the Basra Court is given on the merits. What actually happened in this case was that the defendants, as I have already said, had been served with the summons, and the correspondence show that they had notice of this suit. It also appears that they had given a power of attorney to one Menasse, a pleader, in 1922, and as far as appears in this case, that power of attorney was still in force because, although Mr. Gillespie examined as a witness says that he cancelled all these powers of attorney, it seems that Menasse was still in possession of the power of attorney which was filed in the record of this case, and a certified copy is before this Court. Menasse produced the power of attorney in the Court when the case came on for hearing. Also from the correspondence of Messrs. Turner, Morrison & Co., which has been filed in this case, and from the telegrams which have been put in, it is perfectly clear that the pleader Menasse had instructions from Turner, Morrison & Co., Bombay, to appear on their behalf and to act under the instructions of Messrs. Andrew, Weir & Co. who were in Basra and to apply for an adjournment. The adjournment was refused. The Court then proceeded to go into the papers in the former proceedings and to pass a decree against the defendants. It is only necessary in this case to refer to very few cases. The learned Counsel for the defendants has relied on the case of Keymer v. Visvanatham Reddi (1916) I.L.R. 40 Mad. 112 : S.C. 19 Bom. L.R. 206, P.C.. In that case the plaintiff sued the defendant on a judgment obtained in the Court of King's Bench in London. The defence had been struck out because the defendants had refused to answer interrogatories. It was held by the Privy Council that the decision was not on the merits of the case within the meaning of Section 13 (b) of the Code of Civil Procedure. The principle on which that case was decided will be found at the end of the judgment where it is stated that Section 13, Sub-section (b) refers to those cases where, for one reason or another, the controversy raised in the action not in fact been the subject of direct adjudication by the Court, The same question arose in G.S.C. Cole v. C.A. Harper (1919) I.L.R. 41 All. 521, in which the case I have just referred to, Keymer v. Visvanatham Reddi, was distinguised. In that case the defendant was sued for personal injuries caused in a motor car accident. The writ of summons was accepted by a solicitor, and an appearance was entered by him on behalf of the defendant. But before the hearing the defendant was recalled to India, but the case proceeded in his absence and resulted in a judgment for the plaintiff. There it was held that in the case of Keymer v. Visvanatham Eeddi (p. 523) "the judgment follows as of a penalty upon the defendant not complying with the order of the court and the facts and circumstances of the case were never gone into at all. In the present case the evidence of the plaintiff herself, or some other evidence, had to be given before the jury could find a verdict in her favour," and that the judgment was, therefore, one which was given on the merits. The present case, with which we are now concerned, is practically on all fours with that of Janoo Hassan v. Mahamad Ohuthu (1924) I.L.R. 47 Mad. 877, where the notice of suit to the defendant in the Court in Ceylon was served on a person who was conducting business on the defendant's behalf in Ceylon, and had been given by him a power of attorney under which the agent was empowered to sue in the Courts of Ceylon and to appear in any Court of Justice in Ceylon either as plaintiff or defendant. The agent did not put in any appearance at all in the suit in the Ceylon Court, and the case was allowed to proceed ex parte against the defendant. It was held that the defendant must be deemed to have submitted himself to the jurisdiction of the foreign Court by reason of the execution of the power of attorney. It was further held that ordinarily a judgment delivered ex parte is deemed to be on the merits, and it is only when a defence has been raised and for some reason or another has not been adjudicated upon that the decision can be said to be not upon the merits, and that the ex parte judgment in that case must be deemed to be one passed on the merits as the defendant did not at all appear in the case. This is practically on all fours with the present case. In the present case Turner, Morrison & Co. were served while they were actually residents in Basra. Although at the time when the suit came on for hearing Mr. Gillespie was not resident in Basra,, the pleader Menasse, who held a power of attorney from the firm and was retained to appear in the case, was in Basra. He represented the defendants in fact. That he did not receive any instructions to defend the case on the merits does not, in my opinion, prevent the decision from being one on the merits. Applying the test that it is only when a defence has been raised reason or another has not been adjudicated upon that the decisions can be said to be not on the merits, it is clear that the present case, where no defence was raised, but merely an adjournment was asked for and the judgment proceeded on the evidence of the plaintiff and the papers in the former suit, cannot be said to be a case in which the judgment is not one on the merits. The assertion in the written statement at the beginning that Menasse if had no authority to represent the defendants is entirely incorrect.