LexM/S. INTERNATIONAL WOOLEN MILLS versus M/S. STANDARD WOOL (U.K.) LTD.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
MIS. INTERNATIONAL WOOLEN MILLS
v.
MIS. STANDARD WOOL (U.K.) LTD.
APRIL 25, 2001
B
[V.N. KHARE AND S.N. VARIAVA, JJ.]
Code of Civil Procedure, 1908:
Section 11 explanation IV-Canstructive res-.iudicata-Second
C application filed before any decision on the first application-Held, second
application cannot be barred by principles of res-judicata or constructive
res-judicata.
Sections 13(b) and 44-A-Decree-Foreign judgment and decree-
Enforcement of-Suit for recovery of price of goods supplied-Ex-parte
D judgement and decree passed-'-Does not indicate whether documents were
looked into or merits considered-Held, such decree not on merits and
cannot be enforced in India-Evidence Act, 1872-Section 114, illustration
(e)-Presumption-Sections 101 and 102-Burden of proof
Documents and particulars endorsed with statement of c/aim-Ex1>arte
E decree based thereon-Held, such decree not on merits-Court to consider
case on merits by looking into evidence led by plaintiff and documents
proved before it-Also such a decree cannot be said to be the same as if
defendant appeared and contested the suit and therefore on merits.
F
Appellant placed orders with Res11ondent for certain goods. On
receiving the goods appellant found them to be of inferior quality and refused
payment. Aggrieved, Respondent filed a suit is the Central London County
Court in United Kingdom. An exparte decree was passed. Respondent fded an
execution apulication in the Court of Civil Judge (Senior Division) Ludhiana.
Appellant filed an application for dismissal of execution application as it was
G filed without following the procedure 1>rescribed in Sections 38, 39 and 40 of
the Code of Civil Procedure, 1908. Respondent contended that the execution
was under Section 44A of the Code. Whilst the Application for dismissal was
still pending, the appellant filed an:>ther application stating that the decree
was not on merits and as per the provisions of Section 44A read with Section
H 13 (b) of the Civil Procedure Code, the Court had to refuse to execute the
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INTERN. WOOLEN MILLS v. STANDARD WOOL (U.K.) LTD.
167
decree. Both the ap1llications were heard together and dismissed. On revision A
High Court found that the decree was not on merits but it still dismissed the
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revision on the ground that the second application was barred by the principles
.,.
of constructive res-judicata. Hence these cross appeals.
Disposing of the appeals, the Court
B
HELD: 1. Section 11 explanation IV of the Code of Civil Procedure
comes into play only if some decision has been finally given before the second
application was filed. In that event it could have been urged that all available
points should have been urged before that decision was given. In the instant
-<
case there was no final decision which 011crated as res-judicata. Second
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application stating that the decree was not on merits was filed before the c
decision on the first ap1Jlication filed for dismissal of execution application.
The appellant could have instead of filing a second a11plication, amended the
first application and taken these pleas in that application itself; then there
would be no bar of res-judicata or constructive res-judicata. (172-D-E-F]
Janki Vallabh v. Moolchand and Ors., AIR (1974) Rajasthan 168; D
Baijnath Prasad Sah v. Ramphal Sahni and Am:, AIR (1962) Patna 72; P.K.
Vijayan v. Kamalakshi Amma, AIR (1994) SC 2145 and Mohan/al Goenka v.
j
Benoy Krishna Mukherjee and Ors., (1953] SCR 377, referred to.
...
2.1. It cannot be said that any decree passed in absence of defendant is
a decree on merits as it would be the same as if defendant had appeared and E
contested the suit (179-E]
_.
Sir William Rattigan s Private International Law, (1895] pages 234-
235, relied on.
)
Ram Chand v. John Bartlett, Vol. Ill Indian Cases 523 and Chintamoni F
.)
Padhan and Ors. v. Paika Sama/ and Ors., AIR (1956) Orissa 136, overruled.
Dicey's "Conflict of Laws" P. 411, referred to.
' ...
2.2. It cannot also be said that the decree was on merits as all documents
and particulars had been endorsed with the statement of claim. At the stage G
of issuance of summons the Court only forms, if it at all does, a prima-facie
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opinion. Thereafter, the Court has to consider the case on merits by looking
into evidence led and documents proved before it Then only the decree can be
. ....:--
said to be on merits. [179-F-G]
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