Amulya Chinmaye (Student) 05 August 2013

Res judicata and foreign decree

I am a law student. I have a query at hand related to my academics. Please help.

There is a contract between the parties for supply of certain goods from foreign land. The appellant ‘A’ claimed the goods from Mumbai and took them to Ludhiana. ‘A’ did not pay the price of the goods on the ground that after taking delivery it was found that goods were of inferior quality. The respondent ‘B’ sent a lawyers notice to ‘A’ which was replied.

Respondent filed a case in Central London Country Court in U.K. It claimed that appellant were served with summon in respect of suit in foreign country whereas appellant claims that he had not been served in that case. Thereafter an exparte decree was passed by Central London Country Court in favour of respondent where plaintiff was ordered to pay sum of US$50000 plus interest US$ 21700 plus the court cost.

Respondent filed an Execution application in the court of Civil Judge (Senior Division) Ludhiana. Upon receipt of summon in execution proceeding the appellant filed an application praying for dismissal of execution application in as it was filed without following procedure whereas respondent contented that the execution was under S.44-A of C.P.C. The appellant also filed another application stating that the decree was not on merit as per provision of S.44 (A) and S.13 (b) of C.P.C.

By two separate orders both the application were dismissed. The appellant filed Civil Revision against two orders. High Court found that decree was not on merits but it still dismissed the revision on the ground that the second application was barred by principle of constructive resjudicata.

The appellant filed an appeal against dismissal of their Revision and against that portion of impugned judgment which holds that decree was not on merit.

Is High Court right in holding that the second application was barred on principle of constructive resjudicata. Weather the above mentioned decree of Foreign Court could be executed in India. Argue the case.

Reply Follow

2 Replies

sree 9491505984 (Lawyer, Hyderabad) 07 August 2013

Hi,

It's a good query to argue.

Yes the HighCourt is true regarding the second app. barred by Constructive resjudicata. Because the Appleant 'A' should have pleaded in Central london country court. Unfortunately there he is blessed with Exparte decree. Even later 'A' should made an appeal against the order of Central london country court in the competent court. Instead 'A' pleaded in exection petition. Hence the constructive resjudicata. Have look on supreeme court sayings

" A sub-set of the doctrine of res judicata, emanating from Section 11 of the Code of Civil Procedure, the doctrine of constructive res judicata sets to naught any claims being raised in a subsequent proceeding where in an earlier proceeding such claim should / ought to have been raised and decided. A rule of prudence, thus, the doctrine seeks to bar determination and enforcement of claims which have not been raised at an appropriate juncture in judicial proceedings.

The Supreme Court explained the meaning and ambit of the doctrine of constructive res judicata as under;

31) Res-judicata and Code of Civil Procedure :- It is well known that the doctrine of res- judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in relation to civil suits. But apart from the codified law, the doctrine of res-judicata or the principle of the res-judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure and in many other situations also Principles not only of direct res-judicata but of constructive res-judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res-judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties. The Principle of res judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the Principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided

Coming to second part of your query, though the HighCourt found that the decree is not on merits, The exection court need not bother about it.