Sirdar Gurdyal Singh v. The Rajah of Faridkot

Every question in this module — recognition, enforcement, execution, s. 13 — has one overriding condition in front of it: the foreign court must have had jurisdiction in the international sense. It is not enough that the foreign court was competent under its own law. Sirdar Gurdyal Singh is the leading illustration of that condition, stated negatively: this is what happens when a court gives judgment against a man who was not there and did not submit.

It is also the case the Supreme Court later corrected, which makes it examinable twice over — once for the rule and once for the qualification.

The Rajah of Faridkot obtained two ex parte money judgments from a court at Faridkote against his former treasurer. The treasurer had left Faridkote five years before the suits and had never returned. He had not submitted to that court in any way.

The Rajah then sued on those judgments at Lahore, then part of British India, where the defendant was resident. The Lahore action was therefore an action on a foreign judgment.

The Privy Council held the action must fail. The Faridkote court "had no jurisdiction on any recognized principle of international law against a man who had left the territory and had not submitted to the jurisdiction of the court."

The Board's language, as later quoted by the Supreme Court, was absolute: "In a personam action, to which none of these causes of jurisdiction apply. a decree pronounced in absentem by a foreign court, to the jurisdiction of which the defendant has not in any way submitted himself, is by International Law an absolute nullity". (The passage is reproduced with the punctuation the course records.)

The Board itself added a qualification in the same breath: the judgment debtor "is under no obligation of any kind to obey and it must be regarded as a mere nullity by the courts of every nation except (when authorised by special local legislation) in the country of the forum by which it was pronounced".

Step one: separate the two jurisdictions. The question before the Lahore court was not whether the Faridkote court had power under Faridkote's own law. It was whether Faridkote's competence was one that another State's courts would recognise. The test is competence "according to the principles of private international law as understood" by the recognising forum.

Step two: apply the only two grounds there are. For a judgment in personam the recognised grounds are "(i) defendant's presence in the foreign country, or (ii) his voluntary submission to the jurisdiction of foreign court." Neither existed. The defendant had been gone five years, and an ex parte decree is by definition one where he did not appear.

Step three: name the consequence. With neither presence nor submission, the decree was pronounced in absentem, and by international law such a decree was an absolute nullity — a nullity as against the courts of other nations.

Step four — and this is where the exception lives. The Board excepted the country of the forum itself, where special local legislation authorises the exercise. That saves the rule from absurdity: a State may lawfully legislate to reach absent defendants, and its own courts will give effect to the result.

The correction. In Lalji Raja & Sons v. Hansraj Nathu Ram the Supreme Court built on that exception and held that "A decree passed by a foreign Court to whose jurisdiction a judgement debtor had not submitted is an absolute nullity only if the local legislatiure had not conferred jurisdiction on the domestic courts over the foreigners either generally, or under specified circumstances." Since s. 20(c) of the Code does confer jurisdiction where the cause of action arises in India, the language of absolute nullity "may not be apposite. It may be mere appropriate to say that the decree in question is not executable in Courts outside this country." (The passages carry the spellings the course records.)

It opens: "jurisdiction in the international sense"; the first condition of recognition at common law; and the maxim actor sequitur forum rei, the principle that an action in personam belongs presumptively in the forum of the defendant, which in Indian statute appears as s. 20 of the Code.

Always follow it with Lalji Raja, and state the two propositions that come out of the pair: a judgment given without personal jurisdiction is not void everywhere — it is good at home and unenforceable abroad; and the reach of a State's courts over absent defendants is a matter for that State's legislature, subject only to other States refusing to enforce the result. The better formulation is therefore not executable outside the country, not absolute nullity.

A trap worth flagging: Lalji Raja itself did not turn on this at all. A decree of the Bankura court in West Bengal was not a foreign decree under either the old or the new definition in s. 2(5) and s. 2(6) of the Code, so the Gurdyal Singh argument was misplaced. A foreign judgment must satisfy both limbs — situate outside India and not established or continued by the Central Government.

It does not decide: whether temporary presence suffices, which this course records as "not free from doubt" and discusses under Carrick v. Hancock; nor what counts as submission, for which go to S.A. Consortium v. Sun and Sand and Re Dulles' Settlements; nor whether nationality founds competence, on which Emmanual v. Symon records that there is no direct English authority and the accepted position is that nationality as such does not justify the foreign court's jurisdiction.