Judgment :- 1. This appeal is by the first defendant and is directed against an order passed in execution of the decree in O.S. 110 of 1960 on the file of the Sub Court, Kottayam. The 1st defendant filed E A. 812 of 1967 for relief under Act 31 of 1958 on the ground that he is an agriculturist as defined therein. The claim was overruled by the learned judge on two grounds. The first is that the debt under the decree will not attract Act 31 of 1958. The second ground is that on the date of Act 31 of 1958 the first defendant was not a citizen of India and therefore he is not entitled to claim the benefit of Act 31 of 1958. 2. At this stage it is necessary to state some facts. The first defendant as well as the plaintiff were both residents in Ceylon. On 19 1957 the first defendant and his wife who is the second defendant had executed a promissory note to the plaintiff for a sum of Rs, 13,765/-. A suit was instituted by the plaintiff against defendants 1 and 2 in the District Court of Colombo for recovery of the amount due on the promissory note and a consent decree dated 25 31959 was passed in favour of the plaintiff. The decree allowed the defendants to pay the decree amount in instalments provided they furnished security for the same. The condition was not complied with and the plaintiff was taking out execution against defendants 1 and 2 in the Colombo Court. The defendants in the meanwhile left Ceylon and came to Kottayam, O.S. 110 of 1960 was filed by the plaintiff in the Sub Court, Kottayam based on the judgment of the Colombo Court. The suit was decreed on 28 81961. The first defendant on the trial side did not seek any relief under Act 31 of 1958. It was only in execution that he claimed the relief which was disallowed by the order under appeal. 3. We agree with the lower court that the debt covered by the decree which is now executed is not payable under the provisions of Act 31 of 1958. The suit is to enforce a foreign judgment. A decree passed by the Ceylon court is not executable in any of the courts in this State under S.44A of the CPC. 3. We agree with the lower court that the debt covered by the decree which is now executed is not payable under the provisions of Act 31 of 1958. The suit is to enforce a foreign judgment. A decree passed by the Ceylon court is not executable in any of the courts in this State under S.44A of the CPC. for want of reciprocal arrangements. The foreign judgment is dated 25-3-1959 and the liability created thereunder arose only after the date of Act 31 of 1958. 4. When a judgment has been obtained on a debt in a foreign court, the creditor has two remedies open to him. One is to file a suit on the original cause of action and the other is to enforce the liability created by the foreign judgment. There is no merger in such cases as the foreign judgment is not binding on the domestic court and the principle of res judicata cannot apply. S.2 (6) of the CPC. defines "foreign judgment" as the judgment of a foreign court and S.2 (5) of the CPC. defines "foreign court" as meaning a court situate outside India and not established or continued by the authority of the Central Government. The judgment of the Colombo court is a foreign judgment within the meaning of S.2 (6) of the CPC. The nature of an obligation created by a foreign judgment is stated thus by Cheshire in his book on Private International Law at page 629: "It is unnecessary, however, to consider the theory of comity further, for it has been supplanted by a far more defensible principle which has been called 'the doctrine of obligation'. This doctrine, which was laid down in 1842, is that where a foreign court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, the liability to pay that sum becomes a legal obligation which may be enforced in this country by an action of debt. Once the judgment is proved the burden lies upon the defendant to show why he should not perform the obligation". In Godard v. Gray (1870) LR. 6 QB.139 at pp. 148 & 149 Blackburn J. observed: "It is not an admitted principle of the law of nations that a state is bound to enforce within its territories the judgment of a foreign tribunal. In Godard v. Gray (1870) LR. 6 QB.139 at pp. 148 & 149 Blackburn J. observed: "It is not an admitted principle of the law of nations that a state is bound to enforce within its territories the judgment of a foreign tribunal. Several of the continental nations (including France) do not enforce the judgments of other countries, unless where there are reciprocal treaties to that effect. But in England and in those states which are governed by the common law. such judgments are enforced not by virtue of any treaty nor by virtue of any statute, but upon a principle very well stated by Parke, B., in Williams v. Jones :where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action on debt to enforce the judgment may be maintained. It is in this way that the judgment of foreign and colonial courts are supported and enforced'. And taking this as the principle, it seems to follow that anything which negatives the existence of that legal obligation, or excuses the defendant from the performance of it, must form a good defence to the action. It must be open, therefore, to the defendant to show that the court which pronounced the judgment had not jurisdiction to pronounce it, either because they exceeded the jurisdiction given to them by the foreign law, or because he, the defendant, was not subject to that jurisdiction; and so far the foreign judgment must be examinable". It must be open, therefore, to the defendant to show that the court which pronounced the judgment had not jurisdiction to pronounce it, either because they exceeded the jurisdiction given to them by the foreign law, or because he, the defendant, was not subject to that jurisdiction; and so far the foreign judgment must be examinable". The same learned judge in Schibsby v. Westenholz (1870) L. R.6 Q. B. 155 observed: "It is unnecessary to repeat again what we have already said in Godard v. Gray, We think that, for the reasons there given the true principle on which the judgments of foreign tribunals are enforced in England is that stated by Parke, B., in Russell v. Smyth and again repeated by him in Willams v. Jones, that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation en the defendant to pay the sum for which judgment is given, which the courts in this country are bound to enforce; and consequently that anything which negatives that duty, or forms a legal excuse for not performing it, is a defence to the action." The above principles have been followed by the Indian courts. We shall cite the decisions in Nallatambi Mudaliar v. Ponnuswami Pillai ILR. 2 Madras 400 and Nalla Karuppa. Settiar v. Mahomed Ibraham Saheb ILR. 20 Mad. 112. 5. Sir Charles A. Turner, Chief Justice, and Muttusami Ayyar, J., observed in Nallatambi Mudaliar v. Ponnusami Pillai ILR. 2 Madras 400: "The principles on which foreign judgments are enforced in English Courts as stated by Parke B. in Russell v. Smyth and repeated by him in Williams v. Jones are declared by Blackburn, J., in Schibsby v.Westenholz as follows: 'the judgment of a court of competent jurisdiction over the defendant imposes on him a duty or obligation to pay the sum for which the judgment is given which the courts in this country are bound to enforce,' but 'anything which negatives that duty or forms a legal excuse for not performing it is a defence to the action'. The same principles have been adopted by the courts of British India, and have been substantially recognised by the Legislature. It will be noticed that it is an indispensable condition that the foreign court should have jurisdiction over the defendant". In Nalla Karuppa Settiar v. Mahomed Ibraham Saheb ILR. The same principles have been adopted by the courts of British India, and have been substantially recognised by the Legislature. It will be noticed that it is an indispensable condition that the foreign court should have jurisdiction over the defendant". In Nalla Karuppa Settiar v. Mahomed Ibraham Saheb ILR. 20 Madras 112 another Division Bench of the Madras High Court pointed out: "It is conceded that for the present purpose the Kandy Court must be considered to be a foreign court. The courts of British India will be guided in this matter by the same principles as are adopted by the courts of England. The true principle on which the judgments of foreign courts are enforced in England is that the judgment of a court of competent jurisdiction over the defendant imposes a duty, or obligation, on the defendant to pay the sum decreed which the English Court is bound to enforce, and consequently that anything which negatives that duty, or forms a legal excuse for not performing it, is a defence to the action." The above principles show that a foreign judgment creates a new right in favour of the creditor and a new obligation on the debtor imposed by the foreign court. There was no contention before us that a suit instituted in the Kottayam court was based upon the contract and not upon the foreign judgment. 6. It was submitted for the appellant that since the debt created by the foreign judgment is based on a liability incurred before Act 31 of 1958 it will be attracted. We cannot agree. There is no merger of the debt in the foreign decree. Cheshire in his book on Private International Law observed at pages 630 and 631: it is a rule of domestic English law that a plaintiff who has obtained judgment in England against a defendant is barred from suing again on the original cause of action. The original cause of action is merged in the judgment transit in rem judicatam and it would be vexatious to subject the defendant to another action for the purpose of obtaining the same result. It has been held, however, in a series of authorities, that this is not so in the case of foreign judgments. The original cause of action is merged in the judgment transit in rem judicatam and it would be vexatious to subject the defendant to another action for the purpose of obtaining the same result. It has been held, however, in a series of authorities, that this is not so in the case of foreign judgments. Such a judgment does not, in the view of English law, occasion a merger of the original cause of action, and therefore the plaintiff has his option, either to resort to the original ground of action or to sue on the judgment recovered, provided, of course, that the judgment has not been satisfied. There is little justification for thus differentiating between English and foreign judgments. The reasons upon which the doctrine is founded are obscure and evasive, and the principal consideration that would appear to have influenced the courts, namely, that a foreign judgment is only evidence of the debt due from the defendant, was forcibly demolished by the majority of the court in the later case of Godard v. Gray. The most plausible justification for non-merger, perhaps, is that a plaintiff suing in England on a foreign as distinct from a domestic judgment possesses no higher remedy than he possessed before the foreign action. The effect of judgment in English proceedings is that 'the cause of action is changed into matter of record, which is of a higher nature, and the inferior remedy is merged in the higher'; but the view which English law takes of a foreign judgment is that it creates merely a simple contract debt between the parties. The doctrine of non-merger has, however, been too often repeated by judges to justify any prospect of its abandonment". 7. We therefore agree with the view taken by the lower court that the debt arose subsequent to Act 31 of 1958 in which case there is no scope for the first defendant claiming any relief under the said Act. In this view, it is unnecessary to consider the various other interesting questions raised in this case. We therefore in confirmation of the decree and judgment of the Court below dismiss the appeal. No costs.