Judgment On or about 30th November, 1978 the plaintiff petitioner Tashglen Ltd. in an action filed by it against the judgment debtor firm Talapatra Brothers obtained a judgment for £ 18,125 plus interest of £ 1361 09 aggregating £ 19,486 09 and further interest, in the Queen's Bench Division of the High Court of Justice of England in the Coventry District Registry. 2. The plaintiff-decree holder has made two applications in this Court, one for execution of the said foreign judgment and the other inter alia for leave to execute the said judgment against the partners of the defendant judgment debtor firm. 3. By consent of parties both the applications are heard together. The tabular statement filed in the execution.Hpp1icltion is accompanied by a certified copy of the said' judgment issued in accordance with S.10 of the Foreign Judgment (Reciprocal Enforcement) Act 1930 and is accompanied by a certificate of !he District Registrar of the Coventry District Registry, Queen's Bench Division of the Supreme Court of Judicature of England certifying that the notice of issue of the writ of summons was duly served personally on the defendant at their place of business. namely, 34, Armenian Street, Calcutta and the defendant duly appeared in the said action on (he 14th August, 1978 It is also certified that the plaintiff obtained judgment against the defendant in the said court for £ 19.486.09 and £ 1,17968 for Costs and interest at the rate of 9 % per annum from the date of the said judgment until payment. There is also a certificate by the said District Registrar that the amount of the judgment and Courts remained wholly unsatisfied From the certified copy of the said judgment it appears that the said Judgment was obtained by the plaintiff from said Court under the provisions of Order 14 of the rules of the Supreme Court of England and that the pleadings in the said action consisted of the writ and the statement of claim and that no objection has been made to the jurisdiction of the Court. 4. There is no dispute that notice of the writ of summons was duly served on the defendant firm at 34 Armenian Select, Calcutta and the defendant entered appearance in the said action through M/s R A. C. Symes & Co., Solicitors. 4. There is no dispute that notice of the writ of summons was duly served on the defendant firm at 34 Armenian Select, Calcutta and the defendant entered appearance in the said action through M/s R A. C. Symes & Co., Solicitors. The defendant, however did not file any statement of defence in the said action and thereupon the plaintiff obtained the said judgment by way of summary judgment under the provisions Order 14, Rule 3 of the Rules of the Supreme Court of England. 5. Section 14 of the Code of Civil Procedure (hereinafter referred to as the Code) provides that upon production of any document purporting to be a certified copy of a foreign judgment the court shall presume that such judgment was pronounced by a court of competent jurisdiction unless the contrary appears on the record and such presumption may be displaced by proving want of jurisdiction Section 13 of the Cede provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except (a) where it has not been pronounced by a court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recogrise the Jaw of India in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud and (f) where it sustains a claim founded on a breach of any law in force in India. 6. These applications are hotly contested by the defendant and all the grounds which make a foreign judgment not conclusive under S.13 of the Code have been urged by Mr. Sankar Mitra, learned Counsel for the defendant. 7. The claim of the plaintiff against the defendant in the said action in the Queen's Bench Division of the Coventry District Registry was en account of breach of cont, not by the defendant. 8. Sankar Mitra, learned Counsel for the defendant. 7. The claim of the plaintiff against the defendant in the said action in the Queen's Bench Division of the Coventry District Registry was en account of breach of cont, not by the defendant. 8. The case of the plaintiff was that the plaintiff made an offer to the defendant for supply of certain goods by the defendant by placing an order dated 22nd July, 1977 on the defendant. Along with the said order the plaintiff sent by way of advance payment a Banker's cheque or draft for £ 15000 issue-d by National Westminster Bank Ltd. on United Bank of India. Calcutta payable to the defendant on account of full value of the goods ordered, to be shipped to and delivered at Chittagong. 9. Clause 7 of the said order provided that clearance of the said Banker' cheque or draft Was a receipt for payment received by the defendant and it also constituted acceptance of the said order by the defendant and all the terms and conditions mentioned therein It was also provided that if the defendant accepted the said order by receiving the said advance payment and if either the defendant or the plaintiff failed to comply with the terms and conditions contained in the said order then all actions or claims arising from such failure by either would be subject to U. K jurisdiction, all causes of action shall be deemed to have arisen under the laws of England and all proceedings will be in the Law Courts of England and both the defendant and the plaintiff have voluntarily consented to this and all other terms as binding without any qualification or reservation. 10 According to the plaintiff the defendant accepted and encashed the said Banker' cheque or draft and received payment of £ 15000 thereunder. Thus the defendant accepted the said order dated 22nd July, 1977 and the offer made therein and there was therefore a contract between the parties on the terms and conditions contained in the Said order. The defendant failed and neglected to supply any goods under the said contract and thereby committed breach thereof The plaintiff claimed in the said action agreed loss of profits and return of the said sum of £ 15000 in terms of clause 9 of the said order dated nod July 1977. 11. The defendant failed and neglected to supply any goods under the said contract and thereby committed breach thereof The plaintiff claimed in the said action agreed loss of profits and return of the said sum of £ 15000 in terms of clause 9 of the said order dated nod July 1977. 11. As already stated, the defendant did not file its statement of defence in the said action before the Queen’s Bench Division and did not defend the said action. Thus the case or defence of the defendant to the claim of the plaintiff was not disclosed before the said English Court. 12. The case or defence of the defendant as disclosed for the first time in its affidavit in opposition in this application affirmed by Manoranjan Banik on the 10th July, 1981 and around which practically the entire arguments and contentions of Mr. Sankar Mitra revolves, is that the said order dated 22nd July, 1977 was not received by the defendant. Even if the said order was received by the defendant the same was not accepted by the defendant and there was no contract between the plaintiff and the defendant in terms of the said order or otherwise. The said Bankers’ cheque or draft for £ 15000 issued by National Westminster Bank Ltd. on United Bank of India, Calcutta was accepted and payment of the amount thereof was received by the defendant not on account of the said order of the plaintiff but on account of an order for supply by the defendant of handloom lungies to one Desh Textile Mills of Narayanganj in Bangladesh. The defendant made part delivery of such lungies but could not deliver the balance quantity due to a ban imposed by the government and therefore the balance sum out of the said amount of £ 15000 has been kept in suspense by the defendant. 13. It may be noted that nothing has been disclosed or produced by the defendant to show that any amount has been kept in suspense by the defendant. 14 Dr. 13. It may be noted that nothing has been disclosed or produced by the defendant to show that any amount has been kept in suspense by the defendant. 14 Dr. Tapas Banerjee, learned Counsel for the plaintiff decree holder petitioner urged that under S 44A of the Code this court has jurisdiction to execute this judgment which Was passed by the Queen's Bench Division of the High Court of Justice in England in the Coventry District Registry being a superior Court of a reciprocating territory and under S.14 of the Code there is a presumption that the judgment was pronounced by a court of competent jurisdiction on the production of a certified copy thereof. The certified copy of the Judgment is annexed to the tabular statement and therefore the said presumption is applicable to the present Case. 15. There is no dispute that England is a reciprocating territory and a judgment passed by a superior court of England is executable under S. 44A of the Code. 16 Mr. Sankar Mitra referred to Ss. 13 and 14 of the Code He urged that a foreign judgment would be conclusive as to any matter thereby directly adjudicated unless the same was affected by any of the clauses (a) to (f) of S. 13 of the Code It was urged that under Clause (a) of S 13 of the Code a foreign judgment would not be conclusive if it was not pronounced by a court of competent jurisdiction and that the presumption under S 14 of the Code that a foreign judgment was pronounced by a court of competent jurisdiction by production of a certified copy thereof is also displaced by proving want of jurisdiction. The alleged contract for breach whereof damages were allowed, could net be said to have been entered into within the jurisdiction of the said English Court. The defendant had no office or agent in England or within the Coventry District. The alleged order dated 22nd July. 1977 which the plaintiff alleges to have placed on the defendant was never received, by the defendant and even if received by the defendant, it was received at 34. Armenian Street. Calcutta where the said order is alleged to have been sent by the plaintiff. The alleged order dated 22nd July. 1977 which the plaintiff alleges to have placed on the defendant was never received, by the defendant and even if received by the defendant, it was received at 34. Armenian Street. Calcutta where the said order is alleged to have been sent by the plaintiff. Even according of the plaintiff the said banker's cheque or draft for 15000 issued by National Wesimimter Bank Ltd. was sent to and received and cashed by the defendant in Calcutta. Even on the case as made out by the plaintiff the said English Court had no jurisdiction to entertain or try the said suit There is also no pleadings to jurisdiction On the contrary the copy of the writ which is an annexure of the tabular statement contains a statement that the cause of action in respect of which that plaintiff claims relief in the action wholly or in part arose ill the district of the Coventry District Registry, which is on the face of it untrue Thus the said judgment was also obtained by practising fraud on the court by untrue allegations that the said court had jurisdiction which brings the said judgment within mischief of clause (e) of S. 13 of the Code. There is no pleading of facts to show how the court had jurisdiction. It was also urged that the Queen's Bench Division in the Coventry District Registry was not a superior court and thus this court could not execute any decree passed by that court under S. 44A of the Code of Civil Procedure It was also contended. as no certified copy of the decree has been produced or filed with the tabular statement as required under Chapter 17, Rule 10 of the Rules of the Original Side of this Court, which is a mandatory provision. the application for execution was not maintainable Mr. Mitra relied on various portions of the writ annexed to the tabular statement in support of his contention that the said foreign court had no jurisdiction. 17. The said statements contained in the writ and referred to by Mr. Mitra however appear under the heading "Direction for entering appearance". The contentions of Mr. Mitra are without force. The said directions are printed directions in the writ for various types of defendants giving or imputing instructions as to how appearance has to be entered. 17. The said statements contained in the writ and referred to by Mr. Mitra however appear under the heading "Direction for entering appearance". The contentions of Mr. Mitra are without force. The said directions are printed directions in the writ for various types of defendants giving or imputing instructions as to how appearance has to be entered. The same have nothing to do with the p1eading of the cause of action or with the cause of action of the plaintiff in the said action. 18 A reference to the Specimen form of writ of Summons for issue out of District Registry in Appendix 2 of Odgers' Principles of Pleadings and Practice in Civil Actions in the High Court of Justice, 21st Edition, would clearly show that what Mr Mitra referred to were matters printed in the writ. 9 Forms Nos. 148 to 151 of forms of Statement of Claim in Bullen and Leoke's Forms and precedents of pleadings (12th Edn) as well as forms of statement of claim given in Odger’s Principles of Pleadings and Practice in Civil Actions in the High Court of Justice. 21st Edition show that under the system of pleadings prevalent in England it is not necessary to plead facts as to the jurisdiction of the Court to entertain the action. To appreciate the validity or otherwise of the said judgment and of the various contentions raised and urged by Mr. Mitra, it is necessary to consider briefly the constitution of the superior courts of England and the practice and procedure in a civil action of the nature as instituted by the plaintiff. 20. By the Judicature Act, 1873 the Supreme Court was created. The Courts Act, 1971 established the Crown Court and provided that the Supreme Court shall consist of: (i) The Court of Appeal; (ii) The High Court of Justice and (ii) the Crown Court. The High Court of Justice has three divisions, namely, the Chancery Division, the Queen's Bench Division and the Family Division By and under the provisions of the Courts Act, 1971 a number of permanent trial Courts were established in the main provincial towns throughout England and Wales for the trial of Queen's Bench actions outside London. In addition, the Supreme Court, sits in London at the Royal Courts of Justice. 21. In addition, the Supreme Court, sits in London at the Royal Courts of Justice. 21. An action for damages for breach of contract is to be commenced by a Writ of summons, commonly called writ. 22. Under Order II rule 2 of the Rules of the Supreme Court of England (hereinafter called the said Rules) if a contract, wherever the same might have been made and whatever might be its subject matter, contains a term conferring jurisdiction on the High Court of Justice, the action in respect of such contract may be instituted in the High Court of Justice and the writ or notice of the writ for service out of jurisdiction is issued with the leave of court. 23. Here the action instituted by the plaintiff against the defendant being for damages for breach of contract was duly commenced by a writ in the Queen's Bench Division and it was necessary to make an endorsement in the writ as to the claim of the plaintiff either in full or in brief According to the present practice obtaining in England the endorsement in the writ as to the claim of the plaintiff either in full or in brief According to the present practice obtaining in England the endorsement in the writ is settled by the plaintiff After that has been done, it is signed by the plaintiff solicitor and upon payment of the prescribed fees tits department of the court authorised in that behalf puts the stamp and official seal thereon. One copy of the writ is kept in the department and another copy is handed over to the plaintiff's solicitor for being served on the defendant but, If service is to be effected outside the jurisdiction then leave of the court in that behalf has to be obtained. If there is any defect in the endorsement made in the writ by the plaintiff. it is for the defendant to take necessary objection. Here the writ contained a brief endorsement as to the claim of the plaintiff that the plaintiff's claim is for damages for breach of contract made on or about 22nd July 1977 and made between the plaintiff and t he defendants. it is for the defendant to take necessary objection. Here the writ contained a brief endorsement as to the claim of the plaintiff that the plaintiff's claim is for damages for breach of contract made on or about 22nd July 1977 and made between the plaintiff and t he defendants. As the writ contained a statement that "(the cause of action) (one of the, causes of action) in respect of which the plaintiff claims relief in the action wholly or in part arose in the District of the above District Registry." therefore under Order 12 rule 2 of the said rules the defendant was required to enter appearance in the District Registry, which the defendant did in this case. As the notice of the writ was served on the defendant out of jurisdiction, the presumption is. it was issued with the leave of the court In any event, no objection in that behalf has been taken by the defendant. 24. A summary judgment may be obtained by the plaintiff against the defendant under the provisions of Order 14, of the said Rules only after the defendant has entered appearance. Under the rules of procedure, either party to the suit may apply for trial without further pleadings. But if summary judgment or trial without pleadings was not asked for or was asked for but was refused then the normal procedure for hearing by service of pleadings by the parties on each other and taking ether steps would be taken recourse to. In the matter of service of pleadings the plaintiff will serve the statement of claim on the defendant while the defendant will serve the statement of defence on the plaintiff and in certain cases the plaintiff might also gives a reply to the defence. No pleading as to jurisdiction appears to be necessary in the statement of claim. If the entire case of the plaintiff as contained in the statement of claim is not endorsed in the writ then pleadings by statement of claim would be subsequent to the entering of appearance by the defendant in the action upon service on him of the writ or notice of the writ as the case may be. If the entire case of the plaintiff as contained in the statement of claim is not endorsed in the writ then pleadings by statement of claim would be subsequent to the entering of appearance by the defendant in the action upon service on him of the writ or notice of the writ as the case may be. The plea of absence of jurisdiction of the court to entertain the action has to be taken and raised by the defendant Here the defendant not being a British subject and objecting to the jurisdiction of the English Court to entertain the action, could make a conditional appearance to the action by applying ex parte under Order 12 rule 7 (1) of the Slid rules for leave to enter appearance 'under protest' and could apply under Order 12 rule 8 of the said rules to set aside the service of the writ or notice of the writ on the defendant. This does not appear to have been done by the defendant. By entering appearance under protest the defendant preserves his right to dispute the jurisdiction of the Court to entertain the action but by making an unconditional appearance to the action the defendant waives his right to the jurisdiction of the court. A conditional appearance becomes unconditional unless the defendant makes an application to set aside the service of the writ or service of notice of the writ within 14 days or obtains extension of time in that behalf. It is not the case of the defendant that it made a conditional appearance and made an application to set aside service of the writ or obtained any extension of time therefor. Thus the presumption is that the defendant made an unconditional appearance or its appearance became unconditional. Thus the defendant waived its right to object to the jurisdiction of the said English Court to entertain or try the action and the defendant cannot now agitate the Same before this Court Here. as already noted the said judgment was passed under the summary procedure under Order 14 of the said rules which is more or less similar to Chapter 13A of the Rules of Original Side of this Court and order XXXVII of the Code as amended by the Civil Procedure Code (Amendment) Act, 1976. as already noted the said judgment was passed under the summary procedure under Order 14 of the said rules which is more or less similar to Chapter 13A of the Rules of Original Side of this Court and order XXXVII of the Code as amended by the Civil Procedure Code (Amendment) Act, 1976. Rule 1 of Order 14 of the said rules provides that if the defendant has entered appearance in the action and the statement of claim has been served on the defendant, plaintiff may apply for a summary judgment against the defendant Under Rule 2 the application under Rule 1 has to be made by summons supported by an affidavit. The summons and a copy of the affidavit in support and of any exhibit referred to therein has to be served on the defendant within the title specified under sub rule (3) of Rule 2 Under Rule 3 read with Rule 4 the defendant may satisfy the court by an affidavit with respect to the claim or the part of the claim to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought some other reason to be a trial of that claim or part and the Court after hearing the parties will make necessary orders, either dismissing the application or granting leave to the defendant to defend conditionally or unconditionally. Thus the defendant had another opportunity to raise all these contentions before the said English Court, which are now sought to be urged by Mr. Mitra. The defendant does not appear to have done so. What the defendant did that it made an application for setting aside the said summary judgment under Rule 11 of Order 14 of the said rules in which a conditional order was made directing the defendant to furnish security. 25. This Court under S 44A of the Code executes a foreign judgment, if there is no decree by such Court. Explanation 2 of S 44A makes it clear, that a decree with reference to a superior court means, any decree or judgment of such court under which a sum of money is payable. In the present case the judgment which is sought to be executed being a judgment of superior court under which a sum of money is payable, is therefore executable by this Court. In the present case the judgment which is sought to be executed being a judgment of superior court under which a sum of money is payable, is therefore executable by this Court. That being the statutory provision contained in the Code the provisions of Chapter 17 Rule 10 of the Original Side Rules of this Court which requires that a certified copy of the decree should accompany the tabular statement has to be read and understood to mean certified copy of the judgment of a foreign superior court, which is, as already noted annexed to the tabular statement. 26. It was urged by Mr. Mitra that the Banker’s cheque of draft for £ 15000 issued by the National Westminiter Bank Ltd., London on United Bank of India, Calcutta, was not received by the defendant on account of the alleged contract with the plaintiff but the same was received by the defendant on account of a contract for supply of haldloom lungis to Desh Taxtile Mills of Narayangunj in Bangladesh. The said cheque or draft had nothing to do with the plaintiff or its alleged order or contract. In this context Mr. Mitra referred to the export application dated 31st August, 1977. certificate of foreign earning remittance issued by the United Bank of India, order dated 25th July, 1977 placed by the said Desh Textile Mills on the defendant and the invoice dated 30th August, 1977 in respect of supply of lungis to Desh Textile Mills. On the basis of the above documents Mr. Mitra urged that the judgment was obtained by the plaintiff on untrue allegations and representations that there was a contract between the plaintiff and the defendant and that the said Banker’s cheque or draft for £ 15000 was received by the defendant on account of the plaintiff. Thus there was not only fraud practiced by the plaintiff on the English Court but also there being no contract or order on account of the plaintiff against the defendant there could neither by any suit by the plaintiff against the defendant nor could there be any judgment or decree against the defendant in such suit. I am unable to accept the contention of Mr. Mitra. I am unable to accept the contention of Mr. Mitra. Whether the defendant received the order dated 22nd July, 1977 from the plaintiff or not and whether the Banker’s cheque or draft for £ 15000 issued by the National Westminster Bank Ltd. London on United Bank of India, Calcutta was received by the defendant on account of the said order of the plaintiff or on account of some other contract with Desh Textile Mills of Narayangunj in Bangladesh, as already observed, could not be gone into or decided by this Court in this application. These are matters of defence which were available to the defendant in the said action before the English Court. Although under Clause (a) of S.13 of the Code this court will not enforce a judgment if it was not pronounced by a court of competent jurisdiction and under clause (d) if the judgment was obtained by fraud but in considering the same this court will neither sit in appeal over the said foreign judgment nor it will start a retrial nor investigate nor decide in this application if there was a contract between the plaintiff and the defendant or the said draft or Banker’s cheque was received by the defendant on account of such contract with the plaintiff or on account of some other contract with some other party. On the question of fraud Mr. Mitra also referred to the allegations made in paragraph 11 to 16 of the affidavit in opposition filed on behalf of the defendant affirmed by Monoranjan Banik on the 20th July, 1981. The same considerations as observed earlier would be applicable to the said allegations. It may be noted in this context that certain correspondence between Desh Textile Mills and the defendant have been annexed to the said affidavit in opposition which disclose that certain Banker’s interested in Desh Textile Mills. On my enquiry from Mr. Mitra as to who those Baniks were and if they were related to the partners of Talapatra Brothers, Mr. Mitra on instruction from his client Monoranjan Banik who was present in Court informed me that they were cousins of Monoranjan Banik, one of the partners of Talapatra Brothers. But Monoranjan Banik However hastened to inform Mr. Mitra that there were also outsiders who were interested in Desh Textile Mills. 27. In was next urged by Mr. Mitra on instruction from his client Monoranjan Banik who was present in Court informed me that they were cousins of Monoranjan Banik, one of the partners of Talapatra Brothers. But Monoranjan Banik However hastened to inform Mr. Mitra that there were also outsiders who were interested in Desh Textile Mills. 27. In was next urged by Mr. Mitra that the defendant could not contest the suit in the English Court because it did not receive the sanction form the Reserve Bank of India of necessary foreign exchange. The said foreign judgment was in violation of principles of natural justice and in particular the Indian concept of natural justice. After the summary judgment was passed by the English Court the defendant made an application for setting aside the ex parte decree would be set aside. Thereafter the defendant made a further application for extension for time to make the desposit, but that was not allowed by the English Court. Therefore the said foreign judgment was in violation of the principles of natural justice. In support of his above contentions Mr. Mitra cited a decision of the Supreme Court : R. Viswanathan & ors. v. Ruku-ul-Mulk Syed Abdul Wajid since deceased & Ors reported in AIR 1963 Sc 1 . Here the Supreme Court in considering the scope of S.13 of the Code observed that a judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent jurisdiction. Competence contemplated by the said Section was in an international sense and not merely by the law of the foreign state in which the court delivering the judgment functions. The Supreme Court held that in considering whether a judgment of a foreign court was conclusive, the court in India will not enquire whether the conclusions recorded by such judgment were supported by evidence or were otherwise correct. The binding character of the judgment might be displaced only by establishing that the case fell within one or more of the six clauses of S.13 and not otherwise. The Supreme Court discussed the principles of private international law and the distinctions between judgment in rem and judgment in personam and observed that an action in personam lies normally where the defendant is personally within the jurisdiction or submits to the jurisdiction or though outside the jurisdiction may be reached by an order of the court. The Supreme Court discussed the principles of private international law and the distinctions between judgment in rem and judgment in personam and observed that an action in personam lies normally where the defendant is personally within the jurisdiction or submits to the jurisdiction or though outside the jurisdiction may be reached by an order of the court. In an action in personam the court has jurisdiction to make an order for delivery of movables where the parties submit to the jurisdiction. It was further observed by the Supreme Court that the plea that a foreign judgment is contrary to natural justice has to be considered in the light of the statute law of India and there is nothing in S. 13 which warrants the interpretation that a plea that a foreign judgment is contrary to natural justice is admissible only if the party setting up the plea is not duly served or has not been given an opportunity of being heard. It is the essence of a judgment of a court that it must be obtained after due observance of the judicial process, that is, the court rendering the judgment must observe the minimum requirements of natural justice, It must be composed of impartial persons acting fairly without bias and in good faith; it must give a reasonable notice to the parties to the dispute and afford such party adequate opportunity of presenting hi, case A foreign judgment of a competent court is conclusive even if it proceeds on an erroneous view of the evidence or the law, if the minimum requirements of the judicial process are assured. 28. The above decision of the Supreme Court does not appear to support the contention, of Mitra. 29. In the present Case before me, the action in which the judgment sought to he executed was passed was an action in rersonam. The defendant entered appearance in the did action but did not file its statement of defence. Thereupon the plaintiff made an application for and obtained a summary judgment against the defendant under the provisions of Order 14 of the said rules. The defendant does not appear to have Contested the said application. The defendant entered appearance in the did action but did not file its statement of defence. Thereupon the plaintiff made an application for and obtained a summary judgment against the defendant under the provisions of Order 14 of the said rules. The defendant does not appear to have Contested the said application. The defendant then made an application before the English Court for setting aside the said summary judgment The Court made a conditional order by consent of parties that upon the defendant paying into court the sum of £ 12000 within the time specified therein the judgment would stand set aside. The defendant also made an application for extension of time to pay the said amount, which Was however dismissed. The defendant did not make any application to the Reserve Bank of India for sanction of foreign exchange, for defending the said action. Bijan Kumar Banik a nephew of the partners of the defendant firm was staying in England at the time and had been looking after the case on behalf of the defendant. As observed by the Supreme Court in the case of R. Viswanathan (supra) that an action in personam lies normally where the defendant is personally within the jurisdiction or submits to the jurisdiction or though outside the Jurisdiction may be reached by an order of Court Here the defendant submitted to the jurisdiction of the said English Court by making an unconditional appearance in the said action or by making an appearance therein which became unconditional. The defendant has also been reached by the said judgment though the present application for execution. There is no question in this case that the defendant has not been served or that it was not given an opportunity of being heard. The judgment was obtained by the plaintiff after due observance of the judicial process and the English Court in delivering the judgment observed not only minimum but all the requirements of natural justice. It gave the defendant reasonable notice and afforded it adequate opportunity of presenting its case. The said judgment cannot be said to be contrary to any statue law of India. The defendant had no difficulty in entering appearance but allowed a summary judgment to be passed because of its own laches ; firstly, in not filing the statement of defence and secondly, in not contesting the application for summary judgment. The said judgment cannot be said to be contrary to any statue law of India. The defendant had no difficulty in entering appearance but allowed a summary judgment to be passed because of its own laches ; firstly, in not filing the statement of defence and secondly, in not contesting the application for summary judgment. The defendant however had no difficulty as regards foreign exchange in making the application for setting aside the said summary judgment and also in applying for extension of time to pay the amount directed to be paid in court for setting aside the said judgment. Non-availability of foreign exchange was no impediment in the way of the defendant in taking all those steps. Thirdly, non-availability of foreign exchange could not be a ground for non-filing exchange was made by the defendant to the Reserve Bank of India before the said foreign judgment was passed, at least nothing has been produced to show that any such application was made prior to the said date. Balance of convenience is not one of the grounds under S. 13 of the Code which makes a foreign judgment inconclusive or non-executable. In the above facts and circumstances it could not be said that difficulties in respect of foreign exchange practically or otherwise made it impossible for the defendant to defend the said action in the English Court. The said foreign judgment was passed on the 30th November, 1976 while the letter which is said to have been written by the defendant to the Reserve Bank of India had produced by Mr. Mitra to show that the defendant asked the Reserve Bank to sanction foreign exchange is dated 10th February, 1976 after the expiry of more than two months of the passing of the said foreign judgment. Nothing was produced to show that the said letter was received by the Reserve Bank or any substantive application for sanction of foreign exchange was made. In my view, in the facts and circumstances of the case, it could not also be said that the proceedings in which the said judgment sought to be executed was obtained were opposed to natural justice. From a number of correspondence between the parties disclosed by the plaintiff, it appears that the partners of the defendant had their relations in England who were looking after and representing the defendant in matters of business of the defendant in England. From a number of correspondence between the parties disclosed by the plaintiff, it appears that the partners of the defendant had their relations in England who were looking after and representing the defendant in matters of business of the defendant in England. Those correspondence also show that there bad been various business transactions between the plaintiff and the defendant and they also disclose that one K D. Banik a brother of Monoranjon Banik, a partner of the defendant, who is connected with Desh Textiles of Bangladesh is the villain of the peace. 30. The concept of natural justice that no person should be condemned unheard is not an Indian concept but a concept which has been imported to India from England. There is no Indian concept or variety of natural justice. Under Clause (d) of S. 13 of the Code a foreign judgment shall not be conclusive if the proceedings in which the judgment was obtained are opposed to natural justice. The action filed by the plaintiff was not as such, opposed to natural justice. The judgment had been obtained in the said action in the usual course under the provisions of the relevant procedure obtaining in England, which is similar to Chapter 13A of the Original Side Rules of this Court and Order 37 of the Code as amended by the Civil Procedure Code (Amendment) Act, 1976. 31. Mr. Mitra also contended that since the Reserve Bank of India did not sanction the amount of £ 12000 which was to be deposited by the defendant for setting aside the said judgment, the judgment was therefore opposed to natural justice. The contention of Mr. Mitra is wholly fallacious. A judgment or decree or order which is not initially opposed to natural justice does not become opposed to natural justice because the defendant failed to have the same set aside for some reason or other including his inability to furnish security as a condition for setting aside the same. 32. The next point urged by Mr. Mitra was that the defendant did not submit to the jurisdiction of the English Court and if the English Court has no jurisdiction, consent if any, by the defendant could not vest jurisdiction on the English Court which it otherwise had not and thus the said judgment was a nullity. In support of this contention Mr. Mitra was that the defendant did not submit to the jurisdiction of the English Court and if the English Court has no jurisdiction, consent if any, by the defendant could not vest jurisdiction on the English Court which it otherwise had not and thus the said judgment was a nullity. In support of this contention Mr. Mitra cited several decisions : (1) Sirdar Gurdyal Singh v. The Rajah of Faridkote reported in 21 1A 171. Here the appellant was for sometime in the employment of the a subject a native state, known as Jhind. He was never domiciled in the native state of Fadidkote. The Rajah had brought two suits against the appellant for defalcation of moneys belonging to the Rajah and misappropriations of funds belonging to the Rajah. When the suits were filed the appellant admittedly was not residing in Faridkote. On the facts Their Lordships of the Judicial Committee found that the Faridkote Court had no jurisdiction to entertain the suit. (2) Narappa Naickar v. Rangasami Naiker & anr reported in AIR 1933 Madras 393. This was a case where the defendant did not enter appearance to the suit and an ex parte decree was passed by the foreign court which was sought to be executed in British India. The judgment debtor had applied to the foreign court to set aside the decree but the same was dismissed and the execution was sought to be continued in British India on the ground that even though the decree was passed without jurisdiction but by reason of the judgment debtor applying to set aside the decree there was a submission to jurisdiction which 'validated the decree. It was held by the learned Judge of the Madras High Court after referring to various decisions both English and Indian including 'Gurdayal Singh's case (supra) that as the decree Was a nullity, while the 'submission to jurisdiction was not on1y made subsequent to the decree but that it was also not voluntary therefore the decree continued to be inxecutable in British India In the above case the defendant did not submit to the jurisdiction at all and the ex parte decree was therefore pissed The subsequent application of the defendant for setting aside the ex parte decree while execution in British India was pending was held to be not a case of submission to the jurisdiction at all and the exparte decree was therefore passed. The subsequent application o the defendant for setting aside the ex parte decree while execution in British Indian was pending was held to be not a case of submission to the jurisdiction as it was not a voluntary act on the part of the defendant but the defendant was forced to apply for setting aside the ex parte decree. (3) Seval Jeramchod Bhagilal & ors. v. The Dakor Temple Committee & ors. reported in AIR 1925 P.C 155. Here the dispute was with regard to do alteration of the scheme of management of the Dakor Temple sanctioned by the British Government The Temple Committee under the said scheme were entitled to frame rules and rules having been framed the same come up before the District Judge of Ahmedabad within whose jurisdiction the temple was situated for sanction of the rules. The District Judge after making certain alterations sanctioned the rules with such alterations The appellants who were parties interested in the temple and in its management made an application under Clause 20 of the scheme before the Bombay High Court challenging the alterations in the rules as sanctioned by the District Judge in which the managing members of the Temple Committee and another were made respondents. High Court considered the same and made an order from which an appeal was preferred to the Bombay High Court which was disposed of by the Bombay High Court Tile Privy council observed that the appeal was not maintainable before the Bombay High Court and the Bombay High Court had no jurisdiction in the matter the members of the Managing Committee who had appeared and contested the matter could not by their acquiescence or consent confer jurisdiction upon the Bombay High Court which it did not have. 33. The next decision cited was in Michael Golodetz & MS. Serajuddin & Co reported in AIR 1963 SC 1044 . This was a case of stay of a suit under S 34 of the Arbitration Act, 1940. The arbitration clause in the contract provided that any dispute arising out of the contract was to be settled by arbitration in New York. The respondent an Indian firm filed a suit in this court. The appellant, the other party to the contract an American Firm carrying on business in New York made in application for stay of the suit under S 34 of the Arbitration Act, 1940. The matter ultimately went up before the Supreme Court The Supreme Court considered inter alia the balance of convenience in the exercise of the power of Court to stay the suit under S. 34 of the Arbitration Act and if it was possible for the respondent to conduct the arbitration proceedings in New York In that context the Supreme Court observed that the law applicable to the dispute was Indian law, all evidence was in India and there were difficulties in respect of foreign exchange which practically made it impossible' for the Indian firm to attendor to take its witness to New York. The proceeding, in New York would thus in effect be ex parte and result in injustice to the Indian film Considering the balance of convenience and other factors the Supreme Court refused to grant any stay. 34 On the same point Mr. Mitra also cited two decisions of the Supreme Court: (1) Kiran Singh & ors. v. Ghaman Paswan & ors reported in AIR 1954 SC 340 . 34 On the same point Mr. Mitra also cited two decisions of the Supreme Court: (1) Kiran Singh & ors. v. Ghaman Paswan & ors reported in AIR 1954 SC 340 . here the Supreme Court observed that it was a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial or in respect of the subject matter of the action strikes at the very authority of the court of pass any decree and such a defect cannot be cured even by consent of parties (2) Bhagwan Das Goverdhan Das Kedia v. M/s Girdharilal Parshttam Das & Co., & ors reported in AIR 1966 SC 543 . Here the dispute was with regard to jurisdiction of the Court on the basis of when and where there was a completed contract between the parties. The Supreme Court observed that mere making of an offer did not form part of the cause of action in a suit for damages for breach of contract which resulted from acceptance of the offer A contract being the result of an offer made by one party and acceptance of the offer and intimation of acceptance by some external manifestation which the law regards as sufficient is necessary Where communication of an acceptance is made by the acceptor and it is put in course of transmission to the offeror, the acceptance is complete as against the offeror but as against the acceptor it becomes complete when it comes to the knowledge of the offeror. The following observation of the Supreme Court appear at page 547 of the report in paragraph 6 of the judgment "But an agreement does not result from a mere state of mind: intent to accept an offer or even a mental resolve to accept an offer does not give rise to a contract There must be intent to accept and some external manifestation of that intent by speech, writing or other act and acceptance must be communicated to the offeror unless he was waived such intimation or the course of negotiations implies an agreement to the contrary". 35. 35. Suresh Majumdar learned junior to Dr Tapas Banerjee submitted on the other hand that an offer made by one party and accepted by the other brings about a contract between those parties Here the plaintiff by the order dated 22nd July, 1977 issued from 74 Northwick Avenue, Kenton, Harrow, Middlessex, U K made an offer to the defendant at No, 34, Armenian Street, Calcutta, India The said offer contained a special mode of acceptance thereof that clearance of the Bankel's cheque or draft sent with toe said order would constitute acceptance of the said order and all the terms and conditions thereof by the defendant The defendant, accepted the said Banker's cheque or draft and obtained payment of the amount thereof. The plaintiff did not waive intimation of the acceptance of the Slid offer by the defendant nor was there any course of negotiations between the parties from which such waiver could be implied Thus the Contract was complete as soon as the plaintiff came to know of the clearance of the said Banker's cheque or draft, which the plaintiff came to know at No 74, Northwick Avenue, Kenton, Harrow, Middlessex within the jurisdiction of the Coventry District Registry. 36. It now appears that the defendant deliberately did not give any intimation of acceptance to the plaintiff as it is denying such contract and receipt of the said Banker's cheque or draft for or on account of the plaintiff. 36. It now appears that the defendant deliberately did not give any intimation of acceptance to the plaintiff as it is denying such contract and receipt of the said Banker's cheque or draft for or on account of the plaintiff. Thus, neither any fraud nor any misrepresentation to court was made by the plaintiff because of the statement in the writ that the came of action or one of the clauses of action in respect of which the plaintiff claims relief in the action wholly or in part arose in the Coventry District Registry out of which the said writ or the notice of the writ was issued, It was urged that it could not therefore be said that the said English Court had no jurisdiction to entertain or try the said action, Apart from that, under the terms of the contract the parties also agreed that in case of breach of any of the terms and conditions of the said order dated and July, 1917 which ripened into a Contract between the parties, all actions and claims arising out of such breach would be subject to U K jurisdiction and all causes of action be deemed to have arisen under the laws of England and all proceedings will be in the law courts of England. Further the defendant voluntary submitted to the jurisdiction of the said English Court by entering appearance in the said action unconditionally and did not make any objection to the jurisdiction of the said court as will appear from the certificate of the District Registrar of the Coventry District Registry dated 15th January, 1980. 37. In my opinion, as an executing court executing the said foregin judgment this court is not entitled under S 13 of the Code, to 10 into this question. If there was a contract between the parties or not and start a retrial of the suit. 37. In my opinion, as an executing court executing the said foregin judgment this court is not entitled under S 13 of the Code, to 10 into this question. If there was a contract between the parties or not and start a retrial of the suit. The above contentions of Mr Mitra were all matters of defence of the defendant in the said action in the English Court which the defendant failed and neglected to raise in that Court Now at this stage this court is bound to accept, on the basis of the said foreign judgment that there was a contract between the plaintiff and the defendant and the defendant committed breach of such contract for which the plaintiff suffered damages in respect whereof the said foreign judgment was duly passed. 38. The contentions of Mr Majumdar are not without force. 39. In any event, the defendant having submitted to the jurisdiction of the English Court: and having made an unconditional appearance in the said action. waived its right to object to the jurisdiction of the English Court to entertain the said action or to pass the said judgment Even if there was any misstatement in the writ that the cause of action or one of the causes of action arose within the Coventry District Registry, that was also waived by the defendant. As already observed, that under the system of pleadings obtaining in United Kingdom the plaintiff need not plead jurisdiction and objection to jurisdiction has to be token by the defendant Thus there was no fraud as urged by Mr Mitra. 40. Another argument was sought to be made by Mr. Mitra that in this case there was a conflict between international law and municipal law and in cage of such conflict the municipal law was to be followed. In my view this question does not arise in this case. The Case cited by Mr. Mitra in this context is a decision of the Supreme Court in Gracmophone Company of India Ltd. v. Birendra Bahadur Pandey & ors reported in AIR 1984 SC 667 which is noted. It is not necessary to discuss this case. In my view this question does not arise in this case. The Case cited by Mr. Mitra in this context is a decision of the Supreme Court in Gracmophone Company of India Ltd. v. Birendra Bahadur Pandey & ors reported in AIR 1984 SC 667 which is noted. It is not necessary to discuss this case. 41 It was next contended by Mr Mitra that under clause (b) of S. 13 of the Code a foreign decree to be executable had to be given on the merits of the case Mr Mitra urged that here the judgment that was passed was a summary judgment under the provisions of Order 14 of the said rules. The decree was Passed ex parte against the defendant. Thus the judgment was not given on the merits of the case after hearing the defendant but was given ex parte without hearing the defendant. In support of his contention Mr. Mitra relied on a decision in Mallappa Yallappa Bernur v. Raghavendra Shamrao Deshpande reported in AIR 1938 Bombay 173 Here a Division Bench of the Bombay High Court inter alia laid down the conditions to be satisfied by it foreign judgment a., having extra territorial validity before it Can be executed under S. 44A of the Code. Two of the conditions laid down were that the defendant voluntarily appeared before the foreign court and the defendant had contracted to submit to the Jurisdiction of the foreign Court The learned Judges relied on a passage from Dicey's Conflict of laws 5th Edn. under the heading "Jurisdiction in actions in Perscnam" which leads as follows: "where the party objecting to the jurisdiction of the court of such country as, by his own conduct, submitted to such jurisdiction i.e, has precluded himself from objecting thereto : (a) by appearing as plaintiff in the action, (b) by voluntarily appealing as defendant in such an action; or (c) by having expressly or impliedly contracted to submit to the jurisdiction of such courts". It was also observed that ordinarily it was not open to a court in British India to sit in appeal over a foreign judgment and refuse to recognise the same on the ground that it had proceeded on grounds which would not be adequate in British India unless it came within any of the grounds mentioned in S. 13 of the Code. But under Clause (b) of S 13 the Courts in British India have a right to examine the foreign judgment to see whether it was given on merits. The decision in Malappa's case (supra) is not helpful to the defendant. 42. In the present Case the defendant voluntarily submitted to the jurisdiction of the English Court by entering appearance to the action, as already observed, unconditionally or which became unconditional. There after because of non filing of statement of defence the plaintiff obtained a summary judgment under the provision of Order 14 of the said Rules. By clause 7 of the said order dated 22nd July, 1977 placed by plaintiff on the defendant which ripened into a contract, the defendant expressly contracted to submit to the jurisdiction of courts in the United Kingdom which provided that if the defendant or the plaintiff failed to comply with the terms and conditions of the said order then all actions and claims arising from such failure by either would be subject to U. K. jurisdiction and all causes of action be deemed to have arisen under the laws of England and till proceedings will be in the law courts of England and both the defendant ad the plaintiff have voluntarily consented to this and till other terms as final without any qualification or reservation Under S. 13 of the Code this Court is not competent to decide or go into the question whether the said Banker's cheque or draft was received and the payment thereof was obtained by the defendant in respect of the said order placed on the defendant by the plaintiff Dr in respect of some other contract between the defendant and Desh Textiles Mills of Bangladesh That question would have been a defence of the defendant in the said action in the English Court if the defendant chose to defend the said action by filing its statement of defence or even contested the application of the plaintiff for summary judgment. Mr Mitra also relied on a decision of a single Judge of this Court in Derby Mc Intyre & Co. Mr Mitra also relied on a decision of a single Judge of this Court in Derby Mc Intyre & Co. Ltd. Martin & Co reported in 39 CWN 557 Here the plaintiff having failed to serve the defendant in London through a representative, with the leave of the court served the writ on the defendant in Calcutta The defendant did not appearance in the suit Thereupon the plaintiff obtained judgment against the defendant in the King's Bench Division in London employing the of expeditious procedure After obtaining the judgment in the English Court the plaintiff brought a suit in this court on the said judgment or in other words the plaintiff again sued on the said facts. In the suit the plaintiff was met with a legal defence of a technical character by the defendant on the basis of clause (b) of S 13 of Code that the said foreign judgment was not given on merits and therefore the principle of res judicata as contained in S. 13 of the Code was not available. The defendant also took other defences on merits. The learned Judge after considering several decisions of the Privy Council and of other High Courts and after classifying the different types of cases where summary judgments or Judgments by default are passed by the court, came to the conclusion that a foreign judgment given by default under summary procedure in the absence of appearance by the defendant and filing of any defence by him and without any consideration of the plaintiffs evidence is not a judgment given on the merits of the case and thus came under the exception contained in S. 13(b) of the Code. Such a judgment is not conclusive as to any matter thereby adjudicated. 43. Here in this case the defendant having been duly served with the notice of the writ entered appearance in the English Court but did not for any statement of defence. Thereupon the plaintiff obtained a summary judgment under the provisions of Older 14 of the said rules on the basis of affidavit evidence III respect of the claim of the plaintiff In Derby Mc. Intyre’s case (supra) however, the defendant did not enter appearance at all and it appears that the court entered judgment against the defendant for the sum not exceeding that claimed in the writ without considering plaintiff’s evidence, under Order 13 of the said rule. Intyre’s case (supra) however, the defendant did not enter appearance at all and it appears that the court entered judgment against the defendant for the sum not exceeding that claimed in the writ without considering plaintiff’s evidence, under Order 13 of the said rule. Thus the said decision would not, in view. Be stricity applicable to the facts and circumstances of this case as the summary judgment here was passed by the Court after considering plaintiff’s evidence. In this context it may however be noted that the Supreme Court in R. Viswanathan’s case (supra) held that a foreign judgment of a competent court is conclusive, even if, it proceeds on an erroneous view of the evidence or the law, after the minimum requirements of the judicial process are assured and the Courts in India will not enquire whether the conclusions recorded by such judgment were supported by evidence or were otherwise correct. Correctness of the judgment in law or on evidence is not predicted as a condition for recognition of its conclusiveness by the municipal court, neither the foreign substantive law nor the procedural law of the trial be the same or similar as in the municipal court after the defendant was given sufficient opportunity to represent its case and if the court rendering the judgment was composed of impartial persons acting fairly without bias and in good faith. These observations of the Supreme Court have however, to a great extent weakened the decision in Derby Mc. Intyre’s case (supra). In the case before me the defendant was given ample opportunity by the English Court to represent its case. There is no allegation of partiality or bias or bad faith against the learned Judge, who delivered the judgment against the defendant. Here the defendant, as already discussed deliberately chose not to file its statement of defence and not to connect the application for summary judgment. In Sheikh Abdul Rahim v. Mohamed Din & Anr. reported in 75 CLJ 271 a Division Bench of this Court considered if a judgment passed ex parte by the High Court of London could be challenged under clause (b) of S 13 of the Code as a decree or judgment not based on merits. In this case the appellant had obtained a judgment in the High Court of London against the respondents which he sought to execute in the Alipore Court. In this case the appellant had obtained a judgment in the High Court of London against the respondents which he sought to execute in the Alipore Court. The action in England was trial and a judgment was passed by a Special Referee in the High Court of London The respondents/defendants did not appear although they had notice of the action. The respondents contended before the Alipore Court that the judgment of the English Court was not given on merits of the Case as the defendants were absent when the matter was heard and adjudicated upon and the judgment was passed without taking any evidence of the plaintiff/ appellant. Their Lordships of the Division Bench held that the presumption that judicial acts have been regularly preformed applied to the case and since the defendants respondents have no evidence which would rebut such presumption, the contention that the judgment was invalid because no evidence was given must fail. It was observed that the controversy which is sought to be raised now was subject to direct adjudication by the English Court. If the respondents had any grounds for impugning the validity of the judgment they could appeal to the Court of Appeal in England, which they did not. The defendants failed to show to the satisfaction of the Court, as was the burden on them, that the judgment falls within the mischief of Clause (b) of S. 11 of the Code namely, that it has not been given on merits. 44 Chief Justice Derbyshire in his judgment noted "that if the mere absence of the defendant could prevent a judgment given in his absence from being one given on the merits of the case, there would be every incentive for the defendant to be absent when the matter came on for disposal and in such an event he would always say that the judgment was not giver. on the merits of the Case, even though the absence was due to his own fault. I cannot think that that is the position. on the merits of the Case, even though the absence was due to his own fault. I cannot think that that is the position. The observations of the learned Chief Justice, in my opinion, aptly app1y to the facts and circumstances of this case before me The learned Chief Justice also referred to a decision of the Judicial Committee in Keymer v P. Viswanatham Reddi reported in 44 IA 6 : 25 CLJ 233 where Lord Buokm Ister considered what was the meaning of a judgment not given on the merits of the case as contained in Clause (b) of S. 13 of the Code and observed that what would have been the merits of that case, would be denial by the defendant of the various averments of the plaintiff and as the defendant did not appear or contest the action none of those matters Was ever considered or was over the subject matter of adjudication at all. In that case on the refusal of the defendant to answer interrogatories his defence was struck out and he was treated as though he had not defended the action and the judgment was given on that footing His Lordship held that such a decision could not be regarded as a decision not given on the merits of the case within the meaning of clause (b) of S. 13 of the Code; that clause referred to those cases where, for one reason or another, the controversy raised in the action had not, in fact, been the subject of a direct adjudication by the court. 45. With great respect I accept the observations of Chief Justice Derbyshire and Lord Buckmaster. Thus the contention of Mr. Mitra that because the judgment in this case was given under the summary procedure under Order 14 of the said Rules in the absence of the defendant and without hearing the defendant it could not be said that the said judgment was not given on the merits of the case. 46. Another contention was raised by Mr. Mitra that according to the plaintiff the amount of £ 15000 was collected from several Bangladeshi Nationals residing in England. Permission was obtained by those Bangladeshi the amount for the purpose of their dependents. 46. Another contention was raised by Mr. Mitra that according to the plaintiff the amount of £ 15000 was collected from several Bangladeshi Nationals residing in England. Permission was obtained by those Bangladeshi the amount for the purpose of their dependents. The applications contained a declaration by the applicants inter alia that the payment of the amount mentioned in the applications was to support the defendants of the applicants who are residents outside the scheduled territories and it was an offence under the Exchange Control Act, 1947 to give false information on the form of the application. Mr. Mitra urged that the permission was obtained to remit the amount for support of the dependants of the applicants and not for purchase of goods by the plaintiff. The permission was therefore obtained on false declarations whereby an offence was committed under the Exchange Control Act, 1947. Thus the money remitted was illegal and was tainted with illegality and the court will not execute the foreign judgment passed on a breach of contract for the amount alleged to have been sent by the plaintiff to the defendant which was procured illegally or was tainted with illegality. 47. Firstly, no such objection is taken in the affidavit in opposition filed on behalf of the defendant. Secondly, it cannot be presumed that the said Bangladeshi nationals who obtained permission of the Exchange Control Authority to remit the said amounts for support of their dependants in Bangladesh allowed the plaintiff user of the said amounts gratuitously and not for the purpose for which the permission was obtained. Thirdly, nothing has been placed before my by the defendant to show that the dependents of the said applicants were not benefited either by the supply of goods under the contract between the plaintiff and the defendant or that they had no interest therein. Fourthly, the judgment was for breach of contract and not for enforcement of the contract. The judgment therefore was neither illegal nor tainted with illegality. Lastly, such contention does not come within the mischief of any of the clause contained in S. 13 of the Code. 48. It was lastly urged by Mr. Fourthly, the judgment was for breach of contract and not for enforcement of the contract. The judgment therefore was neither illegal nor tainted with illegality. Lastly, such contention does not come within the mischief of any of the clause contained in S. 13 of the Code. 48. It was lastly urged by Mr. Mitra that in execution of the said foreign judgment the plaintiff is seeking to attach and sell immoveable properties being Lot No 25A in B. C. Roy Co-operative Colony Society Ltd, premises No. 20, Kali Krishna Tagore Road and No. 1/12 and 1/12A, Gopal-Bose Lane, Calcutta 50, all situate outside the ordinary original civil jurisdiction of this court Mr. Mitra referred to S. 39(1)(c) of the Code and urged that there could be: no attachment or sale unless the said judgment or decree was transferred to the competent Court within the jurisdiction of which the properties lay. 49. Firstly, S.39 deals with decrees which arc transferred by the Court which passed the decree on the application of the decree holder to another court for execution. Secondly, S. 39 deals with decrees passed by Indian Courts which can be transferred by the Court which passed the decree to another Indian Court of competent jurisdiction for execution. The present judgment or decree which is sought to be executed is not a judgment or decree whish was passed by an Indian Court. Therefore, S.39 does not in terms apply to the present judgment or decree sought to be executed Secondly the judgment passed by the Queen’s Bench Division which is sought to be executed did not direct sale or delivery of any immovable property situate outside the local limits of the jurisdiction of the court which passed the said judgment or decree. Lastly, the judgment sought to be executed is a plain and simple money decree and is sought to be executed in this court under the special provisions of S. 44A of the Code for execution of foreign judgments and decrees and not under S.39 of the Code. Therefore, the contention of Mr. has to be and is rejected. 50. In conclusion, the contentions raised and urged by Mr. Therefore, the contention of Mr. has to be and is rejected. 50. In conclusion, the contentions raised and urged by Mr. Mitra on the basis of clause (a), (c), (d), (e) and (f) of S.13 of the Code are all matters of defence which were available to the defendant in the said action in the English Court which the defendant failed and neglected to avail of Sections 13 and 14 of the Code embody in them a rule of res judicate. This court as an executing court cannot rehear the said action as a defended suit afresh or sit in appeal over the said foreign judgment, which Mr. Mitra is asking this court do do. 51. For all the above reasons all the contentions raised by Mr. Mitra fail. 52. There will be an order in terms of Column 10 of the tabular statement except with regard to the assets, properties, furniture and office equipments lying at 34, Armenian Street, Calcutta as no particulars thereof have been given. 53. There will also be an order in terms of prayers (a), (b) and (g) of the petition. Mrs. Basanti Chowdhury, Advocate is appointed Receiver over the Banking Account standing in the name of the respondent no. 1 with the United Bank of India, Burra Bazar Branch with power to realize and collect the amount lying therein. After such collection and realisation the Receiver to make over the same to Messrs. Sandersons & Morgans, the Advocates on record for the plaintiff who in their turn to make over the same to the plaintiff who shall appropriate the same in pro tanto satisfaction of its claim. 54. The initial remuneration of the Receiver is fixed at 30 G Ms. to be paid by the plaintiff at the first instance. 55. Ad Interim order made on 31st March, 1981 in terms of prayer (c) of the petition is made absolute. 56. Receiver, the United Bank of India, Burra Bazar Banch and all parties to act on a signed copy of the minutes on the usual undertaking. 57. Mr. Mitra asks for slay of operation of this order for a fortnight. In my view there is no reason to stay the operation of the order and the prayer is refused All contentions raised, fail. Prayers in terms (a) (a), (b) and (g) of the petition allowed.