AIR 1967 DELHI 22

Delhi High Court

Hon'ble Judge(s): S. K. Kapur, S. N. Andley , JJ

(A) Civil P.C. (5 of 1908) , S.13, S.14— Suit for recovery of money filed in Sialkot in Pakistan in 1949 - Ex parte decree passed - Decree containing an observation that summons was duly served on defendant - Defendant resident of Sialkot till September 1947 - Afterwards, defendant becoming permanent domicile of India and never going to Pakistan again - Evidence clearly showing that defendant was not served while he was in Pakistan - Enforceability of decree - As both on the date of institution of suit in Sialkot and on date of Judgment, defendant was a domicile and resident of India, under Art.5 of the Constitution read with S.3(28) of the General Clauses Act, he will be a Citizen of India - Since he did not submit to the jurisdiction of the Sialkot court in a personal action against him, a decree pronounced in absentem will be an absolute nullity @page-Del23and is unenforceable in India u/S.18 - From the observation in the decree about service, it cannot be presumed that the defendant was physically in Pakistan on the date of the suit when summons was served since a defendant may be duly served even outside Pakistan - It cannot also be argued that such presence is enough to render the foreign decree valid and enforceable.AIR1966 S. C.1436 and (1895) ILR 22 Cal 222 (PC) Foll. Constitution of India , Art.5— General Clauses Act (10 of 1897) , S.3(28)— Evidence Act (1 of 1872) , S.114(....