Happell, J.



1. This second appeal arises out of O.S. No. 70 of 1940 in the Court of the District Munsif of Namakkal, a suit upon a foreign judgment. The question is whether the suit was barred by limitation. The plaintiff in the suit is the appellant. The defendant who was a permanent resident of Kalappanickenpatti village within the jurisdiction of the Court of the District Muilsif of Nemakkal and temporarily residing at Muar in the Federated Malay States had borrowed 1356 dollars from the plaintiff on a promissory note. The plaintiff filed C. S. No. 81 of 1930 in the District Court of Muar and obtained a decree on 21st July 1930. Various payments were made by the defendant towards the discharge of this decree, the last being on 12th June 193

8. On 10th January 1940, a sum of 786 dollars 12 cents was found due and on 28th February 1940 the plaintiff filed the present suit to enforce the foreign judgment. Article 117, Limitation Act, provides a period of limitation of six years from the date of the foreign judgment, and, as the foreign judgment was pronounced on 21st July 1930, the suit was on the face of it barred. The plaintiff, however, contended that limitation was saved by reason of the fact that under Section 13, Limitation Act, he was entitled to deduct the period during which the defendant was residing out of British India and he also argues now, although it is not clear that this argument was put forward in the lower Courts, that in any case limitation will start to run from the date of the last payment in discharge of the decree of the foreign Court, namely, 12th June 193

8. The learned District Munsif held that the suit was in time and passed a decree accordingly. On appeal, however, his decree was reversed by the District Judge of Salem, and the suit was dismissed.

2. The District Munsif considered that the plaintiff was entitled to deduct the period during which the defendant was absent from India, which admittedly was ever since the suit in the Muar Court had been filed. He referred to the decision of a Bench of this Court in Rathina v. Paekiriswami (28) 15 A.I.R. 1928 Mad. 1088, but distinguished it from the present case. The District Judge rather surprisingly made no reference to Rathina v. Paekiriswami (28) 15 A.I.R. 1928 Mad. 1088 and although, in my opinion, his decision was right, it is not easy to see on what grounds he based it. He say only that it is extremely doubtful whether Section 13, Limitation Act, was ever intended to apply to a case like the present where both the parties were absent throughout from British India and where the cause of action arose and was prosecuted in a foreign Court.



3. In my judgment Rathina v. Paekiriswami (28) 15 A.I.R. 1928 Mad. 1088 is clear authority for the view that the provisions of Section 13, Limitation Act, are only attracted when the cause of action has arisen in British India. In distinguishing the case, the learned District Munsif has referred only to one part of the judgment. The question was not merely whether the plaintiff in the suit in question was entitled to the benefit of Section 14 but also whether he was entitled to deduct the period during which the defendant had been absent from British India. I am bound by the decision in Rathina v. Paekiriswami (28) 15 A.I.R. 1928 Mad. 1088 and no purpose is served by considering whether other High Courts have or have not taken a different view.

4. Article 117, Limitation Act, provides a period of limitation of six years for a suit upon a foreign judgment as defined in the Civil Procedure Code, and states that the time from which the period begins to run is the date of the judgment. It is argued for the appellant that the suit, although in name a suit on a foreign judgment is in essence a suit to recover the amount due on the promissory note executed by the defendant in the plaintiffs favour, so that as would be the case in a suit on a promissory note, the starting point of limitation is not the date of the judgment but the date of the last payment which saves limitation. There is nothing in this contention. The debt has become merged in the decree, and a fresh cause of action for a suit on the foreign judgment is given by the decree. The payments in execution of the decree are only relevant to any period of limitation which might be given by the law of the country in which the decree was passed in respect of proceedings in execution. They have no bearing on the period of limitation in regard to a suit brought in British India upon the foreign judgment.



5. The appeal therefore fails and is dismissed with costs. (Leave to appeal is refused.)