BALDEVDAS KARSONDAS PATEL Vs. MOHANLAL BAPALAL BAHIA

JUDGEMENT

(1.) This appeal raises a very short question of law. The defendant filed a suit on the Original Side of this Court on a promissory note for Rs. 5,001. That suit was filed as a summary suit. The defendant took out a summons for judgment. On that, the plaintiff appeared to show cause. The matter came before me in chambers and I made an order directing the plaintiff to deposit Rs. 2,500 within a certain time as a condition of his getting leave to defend the suit. The plaintiff did not make the deposit. The result was that an ex parte decree was passed in favour of the defendant on the promissory note. The plaintiff has now filed the present suit from which this appeal arises for a declaration that the promissory note on which the decree was passed was without consideration.

(2.) A preliminary issue was tried before the learned Judge below, whether the plaintiff's suit was barred by res judicata, and the learned Judge took the view that it was so barred and dismissed the plaintiff's suit.

(3.) Mr. N.C. Shah for the appellant has strongly relied on a decision of this Court reported in Rungrav Ravji V/s. Sidhi Mahomed Ebrahim (1882) I.L.R. 6 Bom. 482. That was a decision of Mr. Justice Latham sitting on the Original Side, and what that case lays down is that if a plaintiff fails to give security for costs and because of that his suit is dismissed, then that dismissal cannot operate as res judicata. It is perfectly clear and by now well established that an ex parte decree can operate as res judicata because an ex parte decree is a decree on merits. The Court passing the decree hears the case on merits, finally decides it, and passes the decree. The only difference between an ex parte decree and a decree in invitum is that when an ex parte decree is passed, the defendant is absent; but an ex parte decree is as much on merits as a decision in invitum.