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. Sidhi Mahomed Ebrahim I.L.R(1882) .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.
4. Now the position here is that when the plaintiff failed to make the deposit and comply with the condition imposed, he was deprived of the right to defend the suit and the Court passed an ex parte decree against him. In ordinary cases the absence of the defendant is voluntary. In eases of a summary suit where the condition on which leave to defend is given is not complied with, his absence is a result of the coercive process of the law; but both in the first case and in the second case the decree passed by the Court is an ex parte decree and, as we have pointed out, an ex parte decree is a decree on merits passed by the Court after it has heard and decided the matter. In Rungrav Ravji v. Sidhi Mahomed Ebrahim obviously there was no decision on the merits at all, because the Court, without going into the matter, as soon as it found that the plaintiff had not given security for costs, dismissed the plaintiff's suit. But in the case of a summary suit when the plaintiff fails to make a deposit or carry out the other conditions laid down by the Court before he can be allowed to appear and defend, the Court actually goes into the merits of, the case. The plaintiff has got to prove his claim; and on that claim being proved, a decree is passed by the Court. It is true that that decree is passed in the absence of the defendant; but the defendant has to thank themself if he is prevented from defending his suit. In our opinion the point raised by Mr. N.C. Shah is wholly untenable and the learned Judge was right in coming to the conclusion that the plaintiff's suit barred by res judicata.
5. The appeal, therefore, fails and must be dismissed with costs.