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Punamchand Sadaram and Co. Vs. Capt. E.J. Mollison - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai
Decided On
Case NumberFirst Appeal No. 211 of 1911
Judge
Reported in(1911)13BOMLR658
AppellantPunamchand Sadaram and Co.
RespondentCapt. E.J. Mollison
Excerpt:
civil procedure code (act xiv of 1882), section 120-civil procedure code (act v of 1908), section 11-dismissal of suit for plaintiff's default-decree-sub-sequent suit on the same cause of action-res judicata.;an order dismissing a suit under section. 120 of the civil procedure code, on the ground of the plaintiff's default to appear in obedience of the court's order is a decree and a subsequent suit on the same cause of action is barred under section. 11 of the civil procedure code, 1908. - chandavarkar, j.1. we are of opinion that the present suit is barred as res judicata. the order dismissing the previous suit was under section. 120 of act xiv of 1882. that section provides that if on the day fixed, for the purpose mentioned,. a party does not comply with the order of the court, the court may pass a decree against that party or make such order in relation to the suit as it thinks fit. it is contended that the dismissal of the suit on the ground of the plaintiffs default to appear in obedience to the court's order was not a decree passed against him, but a mere order which does not preclude the party from filing a second suit on the same cause of action. but the order dismissing the suit was plainly a decree against the plaintiff; that was the only way of passing a decree.....
Judgment:

Chandavarkar, J.

1. We are of opinion that the present suit is barred as res judicata. The order dismissing the previous suit was under Section. 120 of Act XIV of 1882. That section provides that if on the day fixed, for the purpose mentioned,. a party does not comply with the order of the Court, the Court may pass a decree against that party or make such order in relation to the suit as it thinks fit. It is contended that the dismissal of the suit on the ground of the plaintiffs default to appear in obedience to the Court's order was not a decree passed against him, but a mere order which does not preclude the party from filing a second suit on the same cause of action. But the order dismissing the suit was plainly a decree against the plaintiff; that was the only way of passing a decree against him under the circumstances. Therefore, there was a decree against the present appellant in the previous suit. His present suit is, therefore, barred under Section. 11 of the Code of Civil Procedure (Act V of 1908). The fact that Section. 120 has no clause giving the right to bring a fresh suit, under certain circumstances, such as is to be found in some other sections of the Code, supports the conclusion at which we have arrived. We must, therefore, confirm the decree with costs.


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