An ex parte decree passed in a summary suit under Order 37 of the Code of Civil Procedure is valid and operates as res judicata between the parties, provided that the court had jurisdiction to entertain the suit and the plaintiff failed to comply with any condition precedent imposed by the court.

Ramratna Singh, J.

1. The plaintiff has preferred this appeal against a decision of the Second Additional District Judge of Hazaribagh reversing a decision of the Second Additional Subordinate Judge who decreed the plaintiffs suit for declaration that an ex parte decree passed in summary suit No. 767 of 1956 by the Bombay City Civil Court on the 4th October, 1956 against him and in favour of the defendant-respondent was void, iilegal and inexecutable. The dispute between the parties arose on account of a contract entered into between them at Giridih in the district of Hazaribagh on the 8th February, 1952, under which the plaintiff was bound to sell all the Beryl and columbite minerals raised from his mines to the defendant-respondent who reserved to himself the option of purchasing minerals on cash or on credit.

2. According to the plaintiff-appellant, he supplied under the terms of the contract beryl to the respondent of the value of Rs. 16914/6/-. Towards this price, the respondent paid Rs. 700.00 in cash on the 12th February, 1954, and, thereafter, Rs. 6000.00 through three cheques, each of Rs. 2000/-. As the cheques were cross-cheques, the appellant in order to facilitate collection took them in the name of Ramesh Mica Supply Company, of which he happened to be a partner.

All the payments made in cash or cheque were made at Giridih. Even after this payment, Rs. 10,214/6/- remained due to the appellant from the respondents. There was a correspondence between the parties regarding this amount, and the respondent claimed to have advanced Rs. 40,000.00 to the appellant, which claim the latter said was incorrect. But, without the knowledge of the appellant, the respondent instituted the suit at Bombay against Ramesh Mica Supply Co., for recovery of Rs. 6700.00 on the ground that he had advanced this loan to this Company. The appellant asserted that the Bomay Civil Court had no jurisdiction to entertain the suit or to grant a decree.

3. The respondent, on the other hand, asserted that out of the amount advanced by him towards the price of the minerals, Rs. 25,000/-was still due as sufficient quantity of minerals had not been supplied. The amount of Rs. 6700/-, to which the Bombay suit related, is said to have been advanced by the respondent through cheques, one for Rs. 700.00 and the other for Rs. 2000/-each as loan to Ramesh Mica Supply Co., through the appellant who represented to the respondent that he was the sole proprietor of the Company. It is further said that the Bombay Court had jurisdiction to entertain the suit which was decreed.

4. It was found by both the Courts below that Rs. 700.00 was paid in cash at Giridih, and Rs. 6000.00 was paid through three cheques, each of Rs. 2000.00 dated the 9th December, 1954, 14th March, 1955 and 20th March, 1955, all given by the respondent to the appellant at Giridih. All the cheques were drawn at Giridih by the respondent on a Bombay Bank, and they were cashed by the appellant through the Giridih branch of the United Commercial Bank who got the cheques cashed from the Bombay Bank. The trial Court, therefore, held that the cause of action arose wholly at Giridih; but the learned Additional District Judge was of the view that, though the cause of action for Rs. 700.00 which was paid in cash arose at Girdih, for payments through cheques the cause of action arose at Bombay, and, therefore, a part of the cause of action arose there and the Bombay Court had jurisdiction in the matter. The learned Additional District Judge further found that the decree passed by the Bombay Court operated as res judicata.

5. The first question to be considered is: what is the effect of the decision of the Court in a summary suit as provided in Order 37 of the Code of Civil Procedure. This order has been amended by the Bombay High Court; and the relevant portions of Rules 2 and 3, as amended by the Bombay High Court read as follows:

"2. (1) All suits upon bills of exchange, hundies or promissory n