Code of Civil Procedure, 1908-Section 11-Ex-parte decree in suit will operate as res judicata in subsequent suit for same relief and same cause of action.

Plaintiff is the appellant in the above second appeal. The suit was for declaration and permanent injunction.

2. The suit property which originally belonged to Mottaiya Gounder was settled in favour of his wife Thanjammal on 8-8-1972. After the settlement, Thanjammal was in possession and enjoyment of the suit properties. She filed a suit for declaration and injunction against the respondents 1, 2 and 4 and obtained a decree on 4-11-1976. On 30-5-1979, the plaintiff purchased the property from Thanjammal. Since the defendants interfered with the possession of the plaintiff, he has filed the suit.

3. The first defendant filed a written statement, which was adopted by the defendants 2 and 3. According to them, there was no settlement by Mottaiya Gounder. Thanjammal never enjoyed the suit properties. The third item measuring 3.67 acres was purchased by Ramasamy Gounder on 22-12-1924 with his own funds. After Ramasamy's death, his son Munusamy and his wife enjoyed it. Mottaiya Gounder has no connection with the suit property. The defendants have prescribed title by adverse possession. It was also contended that Mottaiya Gounder and Ramasamy Gounder were brothers and they form a joint family and the properties belonged to them. Therefore, the settlement by Mottaiya Gounder in favour of Thanjammal was not valid.

4. The trial Court dismissed the suit and the lower appellate Court has concurred with it. Hence, the plaintiff has filed this Second Appeal.

5. The only contention urged by the learned counsel Mr. A. K. Kumarasamy, appearing on behalf of the appellants is that the ex parte decree in O.S. No. 1213 of 1974 on the file of the District Munsif, Tindivanam, as evidenced by Ex. A-1 operates as res judicata against defendants 1, 2 and 4. The said suit was filed by Thanjammal, the vendor of the plaintiff for declaration and injunction against the defendants 1, 2 and 4 with reference to the suit properties and obtained an ex parte decree. As it was not set aside, it has become final.

6. On the other hand, the learned counsel for the respondents Mr. D. Rajagopal contended that this question was raised in the earlier S. A. No. 1848 of 1981 before this Court and this Court found the reasoning of the first appellate Court that the judgment operated as res judicata against the third defendant could not be sustained.

7. The learned counsel for the appellants contended that even though the third respondent is not bound by the earlier judgment, the other respondents would be bound by the said judgment as they were parties. The learned counsel for the appellants cited the following decisions in support of his contention.

1. Newton v. Official Trustee, 1954 AIR(Cal) 506.

2. Chenniappa Mudaliar v. C.I.-T., Madras, (1964) 2 Mad LJ 157 : 1965 AIR(Mad) 62).

3. H. R. and C. E. Commr. v. V. Krishnaswami, 1975 AIR(Mad) 167.

4. Vishnu Sugar Mills Ltd. v. I. S. P. Trading Co., 1984 AIR(Cal) 246.

8. Newton v. Official Trustee, 1954 AIR(Cal) 506. In the said case, ex parte decree was passed after filing the written statements and taking part in the proceedings for a considerable time, the appellants defaulted in appearance during the last stages. After distinguishing the Privy Council case New Brunswick Railway Co. v. British and French Trust Corporation, 1939 AC 1, the Calcutta High Court Bench took the view that even if a decree is an ex parte, it will operate as res judicata in respect of all grounds of defence against the actual claim in the suit as also all matters inconsistent with such claim which might and ought to have been raised.

9. The next case cited by the counsel for the appellants in Chenniappa Mudaliar v. C.I.-T., Madras, (1964) 2 Mad LJ 157 : 1965 AIR(Mad) 62) (SB). It was held by the Full Bench that there is a real distinction between the case of dismissal of a legal proceeding for default of appearance and one given on merits. In the former case, it is termination of the proceeding for non-prosecution. Such termination decides nothing