Palaniappa V. Gomes

Present: Mr. Justice Wendt and Mr. Justice Wood Renton.

 

PALANIAPPA v. GOMES et al.

 

D. C., Kalutara, 3,697.
 

     Civil Procedure Code, ss. 418, 207, 5-Dismissal of action on account of plaintiff's failure to give security for costs-Res judicata.
 
    Where the plaintiff brought an action in the District Court of Colombo against the defendant, who was resident in Kalutara, on a promissory note, and having been ordered to give security for costs under section 417 of the Code, he failed to do so, and his. action was dismissed under section 418 of the Code; and where the plaintiff brought an action on the same note in the District Court of Kalutara, and the defendant pleaded the dismissal of the previous action as res judicata,-
 
    Held, that the dismissal of the first action operated as res judicata and barred the second action.
 
    Hariram Mohanji v. Lalbai1 referred to and distinguished.
 
    1 (1902) I. L. R. 26 Bom. 637.

 
    APPEAL by the first defendant from a judgment of the District Judge of Kalutara (P. E. Pieris, Esq.). The facts are fully stated in the judgment.
 
    Bawa, for the first defendant, appellant.
 
    H. Jayewardene, for the plaintiff, respondent.

Cur. adv. vult.

September 14, 1908. WENDT J.-

 

The question in this case is whether the dismissal under section 418 of the Civil Procedure Code of a former action, on the failure of plaintiff to find the security ordered under section 417, is a bar to a second action for the same cause. The learned District Judge has held  that it is not. The facts are as follows. Both actions are by the endorsee against the maker and endorser of the same promissory note. In the former action, which was brought in the District Court of Colombo, the first defendant, who was resident in Kalutara, before answering, obtained an order directing the plaintiff to deposit Rs. 250 as security for his costs on or before June 26, 1907. This period was subsequently extended to July 10, but the deposit not having been made, the action was on that day dismissed with costs. No application was made for leave to withdraw from the action, nor did plaintiff apply for an order to set the dismissal aside. On January 29, 1908, the present action was commenced. In his answer, besides pleas on the merits, the first defendant pleaded that the dismissal of the Colombo action was a bar to the present action, and this was tried as a preliminary issue. The District Judge held, following Hariram Mohanji v. Lalbai,1 that the dismissal was not a bar, and first defendant has appealed.

 

Our law as to res judicata is to be found in section 207 of the Civil Procedure Code, which enacts that " all decrees passed by the Court shall, subject to appeal, when an appeal is allowed, be final between the parties; and no plaintiff shall hereafter be non-suited." To this section is appended the following '' explanation '': -'' Every right of property, or to money, or to damages, or to relief of any kind which can be claimed, set up, or put in issue between the parties to an action upon the cause of action for which the action is brought, whether it be actually so claimed, set up, or put in issue or not in the action, becomes, on the passing of the final decree in the action, a res judicata, which cannot afterwards be made the subject of action for the same cause between the same parties. "

 

" Decree " is defined in section 5 as " the formal expression of an adjudication upon any right claimed or defence set up in a Civil Court, when such adjudication, so far as regards the Court expressing it decides the action or appeal. "

 

The dismissal of the Colombo ease involved the adjudication that plaintiff could not maintain his action.    It was therefore a decree,

1 (1902) I. L. R. 26 Bom. 637. 

and a final decree, because so long as it remained in force nothing  more could be done in the action.    When it was pa

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