Res judicata and same cause of action were confined by a default dismissal, allowing a later suit on a new gift deed.

A dismissal for default under Section 102 of the Civil Procedure Code, Act X of 1877 does not operate as res judicata against the defendant. Read with Section 103, the bar to a fresh suit arises only where the later proceeding is founded on the same cause of action as the earlier dismissed suit. The cause of action is determined by the facts pleaded in the plaint, not by the defence or relief sought. Because the earlier plaint referred only to a threatened sale or mortgage, while the later suit relied on a subsequent gift deed that did not then exist, the later suit was treated as based on a new and distinct cause of action.

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Issues: Whether dismissal of an earlier suit under Section 102 of the Civil Procedure Code, Act X of 1877 barred the present suit on the ground of res judicata or because it arose from the same cause of action.

Analysis: A dismissal under Section 102 was held not to operate as res judicata in favour of the defendant. Read with Section 103, it disabled the plaintiff from bringing a fresh suit only in respect of the same cause of action. The cause of action was treated as the facts set out in the plaint and not the defence or relief claimed. The earlier plaint complained only of an intended alienation by sale or mortgage, whereas the present plaint was based on an actual gift deed executed later. Since that gift deed did not exist at the time of the earlier dismissal, the later suit was founded on a new and distinct cause of action.

Conclusion: The prior dismissal did not bar the present suit. The appeal failed and the decree under challenge was affirmed.

Ratio Decidendi: A dismissal for default under Section 102 of the Civil Procedure Code, Act X of 1877 does not create res judicata against the defendant, and the bar under Section 103 applies only where the later suit is founded on the same cause of action already dismissed.

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