DE KRETSER J^-Amerasinghe and Weeratna.
1943Present: de Kretser and Wijeyewardene JJ.
AMAKASINGHE, Appellant, and WEERATNA, Respondent.
223—Dt C. Colombo, 13,463.
Ex-parte triol—Decree nisi entered on plaintiff’s affidavit—Failure to give noticeof decree nisi to Defendant—Civil Procedure Code, s. 179.
Where a case has been fixed for ex-parte trial decree nisi may be enteredon an affidavit filed by the plaintiff.
Where notice of a decree nisi which was entered after an ex-partehearing was not served on the defendant, who was aware of the decreenisi, and had moved to have it vacated,—
Held, that failure to serve notice of decree nisi on the defendant wasnot a fatal irregularity.
j^PPEAL from a judgment of the District Judge of Colombo.
H. W. Jayewardene for defendant, appellant.
No appearance for plaintiff, respondent.
Cur. ady. milt.
March 24, 1943. de Kretser J-—
Answer was due on February 13 and was not filed on that date. Thecase was then fixed for ex-parte trial. On February 25 the defendantfiled a petition and affidavit and a medical certificate arid moved for timeto file answer. In the interval a decree nisi had been entered and hemoved that decree nisi entered be vacated. So an inquiry was heldand the judge decided that the defendant had no excuse for his defaultand he dismissed his application. He thereupon made the decreeabsolute. It is impossible for us to say that the refusal to allow thedefendant to file answer was wrong.
Objection has been taken to the procedure followed in the case, viz.,allowing the decree nisi to Be entered on the affidavit filed by the plaintiff.It so happens that both my brother and myself are aware of the practicethat has prevailed for many years in the District Court of Colombo andwhich Was initiated by Justice Schneider wli4n he was District Judgeof Colombo. It is certainly a procedure which had not been questionedand it is supported by section 179 and section 427 .of the Civil ProcedureCode. Section 179 certainly indicates that the order should be made foreach particular case and that sufficient reason should be given, whereas
DE KRETSER J.—Amarasinghe and Weeratna.
the present facts seem to be based on some general order which wasmade. The only result of our giving effect to this objection would beto order a formal inquiry to be held. We do not think this rule of pro-cedure should be so strictly observed: As substantial justice has beendone and more especially as it is the result of an order which in effect thecourt makes from time to time, we do not think we should interfere withthe order of court. Even if we did it would not help the defendant.
The question next arises that though a decree nisi was entered, it hadnot been served on the defendant, and in spite of that fact the learnedjudge had made the decree absolute. The question is whether he shouldgo through the prescribed formality. The defendant knew of the existenceof a decree nisi and we think it would be an abuse of the process of theCourt to insist on this formality and it is our duty to see that such abusedoes not occur. We therefore think we need not interfere with theorder made.
The appeal is dismissed.
Wijeyewardene J.—I agree.
AMARASINGHE, Appellant and WEERATNA, Respondent