SOERTSZ J.—de Saram v. de Silva.
1940 'Present: Soertsz and Nihill JJ.
DE SARAM v. DE SILVA et al.
C. Matara, 11,2531
Decree nisi—Absence of plaintiff—Application to set aside—Time limit—Parti-tion act—Civil Procedure Code, s. 84.
A Court has ho power to enlarge the period given by section 84 of theCivil Procedure Code within which a plaintiff is bound to show causeagainst'a decree nisi entered against him being made absolute.
The decree nisi becomes absolute after fourteen days by mereeffluxion of time.
Section 84 of the Civil'Procedure Code applies to partition action.
HIS was an application for revision of the order of the DistrictJudge of Matara-
H. A. Chandrasena, for plaintiff, petitioner.
S. W. Jayasuriya, for third and eighth defendants, respondents.
Cur. adv. vult.
February 21, 1940. Soertsz J.—
I agree with petitioner’s Counsel that his client is in a hard case here,and would give him some relief if I could, but I am bound hand and footby the law.
There can be no doubt whatever that section 84 of the Civil ProcedureCode applies to all actions in the District Courts, including actions for thepartition of lands, mutatis mutandis, of course, for the purpose of givingeffect to the provisions of the Partition Ordinance. When, therefore, theplaintiff-petitioner failed to appear in Court on the day fixed for the trialof the action, and many of the defendants were present, the District Judgeacted rightly, when he entered decree nisi. But' when it came to thedrawing up of the decree nisi, a printed form was used which reads “ this
action coming on for disposalon August 30, 1938, being the
day fixed for the hearing of this action, and the tenth defendant being119 N. L.'tH. 289.*16C.L.W.41.
SOERTSZ J.—de Saram v. de Silva.
present and the plaintiff not appearing either in person or by Proctor, it
is decreed that the action may be dismissedunless sufficient
cause is shown to the Court to the contrary v/ithin one month of datehereof”. This decree was served on the plaintiff, and it is quite clearthat it misled him into the belief that he had one month’s time withinwhich to show cause against the dismissal of his action. In that view ofthe matter, Mr. Buhari for the plaintiff filed affidavit from plaintiff
together with a medical certificateand moved to notice
defendants to show cause why the decree entered should not be vacated,and the case fixed for trial. But, in the interval between August 30 andSeptember 22, 1940, the decree entered on August 30 had been madeabsolute on the motion of the Proctor appearing for the third and eighthdefendants, who submitted to the Court that fourteen days having elapsed,the decree of August 30 should be made absolute. The Court, undersection 84, made the decree absolute. That was done on September 14,1938. Notwithstanding the fact that decree absolute had been enteredajtd had swallowed up the decree nisi, the plaintiff’s application to havethe decree nisi entered on August 30, 1938, set aside took its course, andinquiry into that application was held on December 19, 1938, and onJanuary 12,1939, and order was made by the District Judge on
January 23, 1939, refusing the plaintiff’s application. It is this orderthat the plaintiff now asks us to deal with in the exercise of our powersof revision.
The^e are insurmountable difficulties besetting this application. Sec-tion 8^ provides for the entering of a decree nisi due to become absoluteby the mere effluxion of time, by the lapse of fourteen days, unlesspreviously the plaintiff has succeeded, with notice to the defendants, inshowing cause for it to be set aside. If fourteen days run without theplaintiff doing this, the decree becomes absolute without anyone movingso much as a finger in the matter. It does not seem necessary to enter upa decree absolute. The fact that the decree nisi served on the plaintiff,gave him thirty days time to have the decree set aside is of no legalconsequence. No Court had the power to override the lav/. In point offact, section 84 does not require the decree nisi entered under it to beserved on the plaintiff. The plaintiff is the dominus litis. He is supposedto know the,date of the trial, and to know that in his absence, the lawwould take its course, and he is left to come in himself and obtain relief ifhe could within fourteen days. The position is different in the case of adefendant’s absence. Section 85 requires notice to be given to him thata decree nisi has been entered and he is given time to show cause. Thereis no statutory period fixed for the decree passing from a decree nisi intoa decree absolute. This is the view taken in the case of Annamaly Chettyv. Carron and with that view I find myself in complete and respectfulagreement.
The next point to be noticed is that section 87 of the Civil ProcedureCode does not give a plaintiff, in whose case decree has become absoluteby the operation of section 84, a right of appeal.
It is ih view of that disability thSt the plaintiff now comes before us asa petitioner asking for revision. But our powers in revision, though large
13 C. r. Her. 4S.
HOWARD C.J.—Pitchapullai v. Leembruggen.
are not unlimited. Section 753 of the Civil Procedure Code enacts thatthe Supreme Court in revision may do what it might have done, ifthere had been an appeal, if it is not satisfied “ as to the legality or proprietyof any judgment or order Now there can be no question of the legalityor propriety of a decree entered by the law itself, so to speak, and thatfact ousts the revisionary jurisdiction of this Court. In this case thereare other circumstances that must deter us from entertaining an appli-cation for revision, for instance, the important circumstance that that inthe course of the law taking effect, third parties have acquired rights, forthe record shows that in execution of that decree the plaintiff’s interestswere sold on the order for costs made against him and were bought byparties who are not before us on this application.
For these reasons, I am of opinion that this application must be refusedwith costs which I fix at Rs. 31.50.
NmrLL J.—I agree.
DE SARAM v. DE SILVA et al