Mohideen v. Marikar.
Present: Soertsz and Nihill JJ.
MOHIDEEN et al. v. MARIKAR.
133—D. C. Colombo, 9,042.
Decree nisi—Application by plaintiff to set aside made in time—Decree setaside after 14 days—Validity of order—Civil Procedure Code, s. 84(Cap. 86).
A plaintiff who seeks to set aside a decree nisi for default enteredagainst him under section 84 of the Civil Procedure Code must showcause within 14 days of the decree, which becomes absolute, automatically’,on the expiration of the period.
Annamaly CHetty v. Carron (3 C. L. Rec. 48) followed.
SOERTSZ J.—Mohideen v. Mcrikar.
^^PPEAL from an order of the District Judge of Colombo.
S. J. V. Chelvanayagam, for plaintiffs, appellants, and for petitioners.
N. Nadarajah (with him Renganathan), for defendants, respondents.
Cur. adv. vuIt.
February 19, 1940. Soertsz J.—
In this action the plaintiffs sued the defendants to recover a sum ofRs. 534.90 and interest. The defendant filed answer stating that onlya sum of Rs. 89.38 was due, and he prayed that the plaintiffs’ actionin excess of this sum be dismissed with costs. Trial was fixed for April 5,
On that day, the plaintiffs were absent when the case was called.The defendant was present and admitted that Rs. 89.89 was due, and thelearned Judge entered decree nisi dismissing the plaintiff’s action in excessof that amount with costs.
On April 6, 1939, the plaintiffs’ proctor swore an affidavit explaininghow it came about that neither he nor any one of his clients was presentwhen the case was called on April 5, and moved to have the decree nisivacated. On that motion, the trial Judge made order on April 13, 1939,
“ Notice defendant for 22. 5. 1939, and move The journal entry of May22, 1939, shows that the notice ordered on the defendant had been served.The matter was fixed for inquiry, and when the plaintiffs proctor’s motioncame up for discussion on July 25, Counsel appearing for the defendanttook the objection that by operation of section 84 of the Civil Procedure Code,the decree had become absolute and that there was no longer any questionof vacating the decree nisi. He relied on the case of Annamaly Chetty v.Carron1. Plaintiff’s Counsel asked for time to meet this objection and tofurnish authorities in regard to it. He was given this opportunity and hewas heard on a later day, and the learned Judge made order upholdingthe objection and refusing the plaintiff’s application. The appeal is fromthat order.
When, at the hearing of the appeal, I was informed of the decisionwhich compelled the trial Judge to refuse the application, my immediatereaction was a feeling of surprise for it seemed to me that a great burdenwas imposed on the plaintiffs in this case, and on plaintiffs generally,if they are required by law to give notice to the defendants and to showcause for the decree nisi being vacated, all within fourteen days of itsbeing entered. But a careful examination of section 84 convinces methat the ruling in the case I have, referred to contains a correct interpreta-tion of section 84 of the Code, if I may say so with great respect. Aspointed out in that case, the decree nisi becomes absolute automaticallyat the expiration of fourteen days, .and once that period elapses, a plaintiffcan obtain no relief under that section of the Code. The word “ previously ”occurring where it does, makes that quite clear. At one stage of theargument, I inclined to the view that what a plaintiff was required to dowithin fourteen days was to begin proceedings to have the decree setaside, that is to say, I felt that “ show good cause ” must be understood tomean to make out a good prima facie case for setting aside the decree nisiby submitting an affidavit, for instance, as was done in this case. But the
>3 O.L. Bee. dS.
Kudhoos v. Joonoos.
latter part of section 84 which reads “in case such cause being shown theCourt shall -Set aside the decree” debars me from construing^the samewords when they occur in the earlier part of the section in the manner Isuggested. It seems quite clear that the setting aside of the decree mustbe obtained, if at all, by good cause being shown, not merely by good causebeing attempted to be shown, within fourteen days. In that view of thematter, the appeal fails and must be dismissed with costs.
In regard to the application for restitutio in integrum, I find it impossibleto entertain it, for to do so would be to set at nought a clear requirementof the law of Civil Procedure.
Nthtt.t. J.—I agree.
MOHIDEEN et al. v. MARIKAR