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Present: Lascelles C.J.MUDALIHAMY v. PUNCHI BANDA.15—C. R. Gampola, 219.Action on a promissory note—English procedure not introduced by Ordi-nance No. 5 of 1852—Judgment by default against one of severalmakers of a note is no bar to proceeding against the other defendants.
Section 2of OrdinanceNo. 5 of 1852does- notintroduce anypart
of the English procedure into actionson billsof exchangeand
promissorynotes. Theseactions. likeothers.are regulatedby
the Civil Procedure Code.
A judgment by default against one of several joint makers of anote doesnot prejudicethe plaintiff’sright toproceed withthe
action against the other defendants. ' 1
1 (1908) 11 N. L. R. 171.
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fJlHE facts appear from the judgment.
A. St. V. Jayewardene, for the plaintiff, appellant.—Even accord-ing to the English law now in force (see Order XIII., Buie 4) a plain-tiff who sues the makers of a joint promissory note may continue anaction against one defendant, although judgment by default hadbeen entered against the other. But there is nothing in the CivilProcedure Code which prevents an action such as this being main-tained even after judgment by default had been obtained againstone defendant. English' rules of procedure are not in force in Ceylon.Counsel referred to Mamel htaky v. Sinnatamby,1 McLeod v.Power,2 Babapilla v. Raja Ratnam.3
No appearance for the respondent.February 28, 1912. Lascelles C.J.—
Cur. adv. vult.
The plaintiff in this case sues as the endorsee of a note givenby the defendant. On October 21, 1911, summons was reported’served on the first defendant, and the second defendant was reportednot to be found. The first defendant being absent, order was madeentering judgment against the first defendant, and > striking the-action off as against the second defendant.
On October 3 the order against the first defendant was vacated,and he was allowed to file answer. On October 20 the partieswere present, and the second defendant, on whom notice had beenserved, was allowed to file answer before October 31. On the 31stthe second defendant was absent, and had not filed answer. There-upon judgment was entered against her by default. On December19 the learned Commissioner held that the note was a joint one,and that the judgment which already had been entered against thesecond defendant was a bar to the claim against the first defendant,and the action was accordingly dismissed as against her.
Now, even if section 2 of the Ordinance No. 5 of 1852 be construedso as to make the English rules of procedure as well as the Englishlaw applicable to actions on promissory notes, the judgment couldnot be supported, for by Order XIII., Buie 4, of the Buies of theEnglish Supreme Court the plaintiff is allowed, where one of severaldefendants fail' to appear, to enter final judgment against thosewho have not failed, without prejudice to his right to proceed with-his action against those who have appeared. But I think thatsection 2 of the Ordinance No. 5 of 1852 cannot be construed asintroducing any part of the English procedure into actions on billsof exchange and promissory notes. These actions, like others, areregulated by the Civil Procedure Code. There ia no provision in the
I (1910) 13 N. L. R. 284.* (1898) L. R. 2 Ch. 295.
* U900) 5 N. L. R. 1.
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Civil Procedure Code to the effect that a Judgment by defaultagainst one of several joint defendants prejudices the plaintiff'sright to proceed with the action against the other defendants.Section 90 of the Civil Procedure Code provides that where thereare several defendants the Court shall not be obliged to pass adecree for default against a defendant for failing to apppear providedthat one defendant at least appears.
The decree against the second defendant in this case appears tohave been entered at the instance of the Commissioner, and not atthe instance of the plaintiff; and if would be unreasonable andunfair that the plaintiff should be deprived of his remedy againstthe first defendant, because the Judge, in a matter within hisdiscretion, elected to order judgment to be entered against thesecond defendant.
I set aside the judgment dismissing the action against the firstdefendant, and direct the action to proceed against him in the.ordinary course.
The appellant is entitled to the costs of the appeal.
Set aside and sent back.
MUDALIHAMY v. PUNCHI BANDA