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Present : De Sampayo and Dalton JJ.
SOCKALIXGHAM CHETTY v. MUTTIAH PCLLE.
54—D. G. Colombo, 13,869.
Summons—Action by way of summary procedure—Order to appear anddefend vcithin ten days—Mistake in summons issued.
Where, in an action by way of summary procedure, the Courtordered summons on the defendant to appear and defend withinten days of the service, but the summons itself, by a mistake,required him to appear within seven days; and where judgmentwas entered against him before the expiry of ten days.
Held, that the defendant was not entitled to have the judgmentset aside as of right.
-v action on a promissory note by way of summary procedure
under chapter LIII. of the Civil Procedure Code. The DistrictJudge, accepted the plaint and ordered summons on October 25requiring the defendant to appear within ten days of the serviceof the summons. The special form of summons, however, whichwas issued provided that the defendant Should appear and obtainleave to appear and defend within seven days of service of summons.The plaintiff obtained judgment on November 12, 1924, less thanten days after the service of the summons. On January 5, 1925,the defendant appeared and moved to vacate the decree on theground that the judgment had been entered prematurely. TheDistrict Judge refused the application.
Cooray, for defendant, appellant.
Samarawickreme, for plaintiff, respondent.
May 11, 1925. De Sampayo J.—
This is an action upon a promissory note. The plaintiff, whenhe instituted the action, adopted the summary procedure on liquidclaims provided in chapter LIII. of the Civil Procedure Code. TheDistrict Judge accepted the plaint and ordered summons on October25, by which the defendant was required to appear within ten daysof the service of the summons. The special form of summons,however, which Was issued, provided that the defendant shouldappear and obtain leave to appear and defend within seven days ofthe service of summons. It is obvious that the defendant had at
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Socka-• linghamCketty v.MuttiahJPutte
this stage of the matter no knowledge of the order of the Courtproviding for teh days and not for seven days. Anyway the defendantdid not appear within the seven days or within the ten days of service,but the plaintiff relying upon the form of summons moved for andobtained judgment on November 12, 1024, that is to say, less thanten (lays, but more than seven days after the service of summons.Later on January 5, 1925, the defendant appeared with a petitionand affidavit, and moved that the decree entered on November 12be set aside, the ground for this motion being that in his view thejudgment had been entered prematurely, before the expiration often days of the service of summons as provided in the originalorder of Court. The District Judge, however, refused this motion,and appeared to say that his original minute of October 25 was amistake, he having intended in fact to mention seven days as theperiod within which the defendant was to appear. I sav so, becauseI find the District Judge when the discussion took place altered hisrecord from ten days to seven days, but after all the Code does not laydown any period in respect of summary procedure on liquid claimsfor the defendant to appear. It is entirely left to the Court in thesummons itself, to provide for the time within which the defendantwas to appear,, the governing fact in this procedure being the formof special summons and not the mere minute of the Court’s actionin the first instance. The defendant had the summons, and he wasnot misled by any mistake or other error which appeared in theoriginal record. Mr. Cooray for the defendant has cited to us asauthority the case of Anlaby v. Pnetoriovs. 1 That case relatedto the analagous procedure in the English rules in the case ofendorsed summons, but theirs is distinct from the Ceylon procedure.The rule of Court itself provided that the defendant was to appearwithin ten days of the service of the statement of claim. In thatparticular case, however, the judgment was entered by Court beforethe expiration of ten days from the delivery of the statement ofclaim. Consequently, the Court held that in entering judgmentas it did, the Court acted without jurisdiction and contrary to theexpress provision of the law. The case therefore is quite distin-guishable from the present case. Our law, as I have alreadyindicated, does not lay down a particular time which should beallowed to the defendant in all cases to appear and defend. I cansay from my own previous experience that in the Colombo DistrictCourt seven days is the usual' time allowed, unless for some special.reason a longer time is required. In the present case, as I havesaid, the Court apparently wished to act according^to the usualpractice of that Court and made a slip in entering the order, butin the summons the practice was strictly adhered to, and it wouldappear that the Court did really intend to act in terms of thesummons which was actually issued. In my opinion there is no
1 20 Q. B. D. 754.
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reason to hold that the defendant is entitled'es debito justiiiceto have this judgment set aside and the case' opened up for hisdefence. He may, indeed, have some other ground for extensionof time which, if he put before the District* Court at the propertime and proper form, probably would have been considered bythe Court, but at present it seems the District Judge is' right, andthe judgment should be affirmed with costs.
De Samfayc *
Sooka-lingham■ Chetty v.Muttiah*Pulle
Dalton J.—I concur.