908IVA 8UPRAMANIAM, J.—Board of Directors of Ceylon Savings Bank v.
1968 Present: Siva Supramanlam, J., and Tennekoon, J.THE BOARD OF DIRECTORS OF CEYLON SAVINGS BANK,Appellant, and R- NAGODAVITANE, Respondent
C. 19165—D. C. Colombo, 9255(MB.
Hypothecary action—Failure of defendant to file answer on due date—Omission topurge default—Incapacity of Court to grant extension of time to pay the mortgagedebt—Ex parte hearing of case—It need not be on date of defendant's default—Mortgage Act (Cap. 29), ss. 48 (I), 69—Civil Procedure Code, as. 85, 87 (I).
A defendant In a hypothecary action who absents himself on the date onwhioh he is due to file answer is not entitled thereafter, without purging hisdefault, to obtain relief Under the proviso to section 48 (I) of the MortgageAct. In Buch a case, the Court is not empowered to entertain any applicationfor relief from the defendant until the ex parte trial has been held and decree hasbeen entered in terms of seotion 85 of the Civil Procedure Code.
Seotion 85 of the Civil Procedure Code does not require that the Court shallprooeed immediately to hear a case ex parte when the defendant is in default inrespeot of any matter mentioned therein. The words “ shall proceed to hearthe case ex parte " mean that the next step the court shall take is to hear the caseex parte. The hearing need not necessarily be on the same day.
AlPPEAL from a judgment of the District Court, Colombo.
H. W. Jayewardene, Q.G., with D. 8. Wijewardene, for the plaintiff-appellant.
N.Kcuirajah, for the defendant-respondent.
Cur. adv. twit.
June 26,1968. Siva Sufbamaxiam, J.—
The question that arises for decision in this appeal is whether adefendant in a hypothecary action who had absented himself on thedate on which he was due to file answer is entitled thereafter, withoutpurging his default, to obtain relief under the proviso to s. 48 (I) of theMortgage Act (Cap. 89).
The Board of Directors of the Ceylon Savings Bank instituted thisaction for the enforcement of a mortgage bond granted by the defendantin itB favour. In terms of the bond the principal along with the acoruedinterest was payable on demand. But the defendant was permitted bythe plaintiff to pay the principal amount in fifteen equal annual instal-ments, provided each instalment was paid on the specified date. Thedefendant, however, made default in the payment of the instalments andthe plaintiff claimed the full outstanding balance in terms of the bond.
SIVA STJPRAMANIAM, J.—Board of Directors of Ceylon Savings Bank v. 91
In answer to the summons served on him by substituted service, as theFiscal was unable to effect personal service, the defendant appeared by aFtoctor and moved for time to file answer. He was allowed time till20th May 1965. He foiled to file answer on that date and was allowedfeather time till 24th June 1965. On that date too the answer was notfiled and the defendant as well as his Proctor were absent. The Court,thereupon, fixed the case tor ex parte trial on 5th August, 1965.
The defendant appeared in court on 5th August 1965 and tendered anaffidavit in which he admitted the claim subject to certain paymentsmade by him to the plaintiff after the institution of the action. He setout no grounds whatsoever for his default on the earlier date, but prayedthat he be granted six months’ time to pay the arrears of the instalmentsand also be allowed to pay the balance in annual instalments as agreedupon between him and the plaintiff at the time of the execution of the_ bond. The prayer for relief was presumably under the proviso to 8.48(1)of the Mortgage Act. The plaintiff objected to the defendant being hearduntil he had purged his default but the learned trial judge found thattire court was entitled to consider his application before the ex parte trialwas held and granted the defendant the relief he had prayed for. Heerroneously stated, however, that the instalments ordered were“ according to the terms of the bond The plaintiff appeals againstthat order.
In regard to the question whether, after a case has been fixed for trialex parte by reason of the default of appearance of the defendant, thedefendant is entitled to appear and purge his default before the ex partetrial is held, conflicting views have been expressed by this court. InPerera v. Alvris1H. N. G. Fernando J. (as he then was) and Sinnetamby,
J.decided that the reasons for the default of appearance may be con-sidered by the court before the ex parte trial is held. Bnt in the latercase of SaUy v. Noor Mohammed 2 Basnayake C.J. and G. P. A. Silva J.disagreed with that view and declined to follow that decision. Thatquestion, however, does not arise for consideration in the instant caseas the defendant at no stage made any application to purge his default.
It was argued by counsel for the defendant that, despite the defeultof the defendant on the date fixed for the filing of his answer, the court isentitled to grant him relief under the proviso to s. 48 (1) of the Mortgage.Act, so long as no decree has been entered. S. 48 (I) provides asfollows:—
“ Where in a hypothecary action the court finds that the mortgageought to be enforced, the decree shall, in relation to the mortgagedland, order that the land shall be sold in default of payment, within aperiod of two months of the date of the decree, of the moneys duounder the mortgage :
1 (1957) 60 N. L. B. 260.
• (1964) 66 N. L. B. 176.
92 SIVA SUPRAMAN1AH, J.—Board of Directors of Ceylon Savings Bank v.
Provided, however, that the oourt may, in its discretion andsubject to such conditions including the making of specified paymentson specified dates as it thinks fit, on application made in that behalfbefore the entry of the decree and after consideration of the circum-stances of both the mortgagor and mortgagee, fix, in lieu of the aforesaidperiod of two months, such longer period as the court may considerreasonable.”
It should be noted that, under the above proviso, the court is empoweredto grant the relief, not ex moro motu, but on application made in thatbehalf by the defendant.
S. 69 of the Mortgage Act makes it clear that s. 85 of the Civil ProcedureCode is applicable to hypothecary actions. S. 86 (omitting parts notrelevant for the point under consideration) reads as follows:—
“ If the defendant fails to appear on the day fixed for his appearanceand answer, or if he fails to appear on the day fixed for the subsequent
filing of his answeror if the defendant shall fail to file his-
answer on the day fixed therefor, and if on the occasion of such defaultof the defendant the plaintiff appears, then the court shall proceed to
hear the case ex parte and to passin the case of a hypothecary
action, a decree absolute”
This section does not require that the court shall proceed immediatelyto hear the case ex parte. One of the Dictionary meanings of the word“ proceed ” is “ make it one’s next step The words “ shall proceedto hear the case ex parte ” therefore mean that the next step the court shalltake is to hear the case ex parte. The hearing need not necessarily be on thesame day.
The direction, however, in regard to the next step is imperative and thecourt is not empowered to entertain any application for relief from thedefendant until the ex parte trial has been held and decree has been enteredin terms of s. 86 of the Civil Procedure Code. I agree, with great respect,with the observation of Basnayake C.J. in Sally v. Noor Mohammed (supra)that “ the court has no power to take a course of action other thanthat prescribed in s. 85 of the Civil Procedure Code when the defendantfails to appear on the day fixed for the subsequent filing of hisanswer
The learned judge was wrong in considering the affidavit tendered bythe defendant on 5th August 1965 before he heard the case ex parte andpassed a decree absolute as required by s. 85 of the Civil Procedure Code.Had a decree absolute been entered in terms of that section, the defendantcould not have made an application for relief under s. 48 (1) of theMortgage Act until he had that decree vacated by making an applicationunder s. 87 (1) of the Civil Procedure Code and satisfying the court thatthere were reasonable grounds for the default upon which the decree
H. N. G. FERNANDO. CJ.—Podiopmihamy v. Food and Price Control 03
absolute was passed. As stated earlier, the defendant in this case madeno attempt whatsoever to purge his default and the court had thereforeno power to grant him relief under s. 48 (l)-of the Mortgage Act.
I allow the appeal and set aside the judgment and decree of the lowercourt and direct that a fresh decree absolute be entered in the formNo. 22A in the First Schedule to the Civil Procedure Code or to the likeeffect as required by s. 86 of the Code.
The appellant will be entitled to its costs in both courts.
Tennekoon, J.—I agree.
THE BOARD OF DIRECTORS OF CEYLON SAVINGS BANK, Appellant, and R. NAGODAVITANE,