Amarasekera v Somapala (Somawansa, J.)
RAJENDRACOURT OF APPEALDISSANAYAKE, J.
A. NO. 1283/96 (F)
C. GALLE LV11592NOVEMBER 4, 2003
Civil Procedure Code – Sections .86(2), 88(1), 88(2), 754(1), (2) and (5) – Isthe Order setting aside the ex-parte Judgment – A Judgment or an order hav-ing the effect of a final Judgment – Direct right of appeal or Leave to Appeal?- Order approach and the application approach.
(i) The plaintiff-appellant has a right of final appeal under section 88(2)of the Code against the Order of the trial Judge setting aside the exparte Judgment entered in the case.
APPEAL from the Judgment of the District Court of Galle
' Sri Lanka Law Reports
 3 Sri L.R
Cases refered to:
Siriwardane v Air Ceylon 1984 1 Sri LR 286
Ranjith v Kusumawathie – 1998 3 Sri LR 232
A.S.Sangarapillai & Brothers v Kathiravelu – 2 Sirkantha LawReports 99
Peter Singho v Wydeman – 1 Srikantha Law Reports 88
Hemasiri Withanachchi for plaintiff-appellantAnanda Kasthuriarachchi for defendant-respondent.
December 19, 2003DISSANAYAKE, J.
A preliminary objection had been taken by the defendant-respondent regard to the propriety and validity of the plaintiff-appel-lant exercising a right of final appeal against the order of learnedDistrict Judge of Galle setting aside the ex parte judgment enteredby the District Court earlier.
Learned counsel appearing for the defendant-respondent con-tended that the order of the learned District Judge setting aside theex parte judgment entered earlier was not a judgment or an orderhaving the effect of a final judgment as defined in section 754(5) ofthe Civil Procedure Code. Therefore it was contended that in termsof section 754(2) of the Civil Procedure Code the plaintiff-respon-dent has no direct right of final appeal. He has to obtain leave ofcourt to tender an appeal in terms of section 754(2).
Learned Counsel for the defendant-respondent contended thatthe following 2 tests have been followed by our courts in order toascertain whether the order vacating the ex parte judgment is anorder having the effect of a final judgment:-
Dharmasena v Rajendra(Dissanayake, J.)
He cited the judgment of His Lordship Sharvananda, CJ., inSiriwardane v Air Ceylod1) and a few other English and a few otherjudgments by our courts where he contended the order approach testwas utilized.
He cited the decision of Dheeraratne, J. in Ranjith vKusumawathid2) and a few English decisions where he contendedthat the application approach test was utilized.
In my view since there is clear provision in the Civil ProcedureCode which spells out clearly the rights of parties to tender a finalappeal, if they are dissatisfied by an order of the District Court settingaside or refusing to set aside an ex parte judgment, it is necessary forthis court to embark on the aforesaid tests as contended by learnedcounsel for the plaintiff-respondent.
Section 88(2) of the Civil Procedure Code provides:
(2) The Order setting aside or refusing to set aside the judgmententered upon default shall be accompanied by a judgment adjudicat-ing upon the facts specifying the grounds upon which it is made, andshall be liable to an appeal to the Court of Appeal.
It is interesting to note that the facts of A.S.Sangarapillai &Brothers v Kathiraveld3> where the facts were very similar to theinstant case, Siva Selliah, J. at-103 observed:
“In the instant case I am of the view that the determination of theDistrict Judge made on 01.09.83 setting aside the judgmententered against the defendant for default of appearance due tonon-service of summons and allowing him to file answer is anorder made under section 88(2) of the Civil Procedure Code andthat due to the special provision contained therein and the in-builtsafe guard provided thereby and considering the tenor of thejudgments of Vythilingam, J., and Abdul Cader, J., andO.S.M.Seneviratne, J., quoted above, I hold that a direct appealis provided for in the circumstances and that an application byway of leave to appeal does not arise.”
Further it is to be observed that in the case of Peter Singho vWydeman,W Abdul Cader, J. at 89 observed;
'To give the word “default” the restricted meaning contended forwould be to place the defendant who had received summons
Sri Lanka Law Reports
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and kept away from Court at an advantage over a defendant whohad not received summons altogether.”
It may be noted that section 88(2) has no reference expressly tosection 86(2).”60
At page 90 Abdul Cader, J. stated further, “when a defendant com-plains that summons had not been served on him and neverthe-less a decree had been entered against him, he challenges thefoundation of the default decree. He moves the Court to reverseits finding that he was in default to hold with him that summonswas not served on him. It is to be noted that he makes applica-tion after service of the decree against him for default. ‘The cor-responding word in the Code of Indian Civil Procedure Code isnon-appearance (e.g.R7) which is the sense in which the word“default” has been used in our Code. I am of the view that when 70a defendant attempts to satisfy Court that the decree enteredagainst him for “default” is not based on valid evidence for thatfinding that summons was served on him, he falls within theambit of section 86(2). I have therefore, come to the conclusionthat section 86(2) would apply. I do not agree with the view of theCourt of Appeal that section 86(2) is confined to cases where thedefendant is in default is after summons have been admittedlyserved on him.”
Therefore I am of the view that the plaintiff-appellant has a right offinal appeal under section 88(2) of the code against the order of the 80learned District Judge setting aside the ex parte judgment entered inthe case.
Under the circumstances, it is not necessary to go into the ques-tion whether the order made by the learned District Judge is an “order”or a “judgment” in view of section 88(2) read with of section 754(1) ofthe Code.
Hence, the preliminary objection of the defendant-respondent can-not be sustained. I overrule the said preliminary objection and fix themain matter for arguments.
SOMAWANSA, J.I agree.
Preliminary objection overruled.
Matter fixed for argument.
DHARMASENA v. RAJENDRA