041-NLR-NLR-V-63-ALIM-Appellant-and-AMARASINGHAM-Respondent.pdf
BASNAYAKE, G.J.—Alim v. Amaraaingham
20T
1960Present: Basnayake, C.J., and T. S. Fernando, J.ALIM, Appellant, and AMARASINGHAM, Respondent
S. C. 30—D. G. Batticaloa, 1310
Decree nisi passed on account of absence of plaintiff—Power of Court to set it aside-on good cause shown—Date on which decree nisi becomes absolute—Computation.—Conditions precedent to entering of decree—-Civil Procedure Code, ss. 84,184, 188.
Even if good cause is shown for the absence of the plaintiff, a decree nisipassed in terms of section 84 of the Civil Procedure Code cannot be set asideonce it becomes absolute after the expiry of fourteen days from the date onwhich the Court passed the order. The date, for the purpose of computing,the fourteen days, is the date on which formal decree in terms of Form No. 21in the First Schedule to the Civil Procedure Code is in fact signed by the Judge.
Austin de Mel v. Kodagoda (1945) 46 N. L. R. 150, followed.
Before a Judge passes a decree nisi under section 84 he should expresslystate that the defendant (a) is present in person or by proctor, (b) does not.admit the plaintiff’s nlaim and (c) does not consent to a postponement.
Appeal from a judgment of the District Court, Batticaloa.
Ranganathan, with It. Rajasingham, for Plaintiff-Appellant.
Gooneratne, with C. Navaratnarajah, for Defendant-Respondents
Cur. adv. vult.
March 22, 1960. Basnayake, C.J.—
This is an appeal from an order refusing to set aside a decree nisipassed under section 84 of the Civil Procedure Code.
On 26th February 1957 the plaintiff instituted this action against,the defendant praying that he be declared entitled to an undividedthree-fourth share of a paddy field called “ Puliyadipothanai ” andthat the defendant be ejected therefrom. The defendant did not admitthe plaintiff’s claim and filed answer denying it and claiming compensationfor improvements in the event of the plaintiff being declared entitled,to it. The plaintiff thereupon filed a replication, praying that thedefendant’s claim for compensation be dismissed.
On 11th September 1957, the day fixed for the hearing of the action,the plaintiff failed to appear either in person or by Proctor, and theDistrict Judge made order “ Enter decree nisi dismissing plaintiff
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BASNAYAKE, C.J.—Alim v. Amaraaingham
action with costs ”. The record does not show whether the defendantwas present in person but it appears that his counsel and proctor werepresent.
On 13th September 1957 the plaintiff’s Proctor filed a petition andaffidavit and moved that the decree nisi be set aside. Notice was issuedon the defendant for loth October 1957. On that date both partieswere present and the learned Judge made the following order : “ Objectionsof the defendant on 12.11.57 ”. The defendant did not file his objectionson that day and he was given time till 3rd December 1957, when theywere filed, and the inquiry was fixed for 29th January 1958, on whichday the inquiry was commenced but not completed. It was adjournedfor 14th February 1958 and the order against which the appeal hasbeen taken was made on 7th March 1958. He held that there was goodcause for the absence of the plaintiff, but that he was powerless to setaside the decree nisi as it had become absolute as fourteen days hadexpired from the date on which the Court made the order. Althoughthe order “ Enter decree nisi dismissing the plaintiff’s action with costs ”was made on 11th September 1957, the decree in Form No. 21 was notsigned by the Judge till 25th September 1957. Section 84 of the CivilProcedure Code provides inter alia that “ if the plaintiff fails to appearon the day fixed for the hearing of the action, and if the defendant onthe occasion of such default of the plaintiff to appear is present in personor by Proctor, and does not admit the plaintiff’s claim, and does notconsent to postponement of the day for the hearing of the action, theCourt shall pass decree nisi in Form No. 21 in the First Schedule, or tothe like effect, dismissing the plaintiff’s action .”
In the instant case the minute the Judge made on 11th September 1957,the date fixed for the hearing of the case, is as follows :
“Case No. 1310/L11.9.57D. C. Batticaloa
Mr. Adv. Kanagasunderam instr. by Mr. Navaretnarajah for defdt.
Plaintiff and proctor—absent.
Enter decree nisi dismissing the plaintiff’s action with costs.
Intd. Jos. J. DavidA. D. J.
11.9.57 .”
Section 84, the relevant part of which is cited above, lays down certainconditions precedent to the entering of a decree nisi. They are :
if the defendant on the occasion of such default of the plaintiff
to appear is present in person or by proctor, and
does not admit the plaintiff’s claim, and
does not consent to postponement of the day for the hearing of
the action.
BASNAYAJFCE, C.J.—Alim v. Amaraaingham209
The record does not show that the learned District Judge addressed hismind to the requirements of the section before making the order of 11thSeptember 1957.
It is important that there should be a record of the fact that the orderwas made in accordance with the requirements of the section underwhich it is made. For, the power conferred by the section is conditional.
The main contention of learned counsel for the appellant is that therewas no decree nisi in the instant case as the decree had been signed asof the date on which the order “ Enter decree nisi ” was made, thoughin fact it was signed by the Judge on the 25th September—14 days after-wards. I am unable to agree that there is no decree, for if there is nodecree then there has been no refusal to set aside the decree and therecan be no appeal (section 87 (1) ). An appeal lies only from an orderrefusing to set aside the decree (section 87 (2) ).
If learned counsel’s contention is right he is not entitled to appeal.
Assuming that the conditions precedent were observed, and learnedcounsel does not contend that they were not, there is a valid decree enteredin the case. The main question that was argued is whether the date onwhich the order was made or the date on which the formal decree inForm Ho. 21 was in fact signed is to be taken for the computation ofthe fourteen days.
Now what the section requires is that upon the conditions thereincoming into existence the Court should obtain the prescribed form, fillit up, and sign it instantly. But the practice now seems to be for theCourt to make a minute in the journal “ Enter decree nisi ” and for theform to be written up by a clerk of the Court and signed by the Judgelater but dated as of the date on which the order was made. The materialwords of the section are c* the court shall pass a decree nisi in the FormNo. 21 in the First Schedule, or to the like effect, dismissing the plaintiff'saction, which said decree shall, at the expiration of fourteen days fromthe date thereof, become absolute ”. It appears from the words quotedthat the date for the purpose of computing the fourteen days is the dateof the decree in Form No. 21.
Now what is the date of the decree in Form No. 21? Is it the date onit entered nunc jpro tunc or the date on which it is actually signed ? Theanswer to that question depends on whether in the case of a decree inForm No. 21 the Judge has the power to give it a date other than theone on which he signs it. In the case of a formal decree drawn up andsigned in Form No. 41 as required by section 188 of the Civil ProcedureCode it is provided by that section that it should' bear the same date asthe judgment. I am of opinion that that requirement applies only toformal decrees drawn up to give effect to such judgments as are contem-plated in section 184 and not to a decree in Form No. 21 passed undersection 84. The Judge has therefore no power to give a decree in FormNo. 21 any date other than the date on which he signs it. The fourteen
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Podinona v. Ranaainghe
•days should therefore be computed from 25th September, the date onwhich the decree was in fact signed. The decree did not therefore becomeabsolute till the expiration of fourteen days from that date. But in theinstant case the appellant’s application was not heard and decided till7th March 1958 long after the expiration of fourteen days from the dateon which the decree in Form No. 21 was signed. The learned DistrictJudge was therefore right in refusing the application as the decree nisihad by then become absolute.
The view we have taken of the method of computing the 14 days isnot new and has been expressed in the case of Austin de Mel v. Kodogoda1.The learned District Judge should therefore have held the inquiry anddecided the matter before the expiration of 14 days from 25th September.The plaintiff has suffered by his failure to do so.
Judges of first instance should bear in mind the interpretation placedby this Court on section 84 and hold the inquiry and decide the appli-cation under section 84 (2) before the expiration of 14 days so that aplaintiff who, as in this case, has good cause to show will not bedeprived of his rights.
The appeal is dismissed with costs.
T. S. Fernando, J.—I agree.
Appeal dismissed.