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Present: Fisher C. J. and Garvin J.
CONDERLAG v. MUTTIAH PULLE.
146—D. C. Colombo, 24,928.
Appeal—Decree absolute for default—Defendant's appearance to slumcause—Civil Procedure Code, s. 87.
A decree nisi which has been made absolute after the defendanthad appealed on the day appointed to show case and had failedto excuse his default is appealable.
Ceylon Gemming and Mining Company v. Symons 1 followed.
PPEAL from an order of the District Judge of Colombo.
Tisseverasinghe, for defendant, appellant.
Ferdinands (with Wendt), for plaintiffs, respndents.
September 21, 1928. Fisher C.J.—
In the case the appellant seeks to set aside under section 87of the Civil Procedure Code a decree absolute entered againsthim on March 5, 1928. The point was taken that no appeal layagainst such a decree. The question of the right construction
' 2 N.L. R. 228.
Vmn C. J
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to be put on the words “ decree absolute for default ” at the begin-wing of section 87 of the Civil Procedure Code has been discussedmore than once by this Court. I strongly incline to the opinionthat the true construction is that which was given it by Bonser C. J.in the Ceylon Gemming and Mining Company, v. Symons,1 namely,that those words mean "that the decree is made absolute inconsequence of the defendant not having attended to show causeagainst the decree being made absolute, on notice. ’’ There are,however, decisions of this Court in the contrary sense. Butassuming that the point is open and that an appeal lies, I do notthink the appellant should succeed. The pleadings in this case wereclosed on October 14,1927. The order nisi was made on December15, 1927. Yet, when the case came up for the defendant to showcause on March 5, 1928, the appellant merely attempted to showthat he had a good reason for not being present when the decree nisiwas granted. No attempt appears to have been made to show, orto seek to show, that there were any merits in his case, nor was anysuch attempt made in this Court. Under those circumstances theinference is that the appellant has no defence to the claim of theplaintiff.
The judgment on the claim therefore will stand, and the appealis dismissed with costs.
For myself, I am in complete accord with the view that thewords " decree absolute for default ” in the opening clause ofsection 87 which disallows a right of appeal must be construedas they were construed by Bonser C.J. in Ceylon Gemming andMining Co. v. Symons (supra) and that a decree nisi which hasbeen made absolute after appearance of the defendant on the dayappointed to show cause but because he failed to satisfy the Courtthat there were reasonable grounds for his original default, isa final order and appealable as of right. But it is of no greatimportance to a defendant in such a position whether an appealis allowed from the decree absolute or from what is referred to asthe refusal to set aside the decree nisi so long as he is permittedto approach this Court by way of appeal to obtain relief from afinal judgment entered against him.
In the case before us the defendant has made no serious attemptto purge his default, and I agree that his appeal should be dismissedwith costs.
> 2 N. L. R. 228.
CONDERLAG v. MUTTIAH PULLE