045-NLR-NLR-V-64-D.-DHARMADASA-Appellant-and-PIYADASA-PERERA-Respondent.pdf
Dharmadasa d. Piyadasa Perera
249
Present: Gunasekara, J., and T. S. Fernando, J.
DHARMADASA, Appellant, and PIYADASA PERERA,
Respondent
S. C. 71 (.Inty.) of 1959—D. C. Colombo 742jZ
Res judicata—Decree for default—Can such a decree operate as res judicata ?—Meaning of word “ decree”—Civil Procedure Code, as. 84, 85, 86, 188, 192,206, 207.
A decree absolute for default that has been passed against a defendant by aDistrict Court is one to which section 207 of the Civil Procedure Code applies• and can, therefore, operate as res judicata in a subsequent action between thesame parties in respect of the same subject-matter.
Herath v. The Attorney-General (1958) 60 N. L. R. 193, discussed.
PPEAL from an order of the District Court, Colombo.
H. W. Jayewardene, Q.C., vcith L. C. Seneviratne, for the defendant-appellant.
S. C. E. Rodrigo, for the plaintiff-respondent.
Cur. adv. wit.
250
GUNaSEKAHA, J.—Dharmadasa v. Piyadaia Pf.rc.ra
August 4, 1961. Gunasekara, J.—
The question that has oeen argue l in this appeal is whether a decreeabsolute for default that has been passe.-! against a defendant by a district-court is one to which section 207 of the Civil Procedure Code applies-
The subject of the present action is the piece of land depicted as Lot 1in the plan X, In an earlier action between the same parties, caseNo- 4S94,L of the District Court of Colombo, instituted on 27th March,1947, the appellant sued the respondent tor a declaration of title, to thesame piece oi land, for ejection of the respondent from it and for otherconsequential relief. The property had formed part of the estate of therespondent’s father Gabriel Perera, who had lied leaving a last will bywhich he appointed his widow Egodage Catherine Perera his executrixand which was in due course admitted to probate- The appellant claimedin case No. 4S94,L that the land had been sold by Catherine Perera asexc- rtrix in cider to pay the debts of the estate and that the appellanthad purchased it from her upon two deeds, No. 67 of 24th May,.1946 andNo. SS of 29th November 1946, attested by Mr. Q. M. R. Jayarnanne,notary public, and she alleged that the respondent was unlawfully inpossession of it. The respondent hi his answer denied the appellant’sclaim. He also averred that
“ the Last Will referred to in the plaint contained the provision :f I give, devise, and bequeath all my- immovable property to my wifeEgodage Catherine Perera subject to the condition that she shall notbe at iibe ty to sell mortgage or gifo or otherwise alienate the saidproperty or any portion thereof, but she shall have the right only tohold and po sess and enjoy the profits and income therefrom duringher l.fetime and on her death the same shall devolve on MagalagePiyadasa Perera ’ (the respondent).”
He failed to appear on the day fixed for the trial, which was the 24thof February 1948. The appellant appeared on that date, and after anex 'parle trial the Court passed a decree nisi in terms of section 85 of theCivil Procedure Code, declaring the appellant entitled to the land andordering that the respondent be ejected and the appellant placed inpossession of it. On 26th May 1948 this decree was made absolute interms of section 86 of the Code, rffter the respondent had unsuccessfullyattempted to purge his default, and the fiscal placed the appellant inpossession of the land on 22nd September 194S. On 30th October, 1957the respondent instituted the imesent action, claiming that a cause ofaction had ; ccrued to him to sue the app llant
“ to have it declared that the said land is bound by fideicommissumin favour of the plaintiff and to have the deed No. 67 of 24th May , 1946attested by Q. M. R. Jayarnanne, Notary public, declared null and voidand for possession of the said land and premises, ”
and praying for these reliefs. The appellant in her answer denied therespondent's claim ; nd also pleaded that the decree in case No. 4894/Loperated as res adjudicata which barred this action.
GUNASEKARA, J.—Dharmadaso v. Piyadasa Pcrera25l
At the trial the issue of res judicata was tried as a preliminary issue and,the learned District Judge decided it in the respondent’s favour on theground that section 207 of the Civil Procedure Code applies only to decreesdrawn up under section 188 of that Code. He held that he was hound bythe view expressed in a passage which he quoted from the judgment cfmy lord the Chief Justice in the case of Herath v. The Attorney-Generalwhich was heard by a bench consisting of the Chief Justice, Pulle J. andde Silva J. The quotation reads :
“ Section 206 provides that the decree or certified copy thereof shallconstitute the sole primary evidence of the decision or order passed bythe Court. The preceding provisions of the Chapter in which section207 occurs show to my mind that the decrees spoken of in that sectionare decrees drawn up by the Court under section 188 after judgmenthas been pronounced in the manner contemplated in sections 1S4, 185,186 and 167. Such decrees are final between the parties subject toappeal. Section 207 will therefore apply to decrees pronounced afterthere has been an adjudication on the jnerits of a suit and not to decreesentered under section 84. ”
The Chief Justice also held that section 207 did not apply to the decreethat was in question in that case because it was not a decree in an actionbetween the same parties or for the same cause. Pulle J. held that theplea of res judicata failed substantially for the reason that the parties inthe two actions were different. He did not agree with the view expressedin the passage quoted above, for he said :
“ That the dismissal of the action was a bar to a fresh action againstone or other of the parties on the same cause of action, assuming that theDistrict Judge had jurisdiction to try case No. 3632 on its substantivemerits, is plain enough. ” 2
de Silva J. merely expressed his agreement with the order proposed to bemade. It seems to me that the District Judge was not bound by the dictumthat he lias quoted any more than he was bound by the contrary viewthat is expressed in the judgment of Pulle J.
The present case is distinguishable from that of Herath v. The Attorney-General (supra), being a case of a decree entered after there had been anadjudication on the merits of the suit in that there was an ex parte trialunder section 85 of the Code. In any event I respectfully disagree withthe view that the term “ decree ” as used in Chapter 20 of the Code mustbe given the meaning that is given to it in the passage quoted from thelearned Chief Justice’s judgment. Some of the consequences of thatinterpretation would be that a Court would have no power to correct aclerical or arithmetical mistake in a decree entered under section 84 or 85 ;the requirements laid down in sections 190 and 191 as to the contents ofdecrees relating respectively to immovable property and to the delivery
1 (JOSS) C0 N. L. R. 193 at 221.
* Ibid, at 22G.
252
TAMBIAH, J.—Kamalawalhii v. dc Silva
of movable property would not apply to a decree entered under section 85 ;and tlxe provisions of section 192, empowering a court to includein a money decree an order for the payment of interest, would not applyto such a decree if it was entered after an ex parte trial. I do not thinkthat there is anything in the context to suggest that the legislatureintended that the word “ decree ” should be given a meaning that wouldlead to such consequences.
In my opinion the preliminary issue must be answered in the defendantappellant’s favour. The appeal must be allowed with costs in both courts' and the plaintiff respondent’s action must be dismissed.
T.S. Fernando, J.—I agree.
Appeal allowed.