256Sri Lanka Law Reports[2008] 1 Sri LR
It reads as follows:-
Edman Abeywickrema v Dr. Upali Athauda and another
SC(Andrew Somawansa, J.)257
When the matter was taken up for hearing counsel appearing forboth parties made oral submissions and thereafter undertook totender written submissions within two weeks. Though reminders weresent, no written submissions have been tendered by either party up todate.
The plaintiffs-respondents (hereinafter referred to as therespondents) instituted an action in the District Court of Kandyseeking a declaration of title to the land described in the schedule tothe plaint, for ejectment of the appellant and damages. The appellantfiled answer praying for a dismissal of the action and also stating thathe has already disposed of his rights in the land in question.
It is common ground that the case was fixed for trial on 10.06.1992on which date as the appellant was absent and unrepresented thecase was fixed for ex-parte trial on 23.10.1992. On 06.10.1992 theappellant filed a petition and affidavit seeking to have the order for ex-parte trial vacated. Thereafter court granted a date for the appellant tosupport the aforesaid petition on which date too the appellant wasabsent and unrepresented and the case was re-fixed for ex-parte trial.Subsequently the ex-parte trial was taken up and concluded andjudgment was entered in favour of the respondents. Thereafter apurported ex-parte decree had been entered and the same wasserved on the appellant on 31.10.1994. It is also common ground thatthe appellant within 14 days of receipt of the said purported ex-partedecree filed a motion seeking to set aside the ex-parte decree on thebasis that it was not in conformity with the judgment and therefore wasirregular. The learned District Judge by his order dated 17.11.1995rejected the said application of the appellant on the basis that theappellant has not followed the correct procedure in making theapplication as laid down in section 86(3) of the Civil Procedure Codewhich requires that every application shall be made by petitionsupported by affidavit.
The purported ex-parte decree served on the appellant found onpage 59 of the brief reads as follows:

258Sri Lanka Law Reports(2008] 1 Sri L.R
It is apparent that on the face of the purported ex-parte decreeserved on the appellant it is not an ex-parte order but an inter-partesdecree entered of consent and certainly not in accordance with thejudgment.
It is also common ground that subsequently another decreeprepared in accordance with the ex-parte judgment had beentendered by the Attomey-at-Law for the respondents and thus asecond ex-parte decree had been entered on 19.03.1996. Theaforesaid second ex-parte decree was served on the appellant on
and the appellant filed petition and affidavit on 21.05.1996seeking to have the ex-parte decree vacated. After inquiry the learnedDistrict Judge by his order dated 17.10.1996 refused the appellant'sapplication on the basis that the date of receipt of the first ex-partedecree vis: 31.10.94 should be counted as the date of serving the ex-parte decree and as such the appellant's application dated
is made nearly 1 1/2 years after the decree was served onhim and therefore is time barred.
The appellant thereafter preferred an appeal from the said order tothe Court of Appeal and the Court of Appeal by its judgment dated30.09.2004 in CA1259/96 dismissed the said appeal of the appellantaccepting the reasoning given by the learned District Judge in hisorder.
It is contended by counsel for the respondents that the wholepurpose in serving the ex-parte decree on a party who was absent atthe trial and on the day the judgment was pronounced was to bring itto his notice or knowledge that there is a decree of court enteredagainst such a party. Therefore when the 1st ex-parte decree wasserved on the appellant on 31.10.1994 it was brought to the notice ofthe appellant that a decree has been entered in an action against theappellant namely in District Court Kandy case No. 20619/MR to whichthe appellant was a party. In fact the appellant had prior knowledge ofthe pending action against him for he had tendered his answer,moreover had made an application to have the first order for an ex-parte trial vacated. However having obtained a date to support thesaid application the appellant failed to appear on the date on which hewas due to support his application.
In the circumstances he submitted that the appellant had sufficientknowledge of the ex-parte decree that would be entered against him
Edman Abeywickrema v Dr. Upali Athauda and another
SC(Andrew Somawansa, J.)259
and the decree served on the appellant on 31.10.1994 thoughdefective was sufficient service in compliance with the provisionscontained in section 85(2) of the Civil Procedure Code. Though theaforesaid argument appears to be attractive still I am unable to agreewith the learned President's Counsel for the reason that even if onewere to accept the contention that serving an ex-parte decree was togive notice of the decree entered against such a party, the decree thatwas served on the appellant was defective and not in conformity withthe law and as such was not a valid ex-parte decree for on the face ofthe purported ex-parte decree served on the appellant it was not anex-parte decree but an inter-partes decree entered of consent whenthe appellant never consented to such a decree. On the other hand,as it appears on the face of the decree served on the appellant if theappellant consented there was no necessity to serve the same on theappellant.
Section 85(4) of the Civil Procedure Code provides for serving ofan ex-parte decree entered in accordance with the judgment only.Though it is the practice for the Attorney-at-Law to draw up the decreeand tender the same for the Judge's signature section 85(1) of theCivil Procedure Code provides that court should enter decree and heis duty bound to satisfy himself of the correctness of the decree, thatit is in conformity with the judgment before he places his signature toit. I must say the learned District Judge who signed the defectivedecree has failed to discharge his responsibilities in a proper manner.Be that as it may, when he came to the conclusion that decree servedon the appellant on 31.10.1994 was sufficient compliance with section85(4) of the Civil Procedure Code he did misdirect himself in law forthe decree so served on the appellant was not an ex-parte decree buta consent decree and as such purging the appellant's default neverarose. Unfortunately this aspect of the matter was never appreciatedby the learned District Judge nor did the Court of Appeal.
The learned District Judge further misdirected himself in law whenhe went on to say in his order dated 17.10.1996 that entering of asubsequent corrected ex-parte decree and the court making an orderto serve the same was superfluous. In fact the learned District Judgefailed to appreciate the fact that the first decree served on theappellant on 31.10.1994 was a consent decree and not an ex-partedecree. In any event, the aforesaid consent decree cannot be
260Sri Lanka Law Reports[2008] 1 Sri L.R
construed an ex-parte decree. In the circumstances, the purported ex-parte decree served on the appellant on 31.10.1994 was certainly nota valid ex-parte decree and as such does not attract the provisionscontained in section 86 of the Civil Procedure Code nor does it castany obligation on the appellant to comply with the said provisions insection 86 of the Civil Procedure Code if he so desires to purge hisdefault at the trial and proceed with his defence.
For the aforesaid reasons, I would answer the questions of law onwhich leave was granted in the negative. Accordingly I would allow theappeal and set aside the judgment of the Court of Appeal dated30.09.2004 and the order of the learned District Judge dated17.11.1995. The learned District Judge is also directed to make anorder in accordance with the law in respect of the application made bythe appellant in his petition and affidavit dated 21.05.1996. Theappellant is entitled to costs incurred in this Court as well as in theCourt of Appeal.
Appeal allowed.