Vyramuttu v. Idylvagcmam
Present: Pulle J. and L. M. D. de Silva J.K.VYRAMUTTU, Appellant, and R. M YU VAGAN AM,Respondent
S. C. 107—D.C. Trincomalee, 3,859
Civil Procedure Code—Non-appearance of plaintiff—Decree nisi—Application to setit aside•—Time limit of Id days-—Computation—Section 84 (J).
The period of fourteen days referred to in section 84 (1) of the Civil ProcedureCode must be reckoned as from the date of the formal decree in form No. 21and not from the date of the order directing that the decree nisi be entered.
i^^PPEAD from an order of the District Court, Trincomalee.
N.C. J. Ruqfomjee, for the plaintiff appellant.
No appearance for the respondent.
Cur. adv. vult.
c1952) A. C. 189.
(I960) A. C. 345 at 356.
FUX/LB J.—Vyramuttu v. Mylvagunam
November 5, 1952. Ptjlle J.—
The appellant in this ease is the plaintiff. He prayed for a declarationof title to an undivided three acres • from and out of a land called“ Puliyadi Vayal ”, ejectment and damages. On the date of trial,namely, the 18th March, 1952, the appellant was absent. His Proctorwas present but he stated that he had no instructions and that he was notappearing for the appellant. The learned District Judge then made anorder in the following terms:
“ Enter decree nisi dismissing plaintiff’s action with costs. ”
On the 24th March the appellant’s Proctor filed a petition and anaffidavit and moved for a notice on the defendant to shew cause whythe “ decree nisi entered should not be vacated ”. In point of fact nodecree nisi in form 21 as required by section 84 of the Civil Procedure Codehas been entered at all. This fact has since been fully verified.
The case was called on the Bench on the 1st April and a notice wasissued on the defendant returnable on the 5th April. On the latter datethe parties and their respective Proctors appeared and the order nowunder appeal was made. It reads—
“ Cause has not been shown within 14 days. Application refused. ”
The short point that arises for determination is whether the learnedJudge was right in refusing the application on the ground that 14 dayshad elapsed since the order which he made on the 18th March. It waslaid down in the case of Austin de Mel v. Kodagoda 1 that the period offourteen days referred to in section 84 must be reckoned as from the dateof the formal decree in form 21 and not from the date of the order directingthat the decree nisi be entered. The learned District Judge was, therefore,in error in refusing the appellant’s application that the order of the 18thMarch be vacated solely on the ground that when the application wastaken up for hearing on the 5tb April a period of 14 days had elapsed.We, therefore, set aside the order of the 5th April and remit the case withthe direction that the motion dated 24th March be heard and disposed ofon its own merits. The appellant will be entitled to the costs of theappeal. The costs below will be in the discretion of the learned DistrictJudge.
L. M. D. de Silva J.—I agree.
Order set aside.
(1945) 46 N. L. R. 150.