115-NLR-NLR-V-48-LOKU-MENIKA-Appellant-and-SELENDUHAMY-Respondent.pdf
1947
DIAS J.—Loku Menika v. Selenduhamy.Present: Dias J.
353
LOKU MENIKA, Appellant, and SELENDUHAMY, Respondent.
S. C. 192—C. R. Ratnapura, 1,528.
Civil Procedure—Mortgage Ordinance—Application for appointment of legalrepresentative—Notice not served on respondents—Decree entered—Application to set aside decree—Procedure.
Where an order is made ex parte the proper procedure to be adoptedby the person against whom that order has been made is, in the firstinstance, to move the Court which made the order to set it aside. Such anapplication would not be in terms of the Civil Procedure Code but inaccordance with a rule of practice which has become deeply ingrainedin the legal system of Ceylon.
A
PPEAL from a judgment of the Commissioner of Requests,Ratnapura.
H. V. Perera, K.C. (with him S. R. Wijayatilake), for the seconddefendant, appellant.
N.E. Weerasooria, K.C. (with him P. Navaratnarajah), for thepetitioners, respondents.
Cur. adv. vult.
June 10, 1947. Dias j.—
The plaintiff B. A. Abraham Singho instituted this mortgage action,and as the mortgagors were dead, he moved to have a “ legal representa-tive ” appointed in place of the deceased mortgagors under section 7 ofthe Mortgage Ordinance. The respondents named to that applicationwere the present five respondents and E. P. Funchimenika who is also arespondent to this appeal.
The Court ordered notices to issue on the respondents. On May 25,1943, the Court clerk journalled that all the respondents had been repottedto have been served with notice, and as they were absent, M. K. Silindu-hamy (the first respondent to this appeal) was appointed legal representa-tive of the deceased mortgagors. Thereafter summons in the main actionwere issued on her. On the returnable date summons having beenreported to have been served on her, and she being absent, a decreeabsolute was entered in the action on July 13, 1943.
Thereafter order to sell was issued, and at the sale the appellant,who is the wife of the plaintiff mortgagee, purchased the land.
On February 22, 1945, the present respondents came before the courtalleging that the original notices for the appointment of a legal representa-tive had not been served on them, that they were unaware of the institutionof the action until January, 1945, and that the summons in the mainaction had not been served on Silinduhamy, the first respondent. They,therefore, moved the Court to vacate all the proceedings.
An inquiry was held by the Commissioner and he has found as a factthat the original notices for the appointment of -the legal representativewere not served by the Fiscal’s Officer on persons known to him, but onbeing pointed out to him. This important fact had not been entered in
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354
DIAS J.—Loku Memka v. Selenduhamy.
the journal of the case. Had it been, the Judge before taking any furtheraction would have directed what is called an affidavit of identity to beproduced by the person who pointed out the persons to the processserver identifying them as the persons wanted. There was thus no proofwhatever that the correct persons had been pointed out. The appoint-ment of Silinduhamy as the legal representative was, therefore, badab initio. The Judge has also accepted the evidence of Silinduhamythat she was never served with the summons in the main action. He,therefore, held that the proceedings culminating in the decree and there-after were void, and he set aside all the proceedings in the case. Fromthat order the purchaser at the mortgage sale, who is the wife of theplaintiff, appeals.
In her petition of appeal she has stated “ that it was not stated at thehearing under what provision of the law this application was made: butpresumably it was made under section 344 of the Civil Procedure Code.If so, it is submitted that that section cannot in law be invoked in view ofthe wording of the section itself”. The proceedings show that counselfrom Colombo appeared for the parties at the inquiry. No referencewhatever was made to section 344 by either counsel at the inquiry.
It is clear that the learned Commissioner of Requests held this inquiryunder a rule of practice which has become deeply ingrained in our legalsystem—namely, that if an ex parte order has been made behind the backof any party, that party should first move the Court which made that exparte order in order to have it vacated, before moving the Supreme Courtor taking any other action in the matter. If authority is needed for thisproposition it is to be found in the following cases: In Habibu Lebbe v.Punchi Ettena1 Bonser C.J. said “ I am informed by my learned brotherthat it has long been the practice, and a practice which has been expresslyapproved by this Court, that in cases like the present one, applicationshould be made in the first instance to the Court which pronounced thejudgment; and if the Court which pronounced the judgment refusesto set it aside, then, and then only, should there be an appeal from thatrefusal. This course appears to me to be the most convenient one; andfurthermore, it is in accordance with the practice of the Appeal Court inEngland. It has been laid down that although the Court of Appealmay have jurisdiction to hear appeals from judgments given by default,yet, that it is not desirable to exercise that power, and to encourageappeals to be brought before the case had been triedThere-
fore, if the judgment was given in the absence of one of the parties, Ithink that under the practice laid down by this Court, it was competentfor the District Judge to deal with the case, and that the plaintiff adoptedthe proper course in applying first to the District Judge before comingto this Court. ” In Gargial v. Somasundram Chetty ‘ the case of- HabibuLebbe v. Punchi Ettena (supra) was followed. Layard C.J. said- that thepractice referred to had been in existence for the last thirty years at leastand “ I believe that it existed prior to that date ”, In the Badulla casewhich was cited, and which is reported under the name of Weeraratne v.Secretary, D. C., Badulla* Bertram C.J. followed the two earlier cases.
{1894) 3 C. L. R. atp. 85 and see Craig v. Kanesen {1943) 1 K. B. 256.
{1905) 9 N. L. R. 26.
» (1920) 2 C. L. Rec. 180, 8 C. W. R. 95.
Kanagasabai v. Canagaratnam.
353
In Caldera v. Santiagopulle1 Bertram C.J. following Weeraratne v. Secretary,
C., Badulla (supra) said “ The order was made ex parte behind the backof the defendant, and in accordance with the authorities cited in a very-recent case …. a person seeking to set aside such an order mustfirst apply to the Court which made it, which is always competent to setaside an ex parte order of this description”. In Sayadao Mohamadu v.Maula Abubaker * Jayewardene J. saiu : “ An ex parte order under thesesections should, I think, be treated as any other ex parte order made bythe Court, and any party affected by it should be entitled to apply tovacate it on notice to the party in whose favour it was made”. InTambirajah v. Sinnamma* it was laid down that the final decree in apartition action can be set aside upon proof that summons had not beenserved upon a party to the action.
The appellant has cited the case of Allis Appu v. Ran Menika', thefacts of which bear a similarity to the facts of the present case. Whatthat case decided was that section 344 of the Civil Procedure Code relatesto the execution of decrees, and enables a Court to dispose of questionsrelating to the execution which arise between the parties, instead ofreferring them to a separate action. It does not confer a special poweron the Court to set aside its own decrees—see also Bank of Chettinad v.Pulmadan Chetty‘. I do not think these cases apply to the facts of thepresent case. This inquiry was not held under section 344 of the CivilProcedure Code. The findings of facts of the Commissioner of Requestscannot be disturbed. Those findings show that there was no properservice of summons on the defendant, with the result that the proceedingswere ex parte and bad. Under such circumstances it is rather late inthe day to argue that the Court had no power to hold the inquiry it did, orto make the order which it did.
The appeal is dismissed with costs.
Appeal dismissed.