033-SLLR-SLLR-2006-V-1-MARIKKAR-vs.-VANIK-INCORPORATION-LTD-AND-OTHERS.pdf
CA
Marikkar vs
Vanik Incorporation Ltd and Others (Wimalachandra, j.)
281
MARIKKARVSVANIK INCORPORATION LTD AND OTHERSCOURT OF APPEALSOMAWANSA, J. (P/CA) ANDWIMALACHANDRA, J.
CALA 326/2004
D. C. MT. LAVINIA No. 258/03/CLAPRIL 20, 2005
Civil Procedure Code, sections 86(2), 241, 245 and 247 – Claim under section241-Claimant absent on the day of inquiry – Counsel not ready to proceed withthe case-Can the claimant seek redress from the Court of Appeal ?- Is there aspecific remedy available to him?
HELD:
A person whose claim was dismissed for default of appearancemust bring an action under section 247; he should not move tore-open the claim inquiry by explaning the default on the groundthat the order was made ex parte.
An order disallowing a claim, in the absence of the claimant onthe date fixed for inquiry, of which the claimant had notice is anorder for which conclusive character given by section 245 attaches.
APPLICATION for leave to appeal from an order of the District Court of Mt.Lavinia.
Cases referred to :
Muthu Menika vs. Appuhamy 14 NLR 329
Marikkar vs. Marikkar 22 NLR 438
Isohamine vs. Munasinghe 29 NLR 277
Manohara R. de Silva for petitioner – petitionerHarsha Amaraskera for plaintiff respondent
Cur.adv.vult.
282
Sri Lanka Law Reports
(2006) i Sri L. R.
June 14,2005.WIMALACH ANDRA, J.
This is an application for leave to appeal from the order of the learnedAdditional District Judge of Mount Lavinia dated 19.08.2004.
The facts relevant to this application are briefly as follows:
The 1st to 4th defendant – respondent – respondents (1st to 4thdefendants) are partners of the firm called and known as Sari Kingdom.The defendants sought and obtained a bill purchasing facility from theplaintiff- respondent – respondent (plaintiff). However the defendantsdefaulted in making the payments. Thereafter the plaintiff filed action jointlyand severally against the1 st to 4th defendants for the recovery of a sum ofRs.1,091,339.03 from the 1 st to 4th defendants. The Court issued summonson the 1st to 4th defendants and on the summons returnable date thedefendats were absent and unrepresented. Thereafter the Court fixed thecase for ex-parte trial.
On 05.03.2002 the learned Additional District Judge of Colombo enteredex-parte judgment in favour of the plaintiff and the Court ordered that the exparte decree be served on the defendants. The decree was served on thedefendants. Consequently, the 1 st defendant filed an application to vacatethe ex-parte judgement in the District Court of Colombo. The inquiry intothe said application made under section 86(2) of the Civil Procedure Codewas pending in the District Court of Colombo. Despite the ex-parte decreebeing served on the 2nd to 4th defendants, they made no attempt to havethe ex-parte judgment entered against them vacated. The plaintiff thenmade an application for the execution of the decree against the 2nd to 4thdefendants and the Court issued a writ of execution against them. Uponreceiving the writ, the fiscal seized the goods belonging to the aforesaidpartnership business of the 1 st to 4th defendants, the Sari Kingdom,on 29.10.2003 from its show rooms at Majestic City, Liberty Plaza andWellawatte. The 1 st defendant made a claim in the District Court of MountLavinia under section 241 of the Civil Procedure Code, claiming the goodsseized from the Majestic City show room. The said application was giventhe number 258/3/CL by the District Court of Mount Lavinia. The plaintifffiled objections to the said application and the Court fixed the matter forinquiry to be held on 19.08.2004. On that day a lawyer appeared for theclaimant, the 1st defendant and moved for a postponement of theinquiry on the ground that the 1 st defendant’s senior counsel had by
CA
Marikkar vs
Vanik Incorporation Ltd and Others (Wimalachandra, j.)
283
mistake taken down the said date in his diary as a calling date for theplaintiff to file objections. Even the 1st defendant who was the claimantwas absent. The learned judge after hearing the submissions made by thecounsel dismissed the 1st defendant’s application on the basis that it isan imperative requirement for the claimant to be present in Court on thedate of the inquiry, and that in this instance the counsel who was presentin Court was not ready to proceed with the inquiry.
The question that arises is, when the claimant’s application is dismisseddue to want of appearance of the claimant and his counsel, what is theremedy available to the claimant. Can he seek redress from the Court ofAppeal by filing an application for leave to appeal from the said order whenthe Civil Procedure Code has provided a specific remedy under section247? The answer to this question is found in the well considered judgmentpronounced by Wood Renton, J. in the case of Muttu Menika l/s.Appuham/1) In this case the Supreme Court held that, a person whoseclaim was dismissed for default of appearance must bring an action undersection 247; he should not move to re-open the claim inquiry (by explainingthe default) on the ground that the order was made ex-parte. It was alsoheld that when the legislature has enacted a particular remedy for agrievance in terms which show that it intended that remedy to be the onlyone open to an aggrieved party, redress cannot be sought by any otherform of proceedings.
Section 247 of the Civil Procedure Code states thus:
‘The party against whom a order section 244, 245 or 246 is passedmay institute in action within fourteen days from the date of such order toestablish the right which he claims to the property in dispute, or to havethe said property declared liable to be sold in execution of the decree inhis favour, subject to the result of such section, if any, the order shall beconclusive”
In Muttu Menika Vs. Appuhamy (Supra) Wood Renton, J. at page 328observed thus:
“There can be no doubt but that an ex-parte order within the meaning ofthis group of sections, and I think, therefore, that in terms of section 247 itis conclusive, unless the party aggrieved by it brings the action for whichthat section provides.”
284
Sri Lanka Law Reports
(2006) 1 Sri L R.
The teamed Counsel for the plaintiff referred to the Supreme Court caseof Marikkax Vs. Marikkar&K In this case, De Sampayo, J. after examiningthe local and Indian authorities, and upon a consideration of the principlesinvolved in the procedure laid down in sections 241 to 247, held that whenthe date of the inquirty has been notified and the proceedng is otherwiseregular, and where therefore it is the duty of the claimant to appear andadduce evidence in support of his claim but he fails to do so, the Court iswithin its powers in disallowing his claim, and that an order so made isequivalent to an order after investigation under section 245 of our Codeand is conclusive against the claimant, unless he brings an action undersection 247.
In the case of Isohamine Vs. Munasinghe(3) It was held that an orderdisallowing a claim, in the absence of the clamant on the date fixed forinquiry, of which the claimant had notice, is an order to which conclusivecharacter given by section 245 of the Civil Procedure Code attaches.
In the circumstances, it is my considered view that recourse must befirst sought in terms of section 247 of the Civil Procedure Code and not byway of appeal. On this ground alone the application for leave to appealshould be dismissed.
In the light of the above mentioned decisions, it appears to me that theorder of dismissal of the 1 st defendant's claim action filed under section241 of the Civil Procedure Code, for want of appearance of the claimantand his counsel on the date of the inquiry, tantamounts to an order madeunder section 245 of the Civil Procedure Code. The 1 st defendant has notresorted to the remedy provided by section 247 of the Civil ProcedureCode. As no proceedings were taken under section 247 the order madeby the learned judge on 19.08.2004 has conclusive effect. Hence no appeallies to this Court from such order. Accordingly, the 1 st defendant cannotmaintain the application for leave to appeal made to this Court.
For these reasons we refuse to grant leave to appeal and dismiss the1 st defendant's application for leave to appeal with costs.
SOMAWANSA, J. — I agree.
Application dismissed.