NEW LAW REPORTS OF CEYLONVOLUME XXX.Present: Dalton J. and Jayewardene A.J.
MOHAMED AT J JAR *. SEGU MOHAMADO MARIKAR.245—D. C. Colombo, 11,091.
Appeal —Decree nisi made absolute after hearing defendant—Refusal toset aside order nisi—Civil Procedure Code, ss. 86 and 87.
Where a decree nisi was made absolute after the defendant hadappeared and shown cause against it,—
Held, that the decree absolute so entered was not appealable.
An appeal lies from the order refusing to set aside the decreenisi.
Silva v. Orero1 followed.
PPEAL from an order of the Distriot Judge of Colombo. Thefacts appear from the judgment of Dalton J.
H. V. Perera (with Tisseverasingham), for 1st to 4th defendants,appellants.
Hayley, K.C. (with Weinman and Rutnam), for plaintiff,respondent.
July 27,1928. Dalton J.—
The present appellants are the 1st to 4th defendants in the action.This action was commenced in February, 1924. On an earlierappeal this Court had ordered, on June 2,1926, that the partnershipbe terminated and the 1st, 2nd, 3rd, and 4th defendants be declaredentitled to the business mad that an account be taken in respect of
S3. S. M87 («/«)
MohamedAUiar v.JSegu Moha-madoMarikar
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the business carried on in partnership between the plaintiff and thedefendants up to and as at May 3,1926, and the amounts due to orpayable by the plaintiff and the 6th and 6th defendants to the 1st to4th defendants be ascertained and determined on the basis of thataccount.
On July 13, 1926, plaintiff moved in the lower Court that theaccount be filed by defendants in conformity with the above order.This was done on August 28, 1926, when the -Court directed thatall books and papers be handed over to plaintiff’s proctor beforeSeptember 6, and that objections to the accounts, if any, be filedon October 11. On that date plaintiff filed his objections andhearing was fixed for November 9, that date being fixed by consentof both parties. When that date arrived and the case was called,a further adjournment was allowed until March 4,1927. No reasonis given on the record, but we are informed that the reason for thislong postponement was due to the fact that the 1st to 4th defendantshad left Ceylon for India.
On March 4 the case came up again, defendants’ proctor askingfor a further adjournment as he stated the defendants were in India,that he had no instructions from them, did not know their address,and did not know whether they were returning to Ceylon. Plaintiffobjected to any further postponement and the District Judgerefused the application as no adequate grounds were put forwardto justify further postponement of what he describes as “ thisalready long outstanding case ”. The inquiry was then fixed forMarch 7, on which date the case was called, defendants being indefault of appearance and evidence by affidavit being led on behalfof plaintiff. Thereupon the trial Judge made order as follows:“ Enter decree nisi for March 10 for service on proctor of 1st to4th defendants. Allowed. Call case this Court on 10th March.”The case was then called on March 10, when defendants’ proctorappeared and stated he did not know the address of his clientsto communicate with them with regard to the decree nisi. He askedfor time to enable him to try and get into communication withthem. This request the Judge allowed, making the followingorder:—
“ Mr. Bartlett asked for time to enable him to try and get intocommunication with his clients. I think this applicationa reasonable one. I will allow time till April 8 to showcause. If cause is to be shown evidence must be led onthat date. If no cause is shown on April 8 the decree willbe made absolute.”
This order appears to have had an immediate effect in discoveringthe defendants, in producing them in Colombo, and in stirring theminto action. On April 8 they appeared to show cause, evidence
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■was led, and the 1st defendant himself went into the witness box.
On the same date the Judge made the decree absolute, holding Damon J.that no cause had been shown by defendants why the decree nisishould be vacated. He gives his reasons for this decision at length, AUiar «.and calls attention to the apparent ease with which communication Se&* Moha-was effected with defendants so soon as it appeared the decree Marikarmight be made absolute.
The defendants now appeal to this Court, first of all against theorder refusing to set aside the decree nisi, and secondly against thedecree absolute.
With regard to the second point, the appeal against the decreeabsolute, it iB urged for the appellants that there is here no decree“ absolute for default ”, but against this it is argued for the respond-ent (plaintiff) that there is no appeal against the decree absoluteunder the provisions of section 87 of the Civil Procedure Code.
This point is covered by authority. In Silva v. Qrero,l a casedirected to be argued before the Full Court (as it was in 1895), themajority of the Court held that a decree nisi, made absolute in thepresence of a defendant who appeared and attempted to show causeagainst it, is nevertheless a decree absolute for default and is notappealable. Lawrie A. C. J. says :—
“ The defendant in the present case was in Court but he .did not‘ appear ’ on the day when the decree under appeal waspronounced; …. the record shows that hemade an attempt to show that his default to appear on theproper day was reasonable, but the same record shows thatthe Court held these reasons to be unreasonable. TheDistrict Judge held the coming to Court as no appearance;he made the decree nisi absolute. Why ? Because thedefendant was in default.”
And Withers J. says that it cannot be denied that an order nisimade absolute for default is none the less a decree absolute fordefault because it has been made after hearing cause shown by theparty in default. The majority of the Court followed the earlierdecision in Nachchiappa Chetty v. Muttoo Kankani?
Mr. Perera has argued, however, that a doubt has been thrownupon the correctness of the decision in Silva v. Qrero (supra) bycertain obiter dicta of Bonser C.J. in Ceylon Gemming and MiningCo. v. Symons.3 The appeal in that case was from an order refusingto set aside the decree nisi, and the Court held that such an appealdid lie to the defendant. In the course of his judgment Bonser CJ.deals with the provisions of section 87 and points out that there
1 -V. L. R. $7.* C. L. R. 110.
3 2 N.L. R. 226.
JtohamedAUiar v.Begu Moha-madoMarikar
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has been some difference of opinion as to the meaning of the words“ absolute for defaultHe adds—
“ For my own part I cannot help thinking, though in differingfrom my brother Withers I do so with misgiving, that thetrue construction of ‘ decree absolute for default ’ is thatthe decree is made absolute in consequence of the defendantnot having attended to show cause against the decreebeing made absolute, on notice.”
This opinion, although it be expressed with some misgiving, is,having regard to the source whence it came, not to be lightlydisregarded, if the matter is open for discussion, but it is obiter, andon a matter upon which there is a decision, that is Silva v. Orero(supra), binding upon this Court. Mr. Perera is not prepared toargue that Silva v. Orero (supra) and Nachchiappa Chetti v. MuttooKankani (supra) have been overruled by the judgment in CeylonGemming and Mining Co. v. Symons (supra), as is stated in a foot-note on p. 262 of Vol. I. of the 1st Edition of Pereira's Institutes ofCeylon, to which he has called our attention. That note wouldappear to be incorrect. It would seem further that the decision inSilva v. Orero (supra) has not been questioned since 1896, but hasgenerally been accepted as correctly interpreting the law on thispoint.
The question then being settled for this Court, it is not necessaryto go further. I would only call attention to the confusion,incongruity, and inconvenience, although that of course would notof itself decide the matter of interpretation, which would necessarilybe occasioned by a different decision on this question. This hasbeen fully dealt with in an analogous case by Straight J. and isalso referred to by Stuart C. J. in Led Singh and others v. Kunjan andothers.1 That was a case in which a defendant, against whom adecree had been entered ex parte and who had not got the decreeset aside as provided by section 108 of the Indian Civil ProcedureCode, appealed from the decree under the general provisions ofthe code.
With respect to the first point, the appeal against the orderrefusing to set aside the decree nisi, the trial Judge has given reasonsfor his refusal which seem to me to be amply supported by thematerial before him. Having obtained a dissolution of the partner-ship and the departure of the plaintiff from the business, theappellants burke any inquiry into the matter of accounts by leavingfor India and keeping their whereabouts unknown to their proctor.The trial Judge finds they purposely kept out of the way, evenkeeping out of the way of their own proctor, in order to hold up theinquiry into the accounts as long as possible. The ease with which
4 AUahabad 388.
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they were discovered as soon as there was a probability of the decreenisi being made absolute is remarkable. It is urged, however, thatthe decree nisi might have been set aside on terms, but what theymight be has not been suggested. This litigation was commenced in1923, and the action of the appellants since June, 1926, has showna most deliberate attempt to prevent a decision being come to inrespect of their accounts. In my opinion the trial Judge wascorrect, on his view of the material before him, in holding that theappellants had not shown cause for setting aside the decree nisi.
For these reasons the appeal must be dismissed with costs.
The Civil Procedure Code came into operation on August 1,1890*In 1892 the effect of Section 87 was considered by the Supreme Courtin Nachchiappa Chatty v. Muttoo Kanhani.1 Withers J. held thatsection 87 took away the right of appeal against a decree nisi fordefault and that section 86 gave a remedy, in case the decree hadbeen improperly obtained, by showing cause against it in the Courtbelow, but if it was made absolute there was no appeal against thedecree absolute. Lawrie J. agreed with this judgment. Thequestion of the right of appeal was considered by the Full Court,in Silva v. Grero2 in 1895, and it was held that a decree nisi, madeabsolute in the presence of a defendant, who appeared and attemptedto show cause against it, is nevertheless a decree absolute fordefault and hence not appealable. Lawrie and Withers JJ. adheredto their former opinions, but Browne J. dissented. In CeylonGemming and Mining Co. v. Symons 3 it was held that an appeallay from an order refusing to set aside a decree nisi. Bonser C.J.did not seem to agree with the opinions of Lawrie and Withers JJ.in Silva v. Grero (supra).
In Habebu Lebbe v. Punchi Ettana,4 Bonser C.J. observed, “ I aminformed by my learned brother (Withers J.) that it has long beenthe practice—and a practice which has been expressly approved bythis Court—that application should be made in the first instanceto the Court which pronounced the judgment, and if the Court •refuses to set aside, then and then only should there be an appealfrom that refusal. That course appears to me to be a most convenientone, and furthermore it is in accordance with the practice of theAppeal Court in England.”
In Gargial v. Somasunderum Chatty5 Layard C.J. in 1905 hadno doubt in his mind that that had been the practice of the SupremeCourt for thirty years at least, and he believed it existed prior tothat date.
1 (1892) 2 c. L. R. 110.3 (1896) 2 N. L. R. 226
* (1895) 1 N. L. R. 67.* (1894) 3 C. L. R. 84. .
(1905) 9 N. h: R. 26.
MohamedAttiar v.Segu Moha-madoMarikar
MohamedAUiar «,Segu Moha-m«doMarikar
In Letchiman Chetty v. Hadjiar1 it was held that on an applicationto vacate a decree nisi and on an appeal from a refusal to allow thedefendant to come in and defend, the Court was not concerned withthe merits of the case.
Bertram C.J. in Weeraratna Bros. v. Secretary, D. C., BadvBa?(de Sampayo J. agreeing) oited with approval the dictum in theprevious cases, that the appeal should be from the order refusing toset aside the judgment and that the practice was a long establishedone.
On principle a Court of Appeal must not be called upon to deoide -on the merits, where a case has only been heard ex parte. To mymind it may work great hardship on the plaintiff. Where thedefendant is absent, the plaintiff plaoes before the Court theminimum of evidence, and the defendant must not be permitted toassail the plaintiff’s case for the first time in appeal.
I would dismiss the appeal with costs.
MOHAMED ALLIAR v. SEGU MOHAMADO MARIKAR