095-NLR-NLR-V-14-MUTTU-MENIKA-v.-APPUHAMY.pdf
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Present: Wood Renton J.
MUTTU MENIKA. v. APPUHAMY.
167—C. R. Kandy, 19,709.
Claim dismissed for default of appearance—Claimant cannot move tore-open claim—Must bring an action under s. 247, CivilProcedure Code.
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 explaining the default) on the groundthat the order was made ex parte.
Where the Legislature has enacted a particular remedy for agrievance in terms which show that it intended that remedy to bethe only one open to an aggrieved party, redress cannot be soughtby any other form of proceedings.
rjJHE facts are set out in the judgment of Wood Renton J.
Allan Drieberg, for appellant.
S. Obeyesekere (with him H. A. Jayewardene), for respondent.
June 13, 1911. Wood Renton J.—
This case raises a short and interesting point, which has beenclearly and carefully argued on both sides. The first plaintiff-appellant is alleged to be entitled to the land, which is the subject-matter in dispute, on a partition decree in D. C. Kandy, 18,354,dated May 23,1907. She leased the land, jointly with her husband,to the defendant-respondent in 1908 for a period of five years. Inthe present action the first plaintiff-appellant sued the respondentfor the recovery of rent due. The respondent denied liability on thegrounds (a) that the land in question had been sold against thesecond plaintiff by a third party on a writ, and that the respondenthad bought his right, title, and interest at the Fiscal’s sale ; and(h) that the first plaintiff-appellant had claimed the land when seizedin execution ; that her claim had been dismissed for default ofappearance ; and that, as she had failed to bring .any action undersection 247, she could no longer set up her title in the present action.The material facts, as they appear from the various-orders that havebeen made in the course of the proceedings, are these. When theland was seized it was claimed by the first plaintiff-appellant; herclaim was dismissed for default of appearance ; she subsequently
Junel3,19U
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June is, 1911 appeared and explained her default, and her claim was allowed.
WoodThe original .order dismissing her claim was made ex parte, and the
Kenton j. or(jer setting that dismissal aide was made ex parte also as regardsMuUu the purchaser. The purchaser subsequently applied to have theAppuimmi secon<^ 0fder set aside on the grounds that it had been made ex parteand that it was irregular, and his application to vacate the order wasduly allowed. It is obvious that the first and the most importantquestion is whether the first plaintiff-appellant had any right to havethe order dismissing her claim set aside on the ground that it hadbeen made ex parte. The Commissioner of Requests, in the judg-ment from which the present appeal is brought, has answered thatquestion in the negative. “ 1 hold,” he says, ‘‘that the first plain-tiff’s remedy was an action under section 247, which she did nottake.” In my opinion that finding is right. It seems to me that.the object of the group of sections concerned with claims to propertyseized is to secure a summary inquiry into such claims, and toprovide that the result of that inquiry shall be decisive as to therights of parties, subject always to the remedy indicated in section247. I do not think that it is necessary to decide the question asto whether the Court has an inherent power to set aside ex parteorders, for I think that we are bound by the principle that, wherethe Legislature has enacted a particular remedy'for a grievance interms which show that it intended that remedy to be the only oneopen to an aggrieved party, redress cannot be sought by any otherform of proceedings. I need not quote the language of section 247,with which we are all familiar. But it seems to me that the lastclause in that section strongly corroborates the view that I take ofthe point now under consideration. It is these terms : “ Subjectto the result of such action, if any, the order shall be conclusive.”There can be no doubt but that an ex parte order is an order withinthe meaning of this group of sections, and I think, therefore, that interms of section 247 it is conclusive, unless the party aggrieved by itbrings the action for which that section provides. On the groundthat I have stated I uphold the view of the learned Commissionerof Requests and dismiss the appeal with costs.
Appeal dismissed.
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