Sri Lanka Law Reports
[198312 Sri L R.
SHARVANANDA. J. ABDUL CADER. J. & RODRIGO. J.
S. C. NO. 17/83; S. C. NO. 72/82 C.A. APPLICATION NO. 568/82D. C. MT. LAVINIA NO. 1105/RE19 OCTOBER 1983.
Civil Procedure Code, Section 86(2) — Decree entered ex parte — Applicationto vacate it on ground of non-sen/ice of summons.
When a defendant complains that summons had not been served on him andnevertheless a decree had been entered against him. he challenges thefoundation of the default decree. When a defendant attempts to satisfy Courtthat the decree against him for "default" is not based on valid evidence for thefinding that summons was served on him. he falls within the ambit of section86(2) of the Civil Procedure Code,
APPEAL to the Supreme Court from judgment of the Court of Appeal.
Nimal Senanayake with Miss S. M. Senaratne and Miss H. D. Te/espha forplaintiff-respondent-appellant.
M. A. Q. M. Ghazzali with D. S. Rupasinghe for the defendant-petitioner-respondent.
Cur. adv. vult
8 November. 1983ABDUL CADER, J.
At the conclusion of the argument on 19.10.83. we dismissedthe appeal with costs and indicated that we will give our reasonsfor the dismissal later. We now set out below the reasons.
The appellant before us was the plaintiff in an action againstthe defendant-respondent to eject him. Summons was not servedon the respondent personally, but was reported to have beenserved by way of substituted service. The defendant failed toappear on the date of hearing and judgment was entered in
Peter Singho v. Wydaman (Abdul Cader. J.j
favour of the plaintiff ex-parte. The respondent moved to havethe judgment set aside as no summons was served on him eitherpersonally or by way of substituted service. The learned DistrictJudge made order refusing to vacate the judgment. Thepetitioner filed notice of appeal against the order and tenderedthe Petition of Appeal also within time.
Meanwhile the plaintiff-appellant filed application forexecution of decree which was allowed by the Judge on thebasis that the tenant had failed to obtain Leave to Appeal againsthis order which, according to the District Judge, was the properprocedure to be followed.
On petition for revision being filed by the defendant-respondent, the Court of Appeal took the view that Section 86(2)of the Civil Procedure Code, on which the defendant-respondentrelied, presupposes that summons has been served on thedefendant who is in "'default". But since the respondent hadtaken up the position that no summons has been served on him,this Section has no application.
The Court, however, went on to discuss the question whetherthe order made by the District Judge was a final order and. afterquoting very relevant authorities, came to the conclusion that theorder made by the District Judge was a final order from whichthe petitioner had rightly preferred an appeal to that Court.
Before us, Mr. Senanayake conceded that if Section 86(2) hadapplication the defendant had a right to appeal direct in view ofSection 88 (2) of the Civil Procedure Code, but he contendedthat since Section 86(2) had no application even as the Court ofAppeal had held, the defendant could not avail himself of Section88(2). He did not deny that the District Court had a right toentertain an application by the defendant to set aside the ordermade ex parte, but he said that that would be under the inherentjurisdiction of the District Court and not under any particularsection in the Code, and submitted that the order made by thelearned District Judge was an "order" in terms of Section 754 (2)and, therefore, an appeal could be preferred only with the leaveof the Court of Appeal.
Sri Lanka Law Reports
 2 Sri L. R.
This contention is thoroughly artificial for the reason that if anappeal lies when the defendaht agrees that summons has beenserved on him and he was in default under Section 86(2). thereis all the more reason why a direct appeal should be permittedwhen the defendant denies service of summons on him.
To give the word "default" the restricted meaning contendedfor would be to place the defendant who had received summonsand kept away from Court at an advantage over a defendant whohad not received summons altogether.
It may be noted that Section 88(2) has no reference expresslyto Section 86(2).
Counsel relied strongly on the word "default" in Section 86(2)and submitted that this section would apply only to a defendantwho had failed to appear in court after summons had beenserved on him. The scheme of this chapter does not supportCounsel's contention. The word "default" is used in a technicalsense, both in Section 86(2) and 88(2), and not in the meaningof common usage. Section 84 reads as follows :
"If the defendant fails to file his. answer on or before the dayfixed for the filing of the answer, or on or before the dayfixed for the subsequent filing of the answer or having filedhis answer, if he fails to appear on the day fixed for thehearing of the action, and if the court is satisfied that thedefendant has been duly served with summons, or hasreceived due notice of the day fixed for the subsequentfiling of the answer, or of the day fixed for the hearing of theaction, as the case may be, and if, on the occasion of suchdefault of the defendant, the plaintiff appears, then the courtshall proceed to hear the case ex parte forthwith or on suchother day as the court may fix."
When a defendant complains that summons had not been servedon him and nevertheless a decree had been entered against him,he challenges the foundation of the default decree. He moves theGourt to reverse its finding that he was in default; to hold withhim that summons was not served on him. It is to be noted that he
Peter Smgho v. Wydaman (Abdul Cader. J.J
makes application after "service of the decree against him fordefault". The corresponding word in the Code of Indian CivilProcedure is "non-appearance" (09.R.7) which is the sense inwhich the word "default" has been used in our Code.
I am of the view that when a defendant attempts to satisfyCourt that the decree entered against him for "default" is notbased on valid evidence for that finding that summons wasserved on him. he falls within the ambit of Section 86(2). I have,therefore, come to the conclusion that Section 86(2) wouldapply. I do not agree with the view of the Court of Appeal thatSection 86(2) is confined to cases where the defendant is indefault after summons have been admittedly served on him.
Under these circumstances, it is not necessary to go into thequestion whether the order made by the District Judge was an"order" or a "judgment" in terms of Section 754. However, theCourt of Appeal has given valid reasons for its finding that theorder made in this case is a final order which entitles thedefendant to lodge an appeal without leave of the Court ofAppeal.
The appeal is dismissed with costs.
ABDUL CADER. J. – I agree.
RODRIGO, J. — I agree.