100-NLR-NLR-V-17-PERERA-et-al.-v.-FERNANDO.pdf
( 300 )
1914.
Present : De Sampayo A.J.
PERERA et ah v. FERNANDO et al.32—G. R. Negombo, 20,990.
Res judicata—No formal decree entered in first action—Civil Procedure
Code,'ss. 188, 206, 207.0.
Plaintiffs' action for declaration of title was dismissed in theseterms. " Plaintiffs not being ready to proceed, I dismiss the plaintiffs'action with costs." No formal decree was drawn up in terms ofsection 188 of the Civil Procedure Code. Plaintiffs then broughtthe present action for declaration of title to the same land.
Held, the order made in the first action operated as res judicatabetween the parties.
When a Judge records and signs a plain and distinct order thathe dismisses the plaintiff’s action, the order is a sufficient formalexpression of his adjudication upon the right claimed, and is a decreewithin the meaning of sections 206 and 207 of the Code.
The failure of the Court to do a mere ministerial act of this kindin time should not affect the parties, and when a formal decreeis entered and signed, It should be taken to be operative as fromthe date of the judgment.
Amavasuriya v„ Silva x doubted.
fj! HE facts appear from the judgment.
A. St. V. Jayewardene, for plaintiffs, appellants.
M. de Saram, for defendants, respondents.
March 24, 1914. De Sampayo A.J.—
Cur.' adv.. vult.
The only point I need consider on this appeal is that which relatesto the plea of res judicata set up by the defendants. The plaintiffshave brought this action for declaration of title to a* small strip ofland alleged to be an encroachment made by the defendants on their'land Gorakagahawatta. A previous action, No. 19,356 of the Courtof Requests of Negombo, brought by the plaintiffs for the samecause of. action, was dismissed by the Court, and the order of dismissalis pleaded as a bar to the present action. It appears that in thecase No. 19,356 the plaintiffs were not ready on the day of trial and
applied for a postponement
tfien recorded : “ Plaintiffs
which was refused. The Commissionernot being ready to proceed, I dismiss
the plaintiffs’ action with costs. ” This order was duly signed, butno formal decree appears to have been drawn up under the provisionsof section 188 of the Civil Procedure Code. I should have said thatthe order had all the requirements necessary for the purposes of res
(1905) 5 Tam. 55.
( 301 )
judicata. But section 206 of the Civil Procedure Code ^enacts: “ The
decree shall constitute the sole -primary evidence of the
decision or order passed by the Court and as “ decree ” is definedby section 5 as the formal expression of the adjudication by theCourt, it is argued that only “ a formal decree ” drawn up undersection 188 can be admitted as evidence of the Court’s decision ororder, and the judgment of Layard C.J. in Amarasuriya v. Silva 1is relied on. I have considerable doubts as to the soundness of thisreasoning. There are many instances of res judicata, such asfindings on questions of title, inheritance, legitimacy, and otherissues material to the final determination of an aotion, as to whichno formal decree is and seldom can be drawn up. In the case reliedon, the qualifying words in the definition clause of the Code do notappear to have been noticed. Section 5 says that the terms andexpressions therein defined shall have the meaning assigned tothem, “ unless there is something in the subject or context repugnantthereto. ” It seems to me that to give to the term “ decree ” insections 206 and 207 the meaning contended for. would be to makeit repugnant to the subject of res judicata as accepted and inter-preted by the authoritative decisions of this Court. Moreover, thedefinition in section 5, after all, does not say that “ decree ” shallmean the “ formal decree ” drawn up under section 188; it onlysays that it means “ the formal expression of an adjudication uponany right claimed or defence set up in a civil Court, ” and I humblythink that, when a Judge records and signs a plain and distinct orderthat he dismisses the plaintiff’s action, as the Commissioner did in-this case, the order is a sufficiently formal expression of his adjudi-cation upon the right claimed, and is a “ decree ” within the meaningof sections 206 and 207 of the Code. There is no particular virtuein a separate document, and in my view it is sufficient if at theconclusion of the judgment the Court in formal language makes itsorder. In Woodroffe and Ameer Ali’s Civil Procedure I find thatthe learned authors, in commenting on the word “ formal ” occurringin the similar definition of “ decree ” in the Indian Code, say: “ Theexpression of the Court adjudication must be both deliberate andgiven in the manner provided in the Code. This word will, however,probably be not construed too strictly. ” With great deference Ithink that Amarasuriya v. Silva 1 attributed a too restricted meaningto the term “ decree ” in connection with the subject of res judicata.
I may add that I have had the case there in question sent for, andI find that the order is much more abbreviated and informal thanthat under consideration. It is, “ Case dismissed, no costs ”—aform of order which appears to be a mere note, and to be ratherindicative of an intention to draw up a fuller and more formal decreethereafter, and which might well have failed to attract the approvalof the Court as a sufficient decree for purposes of res judicata. In
1914.
Db SupatoA.J.
Pererav.
Fernando
1 (1905) 5 Tam. 55.
( 302 )
1914.
De SampayoA.J.
Perera v.Fernando
view of my opinion on this point, it is hardly necessary for me todiscuss or decide the further point submitted by counsel for therespondent, that the drawing up of a decree is a formality which whencomplied with relates back to the date of the judgment, as providedin section 188, and that this has been done in this case, though afterthe decision appealed against. I should like to say, however, thatthe failure of the Court to do a mere ministerial act of this kind intime should not affect the parties, and that when a formal decree isentered and signed it should be taken to be operative as from.thedate of the judgment.
In my opinion the appeal- fails, and should be dismissed with costs.
Appeal dismissed.