047-SLLR-SLLR-2003-V-3-RANASINGHE-v.-TIKIRI-BANDA.pdf
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RANASINGHEv
TIKIRI BANDACOURT OF APPEALDISSANAYAKE, J.SOMAWANSA, J.
A.512/94 (F)
C.KURUNEGALA 3917/LJUNE 24, 2003
Civil Procedure Code – Sections 86(2A), 86(2C) and 189- Ex parte – Papers
to purge default filed prior to service of decree – Validity – Judgment.
Held :
There is no strict prohibition or that one is barred by any positive rule oflaw to come to court to purge default prior to the service of the decreebut after Judgment – papers filed though filed prior to the service of thedecree are valid in law.
After Judgment is entered there is no legal requirement at all for thedefendant-appellant to obtain the consent of the plaintiff-respondent tocome to Court – consent is required only if the defendant-appellant wasto come to Court prior to entering Judgment.
APPEAL from the judgment of the District Court of Kurunegala
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Case referred to:
Coomaraswamy v Mariamma – 2001 3 Sri LR 312
Chula Bandara for the defendant-appellant.
Anil Silva with S.L. Priyantha for the plaintiff-respondent.
Cur.adv.vult
October 10, 2003SOMAWANSA, J.
This is an appeal arising from an order made by the learned 01District Judge of Kurunegala in case No.3917/L dated 22.11.1994holding that the defendant-appellant has failed to comply with theprovisions contained in section 86(2) of the CivilProcedure Codeto purge the default. It is to be seen that the said order has beenmade sequent to an application made by the plaintiff-respondent foran order in terms of section 86(2) of the Civil Procedure Code.
The relevant facts are that when this case, was taken up fortrial on 27.10.1992, the defendant-appellant was absent andunrepresented. Hence the learned District Judge decided to pro- 10ceed with the case ex parte and on the same day evidence of theplaintiff-respondent was recorded and an ex parte judgment wasentered in favour of the plaintiff-respondent. Thereafter the defen-dant-appellant filed petition and affidavit dated 28.10. 1992 topurge the default and moved to have the ex parte judgment setaside. It is to be noted that though the petition and affidavit aredated 28.10.1992 according to journal entry No. 07 these papershave been journalised in the record only on 19.11.1992. The mat-ter was fixed for inquiry and both parties had agreed to resolve thematter by way of written submissions. The learned District Judge 20having considered the written submissions tendered by both par-ties, by his order dated 15.06.1994 disallowed the application madeby the defendant-appellant on the ground that after an ex partejudgment is entered the defendant-appellant had no right to makean application to set aside the ex parte judgment prior to the serv-ing of decree on him unless with the consent of the plaintiff-respon-
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dent. The ex parte decree was served on the defendant-appellanton 26.02.1993 but he failed to make a fresh application to set asidethe ex parte decree entered in terms of section 86 (2) of the Civil
Procedure Code. In the circumstances the Attorney-at-Law for theplaintiff-respondent filed a motion dated 29.07.1994 seeking a vari-ation of the order made by the learned District Judge on 15.06.1994on the basis that the learned District Judge in making his orderdated 15.06.1994 had considered only the first limb of section 86(2)and moved Court that an order be made in terms of the second limbof section 86(2).
It appears that once again parties had agreed to resolve thematter by way of written submissions. The learned District Judgehaving considered the submissions made by both parties rejectedthe objection taken by the defendant-appellant, made order dated
holding that the defendant-appellant had failed to filethe necessary papers to vacate the ex parte decree within 14 daysafter receiving the decree. It is from the said order that this appealis lodged.
When this appeal was taken up for hearing parlies againagreed to resolve the matter by way of written submissions andaccordingly both parties have tendered written submissions.
Counsel for the defendant-appellant strongly urged that theplaintiff-respondent does not have a legal right to make an applica-tion to revise, amend or confirm the judgment (it should read anorder) made by the learned District Judge on 15.06.1994, that if theplaintiff-respondent was not satisfied with the order delivered by thelearned District Judge he should have appealed against the saidorder. That the learned District Judge does not have jurisdiction toamend, alter or confirm its own judgment unless it comes undersection 189 of the Civil Procedure Code. Hence it is submitted thatthe subsequent order made by the learned District Judge on
had been made without jurisdiction and the said ordershould be set aside. While I agree with him that the said ordershould be set aside, I am unable to agree with the reasonsadduced by him as to why the order should be set aside.
The relevant section which makes provision for the defendant-appellant to excuse his default and move to have the ex parte judg-
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merit set aside is section 86 of the Civil Procedure Code. The saidsection reads as follows:
86.(2) "Where, within fourteen days of the service of thedecree entered against him for default, the defendant withnotice to the plaintiff makes application to and thereafter sat-isfies court, that he had reasonable grounds for such default,the court shall set aside the judgment and decree and permit 70the defendant to proceed with his defence as from the stageof default upon such terms as to costs or otherwise as to thecourt shall appear proper.
(2A) At any time prior to the entering of judgment against adefendant for default, the court may, if the plaintiff consents,but not otherwise, set aside any order made on the basis ofthe default of the defendant and permit him to proceed with hisdefence as from the stage of default upon such terms as tocosts of otherwise as to the court shall appear fit.
(3) Every application under this section shall be made by peti- aotion supported by affidavit:"
Applying this provision to the issues at hand, it is to be seenthat the ex-parte judgment had been entered on 27.10.1992.Petition and affidavit to purge the default are dated 28.10.1994 andhas been journalised as per journal entry 07 on 19.11.1992. On29.07.1993 parties had agreed to resolve the matter on written sub-missions and the learned District Judge having considered the writ-ten submissions tendered by both parties has rejected the applica-tion of the defendant-appellant to purge the default. It appears thatthe written submissions have been tendered not on the merits of 90the application but purely on the legality of the application. Viz.whether the application is in conformity with Section 86(2A).
It is to be seen that the learned District Judge has acceptedthe objections raised by the plaintiff-respondent on the basis that interms of section 86(2A) the defendant-appellant is prevented fromcoming to Court to purge the default without the consent of theplaintiff-respondent before the decree is served on him. The saidobjection was sustained by the learned District Judge, the relevantportion of his order is as follows:
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This finding I would say is clearly a misdirection on the law onthe part of the learned District Judge for on an examination of sec-tion 86 2(A), it is apparent that for the defendant-appellant to cometo Court to purge the default consent of the plaintiff-respondent isrequired only if the defendant-appellant were to come to Court priorto the entering of judgment. In the instant case the ex parte judg-ment had been already entered on 27.10.1992 and the defendant-appellant has in compliance with section 86(3) of the CivilProcedure Code filed a petition supported by an affidavit dated 12028.10.1992 to purge the default, (after the judgment was entered).
In the circumstances I would hold that (after the judgment wasentered) there was no legal requirement at all for the defendant-appellant to obtain the consent of the plaintiff-respondent to cometo Court and the learned District Judge has clearly erred in apply-ing the provisions of section 86(2A) to the application made by thedefendant-appellant to purge the default in the. instant case. Hencethe order of the learned District Judge dated 15.06.1994 is bad inlaw and is liable to be set aside.
As for the period of 14 days specified in section 86(2) com- 130puted from the date of the service of the decree within which thedefendant-appellant must come to Court to purge the default mustbe taken in its literal sense and thus would mean that the defen-dant-appellant must after the decree is served on him come toCourt to purge the default within 14 days. However this does notmean that there is any strict prohibition or that he is barred by any
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positive rule of law to come to Court prior to the service of thedecree but after the judgment, so that the petition and affidavit filedin the instant case though filed prior to the service of the decree tothe defendant-appellant is valid in law and the learned DistrictJudge should have accepted the same and inquired into whetherthe defendant-appellant had reasonable grounds for such default,and determined the matter on the merits of the application.
In the reasons given for his order dated 22.11.1994 thelearned District Judqe states as follows: I
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I cannot subscribe to the view expressed by the learnedDistrict Judge that the defendant-appellant has failed to complywith the provisions of section 86(2), for it is to be seen that a validpetition and affidavit to purge the default was before him when hemade the impugned order.
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In the case of Coomaraswamy v MariammaperWeerasuriya, J:
“It is manifest that the application to purge the default hadbeen made prior to the service of the decree. However, itwould appear that the requirement for the party to make theapplication within 14 days of the service of the decree doesnot preclude the defendant to make an application before ser-vice of the decree and for the Court to inquire into such appli- isocation after decree was served.”
For the foregoing reasons, I would hold that the order of thelearned District Judge dated 22.11.1994 as well as the order dated
cannot stand and should be set aside. Accordingly Iwould allow the appeal and set aside the orders of the learnedDistrict Judge dated 22.11.1994 and 15.06.1994 and remit thecase to the appropriate District Court for the learned District Judgeto hold a fresh inquiry into the application of the defendant-appel-lant to purge the default on the merits and proceed to hear anddetermine the case. The plaintiff-respondent will pay Rs. 5000/- as 190costs of this appeal.
DISSANAYAKE, J.I agree.
Appeal allowed.