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SILVA v. GRERO.
D. C., Colombo, 5,601.
Civil Procedure Code, »». 80 and 87—Appeal against decree abeolute for default—“ Appearance ” in Court—Decree made abeolute after appearance andthawing of ineufficient cause.
Held, per Lawrie, A.C.J., and Withers, J. (Browne, J., ditstn-tiente), that a decree nisi made absolute in the presence of a defendant,who appeared and attempted to show cause against it, is nevertheless adecree absolute for default, and hence not appealable.
Held, per Lawrie, A.C.J., that the mere bodily presence of adefendant in court is not “ appearance.” It must be an appearance onthe proper day, and if being absent on that day he comes into Courteither personally or by Proctor on a later day, his non-appearanceon the proper day must he accounted for, before the late coming canbe accounted an “ appearance " in the legal sense.
Held, per Browne, J. (dieientiente), that the term “ appear ” insections 83-87 of the Civil Procedure Code means the first formalpresentation of himself by the defendant to the Court in person or byproxy ; and that “decree absolute for default ” in section 87 means “ forentire default of appearance prior to entry thereof.”
D. C.. Badulla, 370, Natchiappa Chetly v: Muttu Kangany (8 C. L.R. 110), considered and followed.
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N this action, summons having been reported duly servedon the defendant, and the defendant not having entered
appearance on the returnable day, the case was heard ex parte indue course and decree nisi entered in favour of plaintiff. On theday fixed for making the decree absolute, defendant appeared byProctor, and for reasons mentioned in his affidavit moved to havethe decree nisi set aside, and to be allowed to file answer. Afterargument, the District Judge held that the defendant had notestablished his right to have the decree set aside on the ground ofirregularity, and that he had failed to excuse his default. Thedecree nisi was made absolute against him.
The defendant appealed.
Van Langenberg, for plaintiff respondent, took the preliminaryobjection that an appeal did not lie, and cited Natchiappa v. MuttuKangany (J2 C. L. B. 110).
Pereira, for defendant appellant, submitted that the case citeddeserved to be re-considered.
Their Lordships ordered the case to be listed for argument beforethe Collective Court.
Pereira, for defendant appellant. A decree absolute for defaultis a decree made absolute, in consequence of the default of adefendant to show cause against a decree nisi. Against such adecree absolute, the Code, section 87, enjoins there shall be noappeal. But the decree in the present case is not a decree absolutefor default. The defendant appeared and showed cause againstthe decree nisi being made absolute ; the plaintiff was heardcontra; and the decree made absolute. That was an order interpartes, and the defendant could not move the Court below to setit aside. His only remedy was by appeal, and an appeal lay undersection 75 of the Courts Ordinance. There is a distinction drawnin section 87 of the Code between a decree absolute for defaultand a decree absolute after cause shown. That section providesfor the setting aside, on the motion of the defendant, of a decreeabsolute for default, by the very Court which passed such decree,and it also provides for an appeal from an order setting aside orrefusing to set aside such decree. The decree absolute for defaultcontemplated by the Code is therefore decree entered ex parte,but the present decree was entered after both parties were heard,and it was not therefore a decree absolute for default. If noappeal is allowed from a decree such as the present, a defendantwho deliberately absents himself after service on him of notice ofdecree nisi would be in a better position than one who appears to
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such notice and shows cause. The latter will have no remedyagainst the Court’s order making the decree absolute, while theformer might move to set aside such order and appeal against arefusal of the Court to do so.
If the word default in section 87 referred to the original defaultfor which the decree nisi was entered, then there would be theabsurdity of every decree absolute being a decree absolute fordefault.
Van Langenberg, for plaintiff respondent, contra.
Cur. adv. milt.
28th February, 1895. Lawbie, A.C.J.—
This is an appeal from a decree in these terms : “ The decree“ mat coming on for final order before . . the District Judge of“ Colombo, on the 12th day of June, 1894, being the day appointed“ to show cause against it, of which decree the defendant received“ notice, as appears by the affidavit of., server, dated
“ 2nd June, 1894. and the plaintiff, appearing by his Proctor, and“ the defendant, and no cause being shown to the contrary, the“ decree nisi is made absolute.”
Is it possible to read this decree otherwise -than as a decreeabsolute for default ? If it be a decree absolute for default, thenthe Code is explicit no appeal shall lie.
If I understand the argument of the appellant aright, he con-tends that the fact of the appearance of the defendant in theDistrict Court, mentioned in the decree, showed that it was not adecree absolute for default, but that it was a final decree interpartes, against which an appeal lies.
If that be the argument of the appellant, I am against him.
It seems to me that the mere bodily presence of a defendant incourt is not an appearance.
It must be an appearance on the proper day, and if beingabsent on that proper day he comes to Court either personally orby Proctor on a later day, his non-appearance on the proper daymust be accounted for before the late coming can be accountedan appearance in the legal sense.
The defendant in the present case was in Court, but he did not“ appear ” on the day when the decree under appeal was pro-nounced. If on that day he tried to be heard, if he presentedaffidavits, if he tendered proof, the decree is silent; but the recordshows that he made an attempt to show that his default to appearon the proper day was reasonable, but the same record shows thatthe Court held these reasons to be unreasonable; the District Judge
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treated the coming to Court as no appearance ; he made the decreenisi absolute—why ? Because the defendant was in default.
Therefore it seems to me that it is impossible to treat thisdecree otherwise than as a decree absolute for default, againstwhich no appeal lies. I am unable to draw a distinction betweenthis case and that reported in 2 Ceylon Laic Reports, 110. It isindeed admitted that the facts are the same, but that was decidedby my brother WITHERS and me, whereas this comes before a FullCourt, and we were ready to re-consider the point. As I gave asilent concurrence with my brother on the former occasion, it isright that I should give my reasons now.
Dealing then with this appeal as against the decree of the 12thJune, I am of the opinion that that was on a decree absolute fordefault, and that no appeal lies.
I am not sure that an appeal would not lie against a DistrictJudge’s finding that the cause shown was not reasonable. If theJudge had first adjudicated on the grounds stated and supportedby the defendant, and had distinctly and separately found thatthese were unreasonable, and ordered that a decree be entered, Iam not sure that an appeal would not lie against that finding andorder. I reserve my judgment, should an appeal from such afinding or order come before me. An appeal might lie, but it isnot likely that the Appellate Court would upset the decision of theDistrict Court. Unfortunately in cases where a defendant hasmerely to show reasonable grounds for his default, he usuallystates grounds which are abundantly reasonable, but which oninvestigation turn out to be untrue j I think the discretion givento the Judge to adjudicate on the reasonableness and truthfulnessof cause shown can safely be left with him.
I am for rejecting this appeal, as an appeal from a decreeabsolute for default. I adhere to the judgment in the casereported in the second volume of the Ceylon Law Reports, 110.
Withers, J. —
I quite feel the force of Mr. W. Pereira’s argument that the CivilProcedure Code in the 86th and 87th sections passes over the case ofan order nisi made absolute in the presence of the party who hasappeared to show cause against the order nisi for default beingmade absolute, and leaves it to be regulated by the 75th section ofOrdinance No. lof 1889, which enacts that “subject to the provisions“ in that behalf in the Criminal Procedure Code or any Ordinance“ amending the same, provided any party who shall be dissatisfied“ with any judgment, decree, or order pronounced by a District
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“ Court, may (excepting when snch right iB expressly disallowed)“ appeal to the Supreme Court against any such judgment, decree, or“ order, &c., from any error in law or in fact committed by such“ Court,” &c., but I am confronted by the words “ no appeal shalllie against any decree nisi or absolute for default," which form thefirst sentence of the 87th section of the Civil Procedure Code.They expressly disallow an appeal from any decree nisi or absolutefor default.
It cannot be denied that an order nisi made absolute for defaultis none the less a decree absolute for default because it has beenmade after hearing cause shown by the party in default.
The default is the ground both of the order and the decree.
No doubt that the 87th section goes on to say that, in the event ofa decree being made absolute in the absence of a party who has orshould have had notice of the order nisi, the party aggrieved mayapply to have the decree set aside for the grounds assigned in thesection, and that either party may appeal from the final order onthat application. But this is the only relaxation of the provisionthat “ no appeal shall lie agafast any decree nisi or absolute fordefault.” So I still understand the provision of this section, andI abide by my former opinion in the case of Nachippa Chetty v.Muttoo Kangani, reported in 2 Ceylon Law Reports, 110.
Thus the preliminary objection of Mr. Van Langenbergsucceeds, and the appeal must be dismissed.
I am free to consider and take part in the decision of thepreliminary objection raised for the respondent that no appeal liesfrom the order which, as District Judge, I made in this action onthe 12th June last, for the question of'right to appeal could nothave been, and never was raised before me. And I have thegreater satisfaction in holding, as I am prepared to do, that theobjection is untenable, in that thereby it is made possible to havemy order considered in appeal. Defendant failed to appear tosummons, and I heard the case ex parte, receiving plaintiff’sevidence, and entered decree nisi. When plaintiff moved to makeit absolute, Mr. Perera for defendant sought both to satisfy methat there had been reasonable ground for default, and to showgrounds why plaintiff, on the material before the Court, was notentitled to have decree entered in his favour. Over-ruling hisobjection I made the decree absolute, and from my decision heclaims to have right to appeal, desiring to have reconsidered thedecision of this Court in 370,D C., Badulla (2 Ceylon Law Reports,
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110), which is quite iu point, pronounced by the other members ofthis Court, who have acceded to his desire.
The view I take I base upon the use of the term “appear” insections 85 to 87, which I take to mean the first formal presentationof himself by the defendant to the Court in person or by proxy.Section 86 is clearly to be divided into two parts, according as towhether the defendant does or does not appear upon service of thedecree nisi, and I would construe it and section 87 as if they werethus written :—
If having appeared to the notice defendant shall fail tosatisfy the court, &c., then the court shall make the decree absolute,&c., as is in this Ordinance provided. If, however, the defendantshall satisfy the court there were reasonable grounds, &c., the courtshall set aside the decree, &c., as the court shall deem fit.
(a) If the defendant does not appear on the day appointedin the decree nisi for showing cause, and if the court is satisfiedthat notice of the decree has been duly served, then the court shallmake the decree absolute, &c., Ordinance hereinafter provided.
(b) No appeal shall lie against any decree nisi or absolute fordefault, but if any defendant against whom a decree absolute fordefault shall have been passed shall within a reasonable timeappear and satisfy the court, &c., the court may set aside the decreeor refuse to do so, which order shall be liable to appeal.
A defendant, I take it, cannot ordinarily “ appear ” twice in anaction. Hence the provisions of the present section 87 apply onlyto the case when he first appears after decree absolute entered, andshow that the “decree absolute for default ” in its first line means“ for entire default of appearance prior to entry thereof.” When heappears upon service of decree nisi, and fails to obtain grace, theorder made is one inter partes, and the court would not allow himto appear again under section 87 and re-discuss its previousruling. Hence no special provision has been made to enable himto challenge the ruling of the Court other than the ordinaryprocedure of appeal.
He is surely entitled to it. If he delayed to appear till afterdecree absolute were entered, and then appeared and was un-successful, section 87 gives him a procedure whereby he can wina right of appeal therefrom. Why then, when he comes earlierinto Court, should he be more hardly treated by being refused anyappeal at all from an order like the present P For, as I have said,the Court would not allow him to re-appear and redargue undersection 87, and thereby win an entrance through the gate of appealwhich a greater defaulter has provided for him.
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Dividing tbe sections as I have done, I would hold that mysection 86 is entitled to be supplemented by the ordinary appealright in section 75 of the Conrts Ordinance and procednre, mysection 87 (a) being specially supplemented by the provisions init enabling appeal.
I would therefore hold that the defendant is entitled to havethis appeal heard.
SILVA v. GRERO