214 ABEYESONDERE, J.—Appuwa v. Assistant Commissioner of Agrarian
1963Present: Herat, J.SINNA VELOO, Appellant, and MESSRS LIPTON LTD.,
8. C. 218161—C. B. BadiiUa, 16085
Compromise of action—-Notification to Court—“ In the presence of parties ”—
Incapacity of a parly to resile from the settlement—Civil Procedure Code, s. 408.
When parties to an action enter into a settlement and are represented bytheir Proctors, they need not be personally present when the settlement isnotified to the Court in terms of section 408 of the Civil Procedure Code.
Once the terms of settlement as agreed upon are presented to Court andnotified thereto and recorded by Court, a party cannot resile from thesettlement even though the decree has not yet been entered.
Appeal from a judgment of the Court of Requests, Badulla.
O.jF. Sethukavdlar, for Defendant-Appellant.
S. J. Kadirgamar, with K. N. Choksy, for Plaintiff-Respondent.
Cur. adv. vult.
HERAT, J.—Sinna Veloo v. Messrs Lipton Ltd.
September 11, 1963. Hebat, J.—
The Plaintiff-Respondent sued the Defendant-Appellant for ejectmentand damages from a boutique on Dambatenne Estate at Haputale on the19th May, 1961. Terms of settlement were filed in Court and the casewas directed to be called on the 3rd July, 1961.
The terms of settlement provided that the case was to be called on the3rd July in order to find out whether one of the parties had carried outone of the terms of the settlement, and for the decree to be entered on thatdate. But in fact, decree was entered on the 19th May, 1961, namely thedate the terms of settlement were tendered. On the 28th of June, 1961,the Defendant-Appellant, having revoked the proxy given to his proctorMr. K. V. Nadarajah, filed a fresh proxy in favour of Mr. Sebastiantogether with a Petition and moved to set side the decree entered onthe ground inter alia that the settlement had been entered into withouthis consent and notified to Court in his absence. As regards the pointrelating to the absence of parties, both parties were represented by theirProctors who were present, and, in my opinion, Section 408 of the CivilProcedure Code, when it speaks of the settlement being filed in the presenceof parties, does not mean the presence of parties personally, for the Codeprovides that the parties are represented by their Proctors unless theCode expressly requires personal appearance. That the Defendant-Appellant was fully aware of the terms of settlement and consented to itappears from the evidence in the case and from the finding of the Com-missioner on the point. Once the terms of settlement are presented toCourt as an agreed upon settlement, the Court cau enter a decree thereon.Once such a settlement so agreed upon is presented to Court and notifiedthereto and recorded by Court, a party cannot resile from the settlementeven though the decree has not yet been entered. See the judgment ofMr. Justice Drieberg, with whom Chief Justice Fisher agreed inMeis Singho v. Josie Perera1. The appeal is dismissed with costs.
SINNA VELOO, Appellant, and MESSRS LIPTON LTD., Respondent