75—D. G. (Inly.) Kurunegala, 10,264.
Judgment by default—Several defendants—Contest by one defendant—Final judgment against others—Civil Procedure Code, ss. 87and 90.
Where one of several defendants in an action appears andcontests the case, the Court has no power to enter final judgmentagainst the absent defendants without adopting the procedure ofan ex parte trial and decree nisi.
Section 90 of the Civil Procedure Code merely enables the Courtto defer the ex parte trial and the entering of the decree nisi againstthe default defendants to a later stage of the action.
HIS was an action brought by the plaintiff-respondent for
declaration of title to 16/28 of a land. There were twenty-three defendants to the action who were co-owners with the plaintiff.Answer was filed oh behalf of the 4th, 5th, and 13th defendantsonly, the other defendants did not appear. At the trial only the5th defendant contested the plaintiff’s title. On May 18, 1928,the Judge entered decree against all the defendants for title asclaimed and damages. The appellant thereafter petitioned theCourt and asked that the decree entered against him be set asideon the ground that being in default decree nisi should have beenentered against him before final judgment could be passed. TheCourt made order refusing to set aside the judgment.
Ranawake (with him Peiris), for the 10th defendant, appellant.—Where a defendant in a District Court case fails to appear and .answer, or fails to appear at the trial after due notice, the procedureto be followed is laid down in strict and unambiguous terms insection 85 of the Civil Procedure Code. If there are severaldefendants and some are absent, then as against these latter theproceedings are ex parte, a decree nisi should be passed and noticeof the same should be served personally. This procedure has notbeen followed and a final decree has been entered against the10th defendant.
H. V. Per era (with him Rajapakse) for the plaintiff, respondent.—The procedure laid down in section 85 does not apply where thereare several defendants, and some are in default. In such a case.the procedure laid down in section 90 applies. There is no need

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‘Ohelty v.Maria
to proceed by an ex parte trial and enter a decree nisi. TheCourt is entitled on pronouncing judgment to enter a final orderagainst the- absent defendants as well. A Judge should be allowedthis discretion, otherwise proceedings can be unnecessarily protractedand the plaintiff almost harassed, as has happened in this case.Counsel cited Doorga Chwru Sett v. Skamanund Oossain et al.1
Ranawdke, in reply.—Under the Indian Code there is no procedurefor entering a decree nisi. Our section 90 merely provides forpostponing the entering of a decree against an absent defendant.If the procedure of the learned District Judge is correct, it wouldthrow open the door to fraud on the part of a scheming plaintiff.
July 3,1928. Drieberg A.J.—
In this action the respondent prayed for declaration of title to16/28 of a land, making as parties to the action twenty-threedefendants who were co-owners with him.
There was appearance by a Proctor for the 4th, 5th, and 13thdefendants only; the other defendants though served with summonsdid not appear and sanswer.
At the trial it was noted that of these defendants only the 5thdefendant contested the respondentia title. On May 18, 1926, theCourt entered decree against all the defendants for title as claimedand damages at the rate of Rs. 250 a year from August 25,1922.The correct procedure of entering decree nisi against the defendantswho had failed to appear and answer was not followed.
Subsequently the 4th defendant appeared before Court andproved that he had not granted a proxy to the Proctor whorepresented him, and the Court set aside the decree entered againsthim and he was allowed to defend the action on terms.
Thereafter the appellant petitioned the Court and asked thatthe decree entered against him be set aside on the ground thathaving made default in appearing after service of summons thereshould have been decree nisi and service of the decree nisi on himbefore final judgment could be passed against him. His case isthat he is the owner of a 1/28 share under the same title as therespondent, whose right to 16/28 he does not contest. He says thaton receiving summons he went to a Proctor, who then told himthat he was acting for the respondent and that he formed theimpression that as he did not dispute the title of the respondentthere was no necessity for him to file answer.
It is clear that the procedure required by section 87 of the CivilPrecedure Code was not followed. Mr. H. V. Perera, however,contended that section 87 had no application where some defendantswere in default and the others appeared, and that in such a caseI (1S69) 12 W. R. 276.
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section 90 of the Code was applicable, and that under it the Courthad the power to enter final judgment against the absent defendantswithout adopting the procedure of an ex parte trial and decree nisi.In my opinion this section has not got such an effect. It doesnothing more than relieve the Court from proceeding to an ex pa/rtetrial and decree nisi on the failure of some of the defendants toappear on the day fixed for answer or for the hearing of the actionwhen there is qne defendant at least who is contesting the actionand against whom the action must proceed, and it can defer entering. decree nisi against the defaulting defendants to a later stage of theaction. There is good reason for this, for the defence of the con-testing defendant may show to the Court that the -plaintiff is notentitled to judgment even as against the absent defendants.
Mr. Perera cited the case of Doorga Chum Sett v. ShamanundOossain et al.1, which was a judgment in 1869 on section 116 of theearly Indian Code, which corresponds to section 106 of the Codeof 1882 and is now Order 9, Rule 11, of the present Code. Itprovides that—;
“ Where there are more defendants than one, and one or moreof them appear and the others do not appear, the suitshall proceed, and the Court shall, at the time of pro-nouncing judgment, make such order as it thinks fit withrespect to the defendants who do not appear ”.
Under the Indian Code there is no decree nisi, and where adefendant is in default of appearance on service of summons, theCourt proceeds ex parte, which means that it satisfies itself that aprima facie case has been made out, and enters judgment (Order 9,Rule 6).
Our section 90 has been taken over from the provisions of theIndian Code, but with the necessary adaptation to the local require-ment of the decree nisi, and permits the entering of a decree againstan absent defendant to be deferred to a later or a final stage of anaction where there is one defendant contesting. But under ourCode any decree then entered against the absent defendants mustbe a decree nisi.
The appeal is therefore entitled to succeed, and the appellantshould be allowed to appear and defend the action. We do notthink that it would serve any useful purpose to require him afterthis lapse of time to satisfy the Court that he was prevented -fromappearing and filing answer by accident or misfortune, as requiredby section 87. Without accepting his explanation in its entiretythere is sufficient ground to show that he misunderstood the situationand refrained from defending the action because he did not deny therespondent’s title. The procedure required by the Code not having1 (.1869) 12 W. S. 376.
Dsmasma• AJ.
Subra-maniamOhetty v.Maria
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DaiBBKaaA.J. ,
Subra-maniamChetty v.Maria
been followed, the correct order in this case is to set aside thedecree against the appellant and allow him to defend the action,and we make order accordingly.
The respondent will pay to the appellant the costs of this appealand of the proceedings in the District Court consequent on theappellant’s petition.
Fisher C.J.—I agree.
Appeal allowed.