020-SLLR-SLLR-2001-V-1-THE-CEYLON-BREWERY-LIMITED-v.-JAX-FERNANDO-PROPRIETOR-MARADANA-WINE-STOR.pdf
THE CEYLON BREWERY LIMITED
v.JAX FERNANDO, PROPRIETOR, MARADANA WINE STORES
SUPREME COURTFERNANDO, J.
WIJETUNGA, J. ANDWEERASEKERA, J.
SC APPEAL NO. 21/98CA REVISION NO. 659/97DC COLOMBO NO. 17168/MR18™ OCTOBER, 1999
Civil Procedure Code – Application to vacate a default decree againstthe defendant – Section 86(2) of the Civil Procedure Code – Whether theperiod prescribed by section 86(2) is directory or mandatory.
Held :
Section 86(2) of the Civil Procedure Code confers Jurisdiction on theDistrict Court to set aside a default decree. Hence the period of 14 daysprovided by that section to make an application to set aside a defaultdecree Is mandatory.
Per Fernando, J.
“It Is settled law that provisions which go to Jurisdiction must be strictlycomplied with”
Case referred to :
1. Sri Lanka General Workers Union v. Samaranayake (1996)2 Sri LR 265 at 273-274
APPEAL from the Judgement of the Court of Appeal reported In (1999) 2Sri L R 61
S.L. Gunasekera with Kushan de Alwls for plaintiff – respondent -appellant
Sanjeewa Jayawardena for defendant – petitioner – respondent
Cur. ado. vult.
SC The Ceylon Brewery Limited u. Jax Fernando. Proprietor. 271Maradona Wine Stores (Fernando , J.)
October 10, 1999.
FERNANDO. J.The only question of law which arises in this appeal iswhether the period of 14 days provided in section 86(2) of theCivil Procedure Code for an application to set aside a defaultdecree is mandatory or directory.
The plaintiff obtained a default decree. The defendant filedhis application to set aside that decree on the 15th day. '
The Court of Appeal held that section 86(2) was directory,and that accordingly the application made on the IS* day shouldbe entertained.
We are of the view that Section 86(2) of the Civil ProcedureCode is the provision which confers jurisdiction on the DistrictCourt to set aside a default decree. That jurisdiction dependson two conditions being satisfied. One condition is that theapplication should be made within 14 days of the service of thedefault decree on the defendant.
It is settled law that provisions which go to jurisdiction mustbe strictly complied with. See Sri Lanka General Workers Unionvs. Samaranayake,111
I therefore set aside the Judgment of the Court of Appeal onthat point.
However, the learned District Judge entertained theapplication to set aside the dafault decree after the period of 14days had expired, on the ground that intervening holidays hadto be excluded. The Court of Appeal held, correctly, that thelearned District Judge was in error, because interveningholidays cannot be excluded in computing a period exceedingsix days.
272
Sri Lanka Law Reports
120011 1 Srt L.R.
Accordingly, the order of the District Court dated 4.7.97 isset aside, and the ex-parte decree previously entered is affirmed.
There will be no costs.
WIJETUNGA, J.I agree.WEERASEKERA, J.I agree.Appeal allowed; ex parte decree affirmed.