027-SLLR-SLLR-2005-V-1-WICRAMARATNE-vs.-SENANAYAKE.pdf
Sri Lanka Law Reports
(2005) t Sri L. R.
777
WICRAMARATNE
VS.
SENANAYAKE
COURT OF APPEALAMARATUNGA, J. ANDWIMALACHANDRA, J.
A. 136/2001
C. GAMPAHA 43449/MMAY 12,2004
Civil Procedure Code Cap. Llll sections 35, 85(1) 704(1). 705(1) and 710 – Aliidavitimperative – Sum justly due – Summons returnable dale – Defendant absent – Copy ofdecree served on defendant – Non existent order nisi made absolute – Validity -Decree not signed by judge – Is it a nullity?
The plaintiff respondent instituted action under Cap. 53 of the Code to recover a suin ofmoney alleged to be due on a cheque. No affidavit was filed. The trial court ordered thatsummons be served on the defendant, and when the defendant failed to appear in courtthe court made order nisi absolute.
HELD
Section 705(1) of the civil Procedure Code makes it mandatory for the plaintiff to makean affidavit that the sum which he claims is justly due to him from the defendant. Wholeof the proceedings commencing with the institution of the action are bad.
There was no summons returnable date, if the defendant is absent, the court shouldproceed to hear the case ex parte and enter decree in favour of the plaintiff in terms ofsection 85.
After entering the decree under section 85(1) the court shall cause a copy of thedecree to be served on the defendant.
It is only after entering the decree properly signed by the judge, the court can issuethe writ of execution. A writ of execution not founded on a valid decree is a nullity •proceedings thereunder are void.
APPLICATION in revision from an order of the District Court of Gampaha.
S.A.D.S. SURAWEERA for defendant petitioner petitioner.
P.C.Gunawardena for plaintiff respondent respondent.
Cur. adv. vult.
June 4,2004
K. WIMALACHANDRA., J.
This is an action filed by way of summary procedure under chapterLI I i of the Civil procedure Code, to recover a sum of money alleged to bedue on a cheque.
223
• CAWicramaralne vs. Senanayake (Wimalachandra, J.)
The plaintiff instituted this action by presenting a plaint along withsummons in Form No. 19 in the first schedule to the Civil Procedure Code,the cheque, proxy and the documents annexed to the plaint (vide JournalEntry No. 1 of the case record of the District Court).
It is to be observed.that the plaintiff has not filed an affidavit which isa mandatory requirement in terms of section 705(1) of the Civil ProcedureCode. Section 705(1) of the Civil Procedure Code makes it mandatory forthe plaintiff to make an affidavit that the sum which he claims is justly dueto him from the defendant. In order to entitle a person to sue under ChapterUll of the Civil Procedure Code it is essential that the facts set out in theaffidavit must show that the sum claimed was rightly and properly due.According to the journal entry dated'06.01.1999 in the District Court caserecord, the learned District Judge has ordered that summons be servedon the defendant. According to the Journal entry dated 28.04.2000summons was served on the defendant. The summons read as follows :
This summons is in prescribed Form 19 in the first schedule to theCivil Procedure Code. On 15.5.2000 the defendant failed to appear in Courtalthough summons had been served on him. (vide – journal entry No. (4)dated 28.4.2000). On that day, i.e. 15.5.2000, the learned District judgehad made the following order (journal entry No. 5).
224
Sri Lanka Law Repons
(2005) 1 Sri L. R.
It is to be noted that in this case there was no order nisi to be made. absolute. On the summons returnable date if the defendant fails to appear,the Court is required to enter decree (vide – Section 704(1) of the CivilProcedure Code). In my opinion, in this situation the Court should proceedto bear the case ex-parte and enter decree in favour of the plaintiff in termsof section 85 of the Code, as at this stage section 710 of the Code applies.Section 710 reads as follows :
“Except as provided in this chapter, the procedure under thischapter shall be the same as the procedure in actions institutedunder Chapter VII”
The Chapter VII deals with the institution of actions of regularprocedure.
After entering the decree in terms of section 85(1) of the Code, theCourt shall cause a copy of the decree so entered to be served on thedefendant in the manner prescribed for the service of summons, (videsection 854 of the Code).
In the circumstances, the order made by the learned judge making anon-existent order nisi absolute was wrong and must be set aside.
Another fundamental error made by the learned judge was the issueof a writ of execution without a decree being signed by the judge. It is onlyafter'entering the decree properly signed by the judge, the Court can issuethe writ of execution. A writ of execution not founded on a valid decree isa nullity and the proceedings thereunder are void.
In the circumstances, I am of the opinion that the whole of theproceedings commencing with the institution of this action are altogetherbad mainly for the reason that the plaint has not been accompanied by anaffidavit that the sum which he claims is justly due to him from the defendant.If I may say so, the whole of the proceedings were altogether bad andineffectual and all acts done by the Court in the course of the proceedingsmust fall through. Moreover the writ of execution taken out against thedefendant before entering the valid decree is void and of no effect.Accordingly, all orders made by the learned Judge cannot be allowed tostand.
CA.Dias Vs225
Wanigaratne (Amaratunga, J.)
For these reasons, I set aside the orders of the learned DistrictJudge made in this case and send the case back with direction that theplaintiff shall make an affidavit in terms of section 705(1) of the CivilProcedure Code if he so desires to proceed against the defentant by wayof summary procedure under Chapter LIN of the Civil Procedure Code. Thelearned District Judge is directed to proceed with the case upon the plaintiffcomplying with the provisions of Chapter Llll of summary procedure onliquid claims. Accordingly the appeal is allowed.
The defendant is entitled to the costs of this appeal.
AMARATUNGA, J. -1 agree
Appeal allowed; case sent back.