IMAM V. PETER AND OTHERS

COURT OF APPEAL
BASNAYAKE. J.
CHITRASIRI. J.
CALA 492/2006
DC KURUNEGALA 6653/L ,

Civil Procedure Code - Section 84, Section 86, Section 839 - Vacation of ex parte decree with consent of parties - Legality? - Trial fixed - Return of commission after trial date - Legality? - Inherent Power of Court to prevent abuse.

The Court fixed the case ex parte against the 1st defendant and after hearing, judgment was delivered. The 1st defendant brought to the notice of Court that the Court has issued a commission for a date beyond the trial date, at the instance of the plaintiff, and as the trial cannot be ready until the commission is executed, the Court should have cancelled the trial date. The Court with the consent of the plaintiff vacated the ex parte judgment and allowed the commission returnable date to stand.

The plaintiff sought to have the order vacating the ex parte order set aside on the basis that Court has no jurisdiction to vacate an ex parte decree with the consent of parties. The plaintiff contended that the procedure laid dawn under Section 86 should have been followed.

Held

(1) Section 86 (2) - procedure