PAKIR MOHIDIN v. MOHAMADU CASIM.

PAKIR MOHIDIN v. MOHAMADU CASIM.

D. C., Galle, 5,643-

Practice.-failure to yet ready for trial-Ex parte trial-Application to vacate judgement-Negligence of proctor-Inadmissibility of affidavit. sworn to before a Justice of the Peace, who was defendant's own proctor.

Where defendant, after filling answer, took no steps to get ready for trial, so that be case proceeded ex parte and a, decree nisi Was entered against him, and he applied a fortnight afterwards to vacate the judgment on the ground that he was not present in found when the date of trial was fixed, and that his prortor's clerk subsequently gave ft date which he mistook for the 27th July. Whereas the proper date was the 27th June, with the result that he. failed to instruct his proctor in due time,-

Held, it was the duty of his proctor to have informed him of the proper date of trial and to have asked for instructions, and that as the proctor did not appear to have done his duty, he was to blame for the absence of the defendant and the defendant must suffer for the fault of his proctor.

An affidavit sworn by the defendant before his own proctor is not, according to the practice of English Courts, admissible in evidence, and such practice should be followed hero.

THIS was an appeal from an order of the District Judge refusing to set aside a decree nisi. It appeared that the action was filed on the 27th October, 1899. against the defendant under

section 247 of the Civil Procedure Code; that on the 10th January following the defendant filed his proxy, and a week afterwards his answer. The trial was fixed for the 27th June, on which day the defendant failed to appear when the case was called. His proctor having withdrawn from the case for want of instructions from the defendant, the case proceeded en parte, and a decree was entered against him on the same day.

On the 5th July the proctor for the defendant presented a petition praying that the judgment signed against him be vacated and a new trial had, on the ground that the defendant had mistaken the date of trial.

The defendant's petition was supported by an affidavit sworn to before his own proctor, Mr. N. Dias Abeyesingha, who is a Justice of the Peace.

The District Judge refused the defendant's application.

Defendant appealed.

Bawa, for defendant, appellant.

H. J. C. Pereira, for respondent.

16th October, 1900. Bonser, C.J. -

The defendant is a trader residing in the Galle Fort. The action was commenced on the 27th October, 1899, and was an action under section 247 of the Code by an execution-creditor against a successful claimant, who resisted the execution of a decree. On the 10th January, 1900, the defendant filed his proxy and a week afterwards his answer. On the latter day the trial of the action was fixed for the 27th June, which gave more than five weeks to the parties to prepare their case. When the case was called on, the defendant's proctor appeared and said he had no instructions whatever from his client, and that he withdrew from the case. Thereupon the case proceeded etc parte in the usual way, and a decree was entered up on the same day. On the 5th July, nearly a fortnight afterwards, the proctor for the defendant presented a petition praying that the judgment be vacated and a new trial had, on the ground that the petitioner had mistaken the date of trial. This petition was supported by an affidavit made by the defendant.

This affidavit ought not to have been received by the District Judge, for it was sworn before the deponent's own solicitor, Mr. Abeyesingha. The practice in England has been uniform, that an affidavit sworn under such circumstances will not be received, and we think that the English practice should be followed here, and I have in previous cases so held.

The explanation given by the defendant of his mistake is this. He was not present in Court when the date of the trial was fixed. Subsequently, he asked his proctor

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