MUTTAIYA CHETTY v. ARUMUGAM.

MUTTAIYA CHETTY v. ARUMUGAM.

D. C., Kandy, 15,301.

Civil Procedure Code, chapter 53-Action on promissory note-Summons to appear, with liberty to obtain leave to defend within fourteen days-Application for such leave made out of time-Right of Court to impose terms in giving leave to defend.

Where, in an action on a promissory note brought under chapter 58 of the Civil Procedure Code, a defendant did not apply in time for leave to appear and defend the suit, the Court is entitled, under section 706 of the Code, to put him on terms as a person in default as regards the defence of the suit.

The effect of the decisions of the Supreme Court in Arunasalam Chetty v. Assina Marikar (2 Browne, 295) and Davies & Co. v. Perera (ib. 297) explained.

IN this case two defendants were sued on a promissory note, and summons issued against them under chapter 53 of the Civil Procedure Code to appear and obtain leave to defend within fourteen days. The Fiscal reported that the summons was served

on the second defendant on 16th May, 1902. On the 31st May he applied for leave to defend, but his application was refused as he was two days out of time. He renewed his application on the 5th June, and explained in his affidavit that summons was served on him only on the 21st May, and that his defence was that he did not make the note. The Court ordered him to submit proof of the date of service of the notice to the plaintiff. The defendant failed to give such notice. Later on his counsel cited to the Court the case of Arunasalam Chetty v. Assena Marikar (2 Browne, 295) and moved for leave to appear and defend, when the District Judge (Mr. Gr. A. Baumgartner) allowed the motion, on condition that he gave security.

His reasons were communicated as follows to the Registrar of the Supreme Court in a letter, in reply to an order of the Supreme Court calling upon him to state his reasons: -

" The second defendant's application for leave to defend was out of time according to the Fiscal's return of service of summons on him. The Fiscal reported that summons was served on him on 16th May. The second defendant, however, in his affidavit of 4th June asserted that he was served on 21st May. If that were so, he was in time. He was ordered to notice the plaintiff and to prove the date of the service in his presence. As he failed to comply with that order, I regarded him as out of time, and as not entitled as a matter of right, whatever his defence might be, to enter upon that defence.

'" Mr. Beven, for the second defendant, cited 2 Browne's Reports, 295, without offering any further proof than the second defendant's affidavit to contradict the Fiscal's return. I considered that strictly I might have refused leave to defend, as the second defendant had not proved the Fiscal's return to be incorrect. As an indulgence I gave him leave to defend on the terms that he should give security."

The second defendant appealed.

F. M. de Saram, for the appellant, cited Arunasalam Chetty v. Assena Marikar (2 Browne, 295) and Davies & Go. v. Perera (ib. 297), and contended that it was open to a defendant, sued on a liquid claim by way of summary procedure, to come in and apply for leave to defend at any time before decree was entered, and that he should not have been put on terms as regards his defence.

Bawa, for the plaintiff, was ruled not entitled to be heard, as the plaintiff was not a respondent to the appellant. But the Court heard him as amicus curice.

Cur. adv. vult.

16th June, 1903. Wendt. J.-

The two defendants were sued under chapter 53 of the Civil Procedure Code on a promissory note, and were required by the summons to appear and obtain leave to defend within fourteen days of service. The first defendant was granted leave to defend upon giving security to meet plaintiff's claim. An application for leave to defend, made by second defendant on the same day (31st May, 1902), was refused on 4th June, becau

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