Sockalingam Chetty V. Muttiah Pulle

Preterit: De Sampayo and Dalton JJ.

SOCKALINGHAM CHETTY v. MUTTIAH PULLE.

54-D. C. Colombo, 13, 869.

Summons-Action by way of summary procedure-Order to appear and defend within ten days-Mistake in summons issued.

Where, in an action by way of summary procedure, the Court ordered summons on the defendant to appear and defend within ten days of the service, but the summons itself, by a mistake, required him to appear within seven days; and where judgment was entered against him before the expiry of ten days.

Held, that the defendant was not entitled to have the judgment set aside as of right.

AN action on a promissory note by way of summary procedure under chapter LOT. of the Civil Procedure Code. The District Judge accepted the plaint and ordered summons on October 25 requiring the defendant to appear within ten days of the service of the summons. The special form of summons, however, which was issued provided that the defendant should appear and obtain leave to appear and defend within seven days of service of summons. The plaintiff obtained judgment on November 12, 1924, less than ten days after the service of the summons. On January 5, 1925, the defendant appeared and moved to vacate the decree on the ground that the judgment had been entered prematurely. The District Judge refused the application.

Cooray, for defendant, appellant.

Samarawickreme, for plaintiff, respondent.

May 11, 1925. De Sampayo J-

This is an action upon a promissory note. The plaintiff, when he instituted the action, adopted the summary procedure on liquid claims provided in chapter LIII. of the Civil Procedure Code. The District Judge accepted the plaint and ordered summons on October 25, by which the defendant was required to appear within ten days of the service of the summons. The special form of summons, however, which was issued, provided that the defendant should appear and obtain leave to appear and defend within seven days of the service of summons. It is obvious that the defendant had at

this stage of the matter no knowledge of the order of the Court providing for ten days and not for seven days. Anyway the defendant did not appear within the seven days or within the ten days of service, but the plaintiff relying upon the form of summons moved for and obtained judgment on November 12, 1924, that is to say, less than ten days, but more than seven days after the service of summons. Later on January 5, 1925, the defendant appeared with a petition and affidavit, and moved that the decree entered on November 12 be set aside, the ground for this motion being that in his view the. judgment had been entered prematurely, before the expiration of ten days of the service of summons as provided in the original order of Court. The District Judge, however, refused this motion, and appeared to say that his original minute of October 25 was a mistake, he having intended in fact to mention seven days as the period within which the defendant was to appear. I say so, because I find the District Judge when the discussion took place altered his record from ten days to seven days, but after all the Code does not lay down any period in respect of summary procedure on liquid claims for the defendant to appear. It is entirely left to the Court in the summons itself, to provide for the time within which the defendant was to appear, the governing fact in this procedure being the form of special summons and not the mere minute of the Court's action in the first instance. The defendant had the summons, and he was not misled by any mistake or other error which appeared in the original record. Mr. Cooray for the defendant has cited to us as authority the case of Anlaby v. Praetorious. [1 20 Q. B. D. 754.] That case related to the analagous procedure in the English rules in the case of endorsed summons, but theirs is distinct from the Ceylon procedure. The rule of Court itself provi

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