Austin De Mel V. Kodagoda

1945 Present: Keuneman and Rose JJ.

AUSTIN DE MEL, Appellant, and KODAGODA, respondent.

8 Inty.-D. C. Colombo, 14,802.

Decree nisi--Absence of plaintiff-The point of time at which a decree nisi is deemed to be " passed "-Application to set aside-Cannot be inquired into after the period of 14 days has elapsed-Civil Procedure Code, s. 84.

Under section 84 of the Civil Procedure Code the " passing " of the decree nisi, on the non-appearance of plaintiff, is not completed until the necessary form has been drawn up and approved and signed by the court. The starting-point of the period of fourteen days within which the decree nisi can be set aside is the date on which the decree nisi is " passed ", and not the date on which the court merely gives instructions to prepare a decree nisi to be passed thereafter.

Where the plaintiff came into court within the fourteen days and had, within that period, succeeded in giving notice to the defendant and fixing the inquiry for the setting aside of a decree nisi but was prevented from " showing good cause " within the period in consequence of a preliminary objection taken by the defendant, which in fact was wrongly allowed by the District Judge-

Held, that, once the period of fourteen days had elapsed, it was not open to the District Judge to take up the inquiry into " good cause " nor was it open to the Supreme Court to do so in appeal.

Per KEUNEMAN, J.-" I would urge upon the legislature the need of a speedy amendment of section 84 so that the unreasonable hardships imposed upon the plaintiff may be removed ".

APPEAL from an order of the District Judge of Colombo.

H. V. Perera, K.C. (with him D. W. Fernando), for the plaintiff, appellant.

N. Nadarajah, K.C. (with him W. Mutturajah), for the defendant, respondent.

Cur. adv. vult.

March 20, 1945. KEUNEMAN J.-

In this case, on November 26, 1943, trial was fixed for February 15, 1944. On the latter date the plaintiff and his proctor were absent and

the defendant was represented by counsel. The journal entry of that date reads: -

" 15.2.44. Case called
 

Adv Mr. Wickremanayake for deft.
Pltff and proctor absent.
Enter D. N. dismissing pltff's action with costs to be made absolute an 3.3.44.
M. A.. S."
 

The intials M. A. S. are the initials of the presiding judge Mr. Samarakoon, Thereafter the journal entries read: -

" 1.3.44. D/N entered.

3.3.44. Fourteen days having elapsed since the entering of the decree nisi dismissing pltff's action with costs, Proctor for Deft moves that the Court be pleased to make the Decree Nisi absolute.

A needles motion, the order being absolute automatically.

R. F. D."

R. F. D. are the initials of the judge then presiding, Mr. Dias. This judge has verified the fact that the decree nisi presented to him was signed on March 3, 1944.

On March 13, 1944, the plaintiff moved by affidavit showing cause for setting aside the decree nisi. This was fixed for inquiry on March 15, 1944, and on that date the District Judge upheld an objection that the application was out of time as fourteen days had elapsed since February 15, 1944. The District Judge thought it unnecessary to consider the merits of the application.

The plaintiff appeals from this order, and argues that the period of fourteen days did not begin to run until March 3, 1944, and that on the date of inquiry (March 15, 1944) the period of fourteen days had not elapsed. He contends that the District Judge did not " pass the decree nisi " within the meaning of section 84 of the Civil Procedure Code until March 3.

Under section 84 where the plaintiff fails to appear on the date of hearing and where the defendant is present or represented and does not admit the plaintiff's claim or consent to a postponement, " the court shall pass a decree nisi in the Form No. 21 in the First Schedule or to the like effect, dismissing the plaintiff's action, which said decree shall at the expiratio

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