Dharmadasa V. Piyadasa Perera

1961 Present: Gunasekara, J., and T. S. Fernando, J.

D. DHARMADASA, Appellant, and PIYADASA PERERA,
Respondent

S. C. 71 (Inty.) of 1959-D. C. Colombo 742/Z

    Res judicata-Decree for default-Can such a decree operate as res judicata ?- Meaning of word "decree"-Civil Procedure Code, ss. 84, 85, 86, 188, 192, 206, 207.

    A decree absolute for default that has been passed against a defendant by a District Court is one to which section 207 of the Civil Procedure Code applies and can, therefore, operate as res judicata in a subsequent action between the same parties in respect of the same subject-matter.

    Herathv. The Attorney-General (1958) 60 N. L. R. 193, discussed.

    APPEAL from an order of the District Court, Colombo.

    H. W. Jayewardene, Q. C., with L. C. Seneviratne, for the defendant-appellant.

    S. C. E. Rodrigo, for the plaintiff-respondent.

Cur. adv. wit.

August 4, 1961. GUNASEKARA, J.-

    The question that has been argue in this appeal is whether a decree absolute for default that has been passed against a defendant by a district court is one to which section 207 of the Civil Procedure Code applies.

     The subject of the present action is the piece of land depicted as Lot 1 in the plan X. In an earlier action between the same parties, case No. 4894,L of the District Court of Colombo, instituted on 27th March, 1947, the appellant sued the respondent for a declaration of title to the same piece of land, for ejection of the respondent from it and for other consequential relief. The property had formed part of the estate of the respondent's father Gabriel Perera, who had lied leaving a last will by which he appointed his widow Egodage Catheriae Perera his executrix and which was in lue course admittea to probate- The appellant claimed in case No. 4894, L that the land had been sold by Catherine Perera as executrix in cider to pay the debts of the estate and that the appellant had purchased it from her upon two deeds, No. 67 of 24th May, 1946 and No. 88 of 29th November 1946, attested by Mr. Q. M. E. Jayamanne, notary public, and she alleged that the respondent was unlawfully in possession of it. The respondent in his answer denied the appellant's claim. He also averred that

    " the Last Will referred to in the plaint contained the provision : ' I give, devise, and bequeath all my immovable property to my wife Egodage Catherine Perera subject to the condition that she shall not be at liberty to sell mortgage or gift or otherwise alienate the said property or any portion thereof, but she shall have the right only to bold and possess and enjoy the profits and income therefrom during her lifetime and on her death the same shall devolve on Magalage Piyadasa Perera ' (the respondent)."

He failed to appear on the day fixed for the trial, which was the 24th of February 1948. The appellant appeared on that date, and after an exparte trial the Court passed a decree nisi in terms of section 85 of the Civil Procedure Code, declaring the appellant entitled to the land and ordering that the respondent be ejected and the appellant placed in possession of it. On 26th May 1948 this decree was made absolute in terms of section 86 of the Code, after the respondent had unsuccessfully attempted to purge his default, and the fiscal placed the appellant in possession of the land on 22nd September 1948. On 30th October, 1957 the respondent instituted the present action, claiming that a cause of action had ; accrued to him to sue the appellant

" to have it declared that the said land is bound by fideicommissum in favour of the plaintiff and to have the deed No. 67 of 24th May, 1946 attested by Q. M. R. Jayamanne, Notary public, declared null and void and for possession of the said land and premises, "

and praying for these reliefs. The appellant in her answer denied the respondent's claim find also pleaded that the decree in case No. 48

Click Here to Read the rest of this document