1. These appeals, Appeal No. 349 of 1924 and Appeal No. 47 of 1928, were originally heard by myself and Curgenven, J., but owing to the latter's illness before he left the Court last year we were unable to deliver our judgments. In the meantime an informal application was made to me which is now put in the form of a petition that we should ask Mr. Brook Elliot, a member of the Ceylon Bar, to either appear as an amicus curiae or as a witness to help us in the elucidation of the Ceylon Procedure in this case as contained in the Ceylon Procedure Code. We have given very careful consideration to this request and we are indebted to Mr. Brook Elliot for so readily placing his services and knowledge at our disposal. But we consider that the only way in which Mr. Brook Elliot could be of any real assistance would be if he were asked his opinion as to the very question that we have to decide. An expert in foreign law is called, as I understand it, to state what the law of a foreign country on a particular point is; an Advocate of the Scottish Bar is often called as a witness in the English Courts to explain the law of Scotland on any particular point that arises. But in this case we have the law laid down for us in a particularly elaborate manner in the Ceylon Civil Procedure Code and it appears to me that it is our duty to interpret that Code as best as we can and that we are not entitled rely rely on any outside opinion, however eminent, as to the interpretation of that Code.
2. The plaintiff brought O.S. No. 116 of 1924 in the Court of the Subordinate Judge of Sivaganga. On the 16th December, 1924, an ex parte decree was passed in the suit on a foreign judgment of the District Court of Colombo against defendants 1 and 13 in the suit. On the 13th March, 1926, 13th defendant applied to set aside the ex parted decree and succeeded. The 2nd defendant is now the contesting defendant before us. The learned Judge on this application held that the 2nd defendant only became aware of the decree on the 16th February, 1926 and that his application was therefore within time. We were at first inclined to go into the facts to see if the learned Judge's order could be sustained on this point, but in this case the most important question that arises is as to whether this is a decision on the merits. On the 30th May, 1917, the suit was filed. We have the Journal under Section 105, Ceylon Civil Procedure Code printed. It is contended that because an affidavit is apparently put in, the decision is one on the merits although the defendant was ex parte. The suit was against 14 defendants of whom only the 1st and 13th defendants were ex parte. On the 7th July, 1921, Mr. Kondayya moved for an ex parte trial as against the 1st and 13th defendants. This was allowed and the trial fixed to the 15th July. On the 19th September, 1921 Mr. Kondayya filed an affidavit and moved that decree nisi be entered. Decree nisi was issued on the 11th November, 1921. The affidavit was filed on the 15th September, 1921 and sets out the fact that certain promissory notes and a cheque were dishonoured and that the defendants are jointly and severally liable in the sum of Rs. 9,500 and odd. The Journal states that on the 19th September, the day fixed for the hearing, the plaintiff appeared and that the 1st defendant and the 13th defendant did not appear though they were duly served as by the affidavit of the process-server appears. Reference must be shortly made to the provisions of the Ceylon Procedure Code. The chapter relating to default of appearance is Chap. XII. Section 85 says: 'If the defendant fails to appear on the day fixed for his appearance and answer, or if he fails to appear on the day fixed, for the subsequent filing of his answer, or for the filing of the replication, or on the day fixed for the hearing of the action, and if the Court is satisfied by affidavit of the process-server stating the facts and circumstances of the service or otherwise, that the defendant has been duly served with summons, or has received due notice of the day fixed for subsequent filing of answer, or of replication, or of the day fixed for the hearing of the action, as the case may be, or if the defendant shall fail to file his answer on the day fixed therefor, and if on the occasion of such default of the defendant the plaintiff appears, then the Court shall proceed to hear the case ex parte and to pass a decree nisi in favour of plaintiff in the Form No. 22 in the second schedule hereto or to the like effect, and shall thereupon issue to the defendant a notice of such decree. Such notice shall be served personally unless the Court, for sufficient reasons to be assigned by it, direct some other mode of service-'
3. Reference may also be made to the words of Section 87:
No appeal shall lie against any decree nisi or absolute for default.
4. Section 90 says:
In the case of an action where there are more defendants than one, the Court shall not be obliged to pass a decree for default against a defendant for failing to appear at a stage of the action, provided that one defendant at least appears at that stage against whom the action must proceed.
5. It is alleged that the affidavit printed at page 3 of the appellant's documents was used at the hearing ex parte and that that constitutes a decree on the merits. We have no judgment in the case and the only affidavit referred to in the order quoted above is that of the process-server. Under Section 85 it would seem that the Court has no option but to give a decree for the plaintiff, the defaulting defendant being left to his remedy of moving to set aside the decree nisi if he can. Chapter XII makes no reference to affidavit evidence which is only by Section 179 to be allowed by the Court for sufficient reason. The affidavit relied on does not appear in the Journal and it is not explained under what provision of law it has been used. It may be that it is the practice of the Colombo Courts to use affidavits of this kind before ordering the issue of the decree nisi, but in the absence of any evidence on the point it seems to me that the affidavit in question cannot be relied upon to make this a decree on the merits. There is no judgment whatever.
6. Another possible explanation is that this suit, though begun as a regular suit, and we know that all the defendants but two originally appeared and filed answers, was, after the dismissal of the suit against them, converted into a summary suit and it will be remembered that in summary suits an affidavit is required.
7. Another question raised in this appeal has been already referred to, vis,, whether these defendants had notice of this particular decree. The second defendant states that he was not served with any summons and was only aware of the decree passed against him on the 16th February, 1926. This becomes important in considering whether he was within time in making his application to set aside the ex parte decree. He further says he was employed in Colombo for the last two years and came to Tondi, the village in question, on the 28th of January, 1926. The agent of the plaintiff on the other hand says that this defendant came to the village of Tondi a few days prior to 28th January, 1926. The Court amins came to Tondi on the eve of his marriage the defendant remaining in concealment. A resident of Tondi, Madar Shaik Ali, says that the marriage of this defendant was celebrated secretly because even at the end of January he was aware of the warrants out for his arrest. There is a conflict of evidence about this matter and it is evident that the amins found themselves in an hostile atmosphere in this village and wired to the Subordinate Judge to know what they were to do as the defendant was absconding inside the house. They asked for police bandobust from Tiruvaclani, as the outpost of Tondi did not seem to be available or willing to help them. It is of course the law that the defendant must know exactly what decree, and for what amount, is being executed against him and while it is quite likely that he knew that the amins were in the village to execute this particular decree it is possible that, as he was a man in involved circumstances, he was not sure what particluar decree it was that was sought to be executed. This question really becomes of no importance in the view that I have taken that this decree is not one on the merits.
8. This is admittedly a decree for default and not a decree on the merits, c.f., Ceylon Civil Procedure Code, Sections 703 and 708. Therefore it may be argued with reason that an affidavit is not a distinguishing mark of a regular hearing on the merits and that exactly the same materials are placed before the Court in a case of this kind as in the summary procedure. There is also the fact that there is no judgment but merely a decree in this matter which supports the view that it is not a decree on the merits. In this view I am of opinion that this appeal fails and must be dismissed with costs.
9. While this judgment was under consideration we have been referred to two reported Ceylon decisions. The first is Vol. 6 of Notes of Cases by Mr. K. Balasingam and is at page 17 of that volume. The learned Judges there held that at an ex parte hearing it was necessary for plaintiff to give such evidence of the material averments as would enable the Court to pass a decree. The Judges held there had been no hearing at all as all the plaintiff said was 'I have actually sustained the damages claimed and nearly half the claim was for pain of mind and body.' It was also doubtful if such damages could be recovered. The other case is reported in 3 N.L.R. (Ceylon), page 34 and was a case of 1897. It holds that the plaintiff must make out a prima facie case and that the Judge is not bound to pass a decree till he is satisfied. He may grant an adjournment to enable plaintiff to repair the defects in his evidence and which may seem a strange proceeding to us here. The Judges refer to the old practice of allowing the defaulter defendant to appear and examine plaintiff in order to make the Court dissatisfied with the plaintiff's case. This is no longer allowed but the Court must still be satisfied that plaintiff has a case. This is reasonable. Suppose A sued B for the price of a coat and claimed Rs. 10,000. The case is ex parte. It may well be that the Court would not be satisfied without proof of the truth of the plaintiff's claim, i.e., that the coat is worth so much. I am not satisfied that this would make it a decree on the merits. The Ceylon case cited seems peculiar as there seems to have been a judgment. We have none here and in my opinion this case has no bearing on the present.
This appeal is against the decision of the Lower Court dismissing as against the 2nd defendant the plaintiff's suit, and the plaintiff appeals. The suit is based on a foreign judgment, namely, the decree in O.S. No. 47816 of 1917 on the file of the District Court, Colombo. It was a decree based on certain promissory notes and hundis. The plaintiff has sued upon this decree in the Court of the Subordinate Judge of Sivaganga to recover the sum of Rs. 15,000 now said to be due under it.
10. The first and, to my mind, the most important contention is whether that foreign judgment satisfies the requirements of Section 13(b) of the Civil Procedure Code; that is, is it a judgment given on the merits of the case? The Subordinate Judge has held that it was not and on full consideration I agree with him.
11. The Journal, which is the diary in the suit O.S. No. 47816 of 1917 maintained in the District Court, Colombo, is exhibited and discloses the following facts. The present respondent was one of the several defendants there, he being No. 13. All the defendants to the suit were served and several appeared on the 12th August, 1918, the date fixed for the trial, but this defendant did not. The District Court proceeded to try the case against those served, reserving the right to proceed against those absent, a procedure permitted by the Ceylon Civil Procedure Code. The trial against those present was held up till a connected case was disposed of in November, 1919 and was finally dismissed on the 27th May, 1921, owing to the plaintiff having taken no steps. On the 7th July, 1921, the plaintiff appeared to ask for the case to be proceeded ex parle against those defendants who did not appear including the present respondent. After two adjournments, the case was taken up on the 19th September, 1921, and the entry in the Journal (the meaning and implication of which we have to consider) is
Mr. C.T. Konclayya (that is, the plaintiff's proctor or vakil) filed affidavit and moves that decree nisi be entered in terms of the prayer of the plaint against the 1st and 13th defendants and the Court entered decree nisi, and on the 11th November, 1921, notice of the decree nisi having been affixed to the defendant's residence and no appearance made, a decree absolute was passed. It is on that decree absolute that the present suit is based.
12. The question is whether the entry of the 19th September, 1921, imports that the case was heard and judgment given on the merits. The procedure followed is, it is conceded, that laid down for the trial of regular suits by Chapter XII of the Ceylon Civil Procedure Code. Section 85 is the section particularly applicable. On the non-appearance of the defendant, the Court shall, if the plaintiff appears, 'proceed to hear the case ex parte and pass a decree nisi.' Does the phrase 'shall proceed to hear the case ex parte' necessarily mean that the case was decided on the merits? I am unable to hold so. Hearing a case is merely attending to a case, taking it up for further proceedings. Dates are fixed for the 'hearing of an action' after the pleadings have been put in. See Sections 84 and 85. 'Hearing' appears to me nothing more than taking the case up for trial. Even a decree nisi cannot be passed until the case is taken up for hearing and heard. That it does not necessarily imply the taking of evidence is indicated by the mandatory character of the section--'the Court shall pass a decree nisi.' That the passing of a decree for default is mandatory is clear from Section 90,. which enacts that if all the defendants in a case do not fail to appear but some do appear, then the decree for default is not immediately obligatory on the Court. The present case is obviously governed by Section 90. The decree for default against those defendants who had not appeared was postponed until the trial of the case against those defendants who had appeared, was closed. The reasonable interpretation of Section 85 is that the passing of a decree nisi is not a decision on the merits of the case but is a penalty for default of appearance.
13. It is argued that the fact that the plaintiff's proctor is said to have filed an affidavit, which is said to be the affidavit printed on page 3 of the documents before us and appears to be a reduplication of the plaint, implies that the Court called for evidence and accepted the affidavit as evidence on which to base its decree. We are asked to infer from the facts that the affidavit was presented, that the Court called for it and used it as evidence, but the provisions of the Ceylon Code lend no support to this proposition. The general section relating to proof by affidavit is Section 179, which says that the Court may, for sufficient reasons, order that any particular fact be proved by affidavit. Section 437 clearly implies that, except in an action of summary procedure, affidavits which are to be evidence in a case must be called for by the Court on specific order. We are not shown anything here to indicate that the Court did so order evidence to be given by affidavit. There is nothing to show that the Court called for this affidavit or used it as evidence. There is in fact, and it is a strong point against the plaintiff, no judgment or statement of reasons for the decree, nothing to show that the Court directed any attention to the merits of the case. When the Court has taken evidence and decides on evidence, it must write a judgment. See Sections 184 and 187.
14. There are other indications that a decree nisi passed under Section 85 and a decree absolute which follows under Section 86 are not decrees passed on the merits. For example, Sections 86 and 87 speak of each of these decrees as decrees for default. Presumably this is of a deliberate purpose. No appeal against either is allowed (see Section 87) and if the decision was on the merits, one would naturally expect an appeal to be allowed. Again, Section 87 provides for these decrees being set aside by motion, but what the Court has then to consider is not the merits of the controversy in the suit but the merits and demerits of the defendant's failure to appear. So in the present case, the decree nisi was evidently passed not on the affidavit but on the defendant's failure to appear. It is clear that the procedure in Chapter XII does not anywhere contemplate a decision upon the merits of the matters in issue in the suit. The form of the decree nisi No. 22 affords no hint that the merits of the matters in issue in the suit have been considered. It is a decree purely because of the default of appearance.
15. The plaintiff has based an argument on the wording of the summons issued to the defendant in a regular suit procedure as contrasted with that issued in an action of summary procedure on a liquid claim. These are Forms Nos. 16 and 19, respectively, found at the end of the Ceylon Civil Procedure Code. Form No. 16 says that in default of appearance 'the action will be proceeded with and heard and determined in your absence.' Form No. 19 says that in default of appearance, plaintiff will be entitled to obtain a decree. But these forms must be read in conformity with the Code itself and there is no reason why we should read more into the words 'hear and determine' than give the case a hearing and bring it to an end.
16. I am satisfied for the above reasons that there was in the District Court, Colombo, no decision on the merits. The point is not without authority in this Court. A very similar case is reported in Arunachalam Chettiar v. Mahomed Salihu Marak-kayar (1927) 26 L.W. 803 where Kumaraswami Sastriar and Curgenven, JJ., held that the decision was not on the merits, following the Full Bench judgment of this Court in Mahomed Kassim and Co. v. Seeni Pakir Bin Ahmed (1927) 26 L.W. 803 and the Privy Council ruling in Keymer v. Visvanatham Reddi (1927) 26 L.W. 803.
17. As the suit fails on this point, it is unnecessary to go into the other points raised by the plaintiff, namely, whether he is entitled to plead here that the Lower Court was in error in setting-aside the ex parte decree which he had obtained against the respondent and whether the respondent's application to set aside that ex parte decree was out of time.
18. I may just briefly note here that an application was made to us by the appellant to examine, for the purpose of elucidating the procedure in the District Court of Colombo, a learned Barrister of this Court who has practised there, but I really do not see how an examination of this gentleman would assist us to decide the present case. Even if he were able to say that in certain cases the District Court did adopt a procedure which involves a decision on the merits, it is incredible that he will be able to say that it was the inveterate habit of that Court to decide all such cases on the merits and that there could not be any exception to that practice, that in fact the District Court of Colombo and every District Judge in it invariably, as a matter of uniform rule, recorded decisions on the merits in all cases under Section 85. If the appellant had wished to produce before us information which would enable us to decide in a clearer fashion what the exact procedure in the District Court of Colombo was and what the meaning of the particular Sections of the Civil Procedure Code cited before us is, as laid down by the Supreme Court of Ceylon, it would not have been difficult for him to produce before us reported rulings of the Supreme Court on the points at issue in the case, but no attempt has been made to do this when the case was argued at the bar.
19. Since that argument, appellant has by letter called our attention to two reported cases of the Supreme Court of Colombo. It is not necessary for us to post the case for further argument on these, as they do not seem to me to arise from his point. From the case reported in Mr. Balasingham's Notes of Cases, Vol. 6, page 17, it appears that there must be an ex parte hearing of the plaintiff's case before a decree nisi can be passed. It was held that there had been no such hearing and the decree nisi was therefore vacated. From the case reported in 3 N.L.R. (Ceylon) 34 it appears that though a defendant appears at the ex parte hearing, he cannot plead because he is in default. In both cases, it is clear that the hearing is not a trial on the merits of the matters in controversy. As is stated clearly in the latter case, the defendant's objections to plaintiff's case 'could not be tried until pleaded by the defendant who was wilfully in default.' The decision therefore remains a decision for default of appearance, and not on the merits, and it is clear, as I have pointed out, from Section 87, that defendant may, at any later stage, for good reasons shown, have the decree for default set aside and the case tried on the merits. In other words, the decree nisi and the decree absolute under Sections 85 and 86 are not decisions on the merits. I would, therefore, decline to interfere and dismiss the appeal with costs.