048-NLR-NLR-V-03-SILVA-v.-ARNOLIS.pdf
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1805.-June 22.
SILVA v. ARNOLIS.C. R„ Galle, 3,265.
Civil Procedure Code, s. 84—Kind of decree to be entered on default ofplaintiff's appearance—Appealable order—Courts Ordinance, s. 80.The proper order that should be entered, in the event of plaintiff’sabssnce cn day of trial, is not one for the dismissal-of his action,but a decree mst only, which should be made absolute if the plain-tiff within a fortnight does not show good cause for his non-appear-ance.
An order made by a Commissioner of Bequests setting aside anex parte decree dismissing a plaintiff’s action is not an appealableorder, inasmuch as it is not a final judgment or order having theeffect of a final judgment.
T
HE facts material to this report appear in the followingjudgment.
Canakaratna, for appellant.
22nd July, 1895. Bonser, C.J.—
This is an appeal from an order by Mr. Moor, who was actingas Commissioner of Bequests at Galle, whereby he set aside anex parte decree which he had made dismissing the plaintiff’s action.
The plaintiff did not appear at the trial, and the Commissionerdismissed the action with costs.
In this, I think, he was wrong, for section 84 of the Civil ProcedureCode provides that in such a case the dismissal was not to beabsolute, but that a decree nisi dismissing the plaintiff’s actionis to be made, which, unless the plaintiff within a fortnight shouldshow good cause for his non-appearance, shopld become absolute.'
But although the decree was on a wrong form, the Commis-sioner treated it as if it had been made in proper form.
Within the fourteen days the plaintiff applied to be allowedto prosecute his action and to have the decree set aside.
His application was supported by evidence that his absencewas caused by illness. Upon that the Commissioner made ordersetting aside the decree and allowing the plaintiff to prosecutethe action.
Against that order the defendant appeals; but I think thatthe order was quite correct.
There is also a further objection, and that is that the order isnot an appealable one. It is not every order made in the courseof an action in the Court of Bequests that is appealable. Section
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80 of the Courts Ordinance gives the right of appeal from Courtsof Bequests, and limits that right to final judgments or ordershaving the effect of final judgments.
The order in qnestion was not a final judgment, nor had it theeffect of a final judgment. Therefore no appeal lies from it. Theappeal will be dismissed.
1890.July 22.
Bonser, C.J-
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