‘Ex Parte Orders’ Must Be Challenged in the Same Court

The Supreme Court has held that “in order to vacate an ex parte order, a person must apply to the Court which made the said order” and stressed that “revision should not lead to abuse of process.”

The case involved a husband and wife who had originally owned a property, later transferred to another couple by deed. Alongside the deed, there was an oral arrangement that the original owners could repurchase the property within two years by paying a fixed sum with interest. They defaulted, and the new owners sought a declaration of title and ejectment in the District Court. A settlement was entered by consent, giving the couple six months to pay. They failed to do so, and a writ of ejectment was executed. The new owners regained possession and later even sold the property.

Nearly two years later, while living abroad, the husband filed a revision application in the High Court claiming his wife, though holding power of attorney to deal with the property, lacked authority to appear in court on his behalf. The High Court accepted this position, set aside the District Court’s orders, and even directed that the couple be restored to possession.

The Supreme Court disagreed. It noted that “There seems to be a delay of almost 2 years on the part of the 1st defendant in filing the revision application in the High Court. Although the 1st defendant seems to have explained the reasons for delay by stating that he was residing in Quatar for employment at the time, the delay nevertheless subsists. As rightly submitted by the learned counsel for the Plaintiffs, if the 1st Defendant made an application in the same District Court to purge default, the plaintiffs could have cross examined the 1st defendant on the delay. Further, the plaintiffs could have had the opportunity to cross examine the 1st defendant on any possible collusion on the part of the 1st and the 2nd defendants who are husband and wife. There is no evidence of any complaint by the 1st defendant against the 2nd defendant who is his wife for filing action in the District Court on his behalf using a wrong power of attorney.”

The Court also highlighted the absence of any allegation of fraud. The husband admitted giving a power of attorney to his wife but said it was limited to transfers, not litigation. Yet, “the 1st Defendant had never alleged fraud in respect of his wife and no explanation has been made on the absence of an allegation of fraud. Further, in no instance has the 1st defendant or the 2nd defendant alleged fraud in respect of the 1st and 2nd plaintiffs as the defendants admit that the property has been transferred.”

Concluding that the High Court had erred, the Supreme Court set aside its ruling, affirmed the District Court’s orders, and allowed the appeal

“…it is now settled law that in order to vacate an ex parte order, a person must apply to the Court which made the said order.  When considering the facts of this case, it is also an instance where the 1st Defendant who was allegedly unaware of the judgment entered in the District Court in Case No. L/121/2013 wishes to vacate the said judgment as proxy has been signed by way of a power of attorney which did not provide the power to litigate. As stated in the above case law authorities, the clear and efficacious remedy available for the 1st Defendant in the instant case was to make the application before the very District Court for vacation of the ex parte order……This Court observes that revision should not lead to abuse of process…” – Justice K. Priyantha Fernando

Case No: SC Appeal No. 51/2021 [Decided on 21.05.2025]

Before: P. Padman Surasena, J Achala Wengappuli, J K. Priyantha Fernando, J