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ANTHONISZ v. DEBOLIS.
D. G., Tangalla, 575.
Appeal petition—Duty of secretary of court at to drawing such petition—CioilProcedure Code, t. 755—“ Grounds of appeal taken down in writingr.”
The power given by section 755 of the Civil Procedure Code to theSecretary of the District Court to concisely take down in writing, fromthe month of the party desiring to appeal, the grounds of the appeal doesnot entitle the secretary to draw the petition of appeal.
A petition so drawn was rejected and the appeal dismissed, withliberty given to the defendant, in the circumstances of the case, tomove the Supreme Court in revision.
TTR plaintiff claimed Bs. 318 for work and labour done aacommissioner appointed by the Court in two partition cases
between the parties hereto who had been decreed to pay the costsof the suit pro raid. The defendant filed answer in personcontesting the right of the plaintiff to sue him in this suit, insteadof recovering the fees due by summarily proceeding in the partitioncases. Defendant also pleaded that he had paid his share of thefees to the plaintiff.
On the trial day the District Judge recorded as follows:—“ There is no evidence to be taken. There appears to be sufficientmoney already deposited in the two partition cases by the plaintiffas his share. It seems to me that the surveyor has the first claimon the amount deposited.” The District Judge then enteredjudgment for the full amount of the plaintiff’s claim, and orderedthe defendant to pay the costs of this case.
The defendant filed his petition of appeal signed by himself,and at the foot of the petition appeared the words “ Drawn byJ. B. Moldrech, Secretary.” .
Schneider, for the appellant.
Bawa, for respondent.
27th February, 1903. Layabd, C.J.—
This petition of appeal purports to be drawn by J. R. Moldrech,
“ Secretary.” I presume that means the Secretary of the DistrictCourt of Tangalla. Mr. Moldrech has no right to draw a petitionof appeal for any suitor in the District Court of Tangalla. It istrue that section 755 of the Civil Procedure Code allows any partydesirous to appeal to state viva voce his wish to appeal, togetherwith the particular grounds of such appeal, and the secretary is
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1803.authorized by that section to concisely take down in writing from
February 27. the mouth of the party the grounds given by the party in theX.iyabd,O.J. form of a petition of appeal. In such case we should be boundto accept the petition of appeal.
The Secretary of the Court in this case states that he drew upthe petition of appeal. On reading through the written paragraphsof the petition of appeal it is perfectly clear that the secretaryhas done more than record the grounds which appellant wishedto urge before this Court.
The defendant’s appeal must be dismissed. But as he mayhave been led into this error through the Secretary of the DistrictCourt, we reserve to the appellant the right. by counsel to movefor a revision of the order of the District Court should hiscounsel think that that order is one that ought to be revisedby this Court.
I am of the same opinion. I think that it was not the intentionof the Legislature to authorize the Secretary of a District Courtto draw petitions of appeal. The view which the Court hastaken in this case does not conflict with the case VengadasalemChetty v. Rawter reported in 3 C. L. R. 39, in which Lawrieand Withers, J.J. (Browne, J., dissenting) held that the provisionsof the Code had been complied with in the spirit. There theappellants appeared before the secretary and submitted to himthe grounds of their appeal in writing (being a draft of a petitionof appeal settled by Mr. Advocate Wendt), which were embodiedin the form of a petition of appeal and signed by the appellantsBefore the Secretary. Possibly, that decision is not quite inkeeping with the letter of section 755 of the Civil Procedure Code,but the majority of the court thought jt was in keeping with thespirit of it, and I do not think it is inconsistent with the view wehave taken in this case.
ANTHONISZ v. DEROLIS