BASNAYAKE, C.J.—Balamkikai v. Thamotherampillai
1960Present: Basnayake, C.J. and H. N. G. Fernando, J.BALAMKIKAI, Appellant, and THAMOTHER,AMPILLAI et al.t –
R.esp ond en ts
S.C. 300—D. G. Jaffna, 7733
.Appeal—Petition of appeal prepared by Secretary of Court—Form of attestation—Civil Procedwe Code, s. 755.
Where a petition of appeal is prepared by the secretary of a Court under theproviso to section 755 of the Civil Procedure Code, the attestation should recitethe fact that tho appellant stated viva voce his wish to appoal together with thegrounds of appeal, and that they wore taken down concisely in writing in theform of a petition of appeal by the secretary from the mouth of the party, andthe attestation containing those recitals should be signed and dated by thesecretary himself.
<£JLPPEALi from a judgment of the D.strict Court. Jaffna.
T. B. Dissanayake, for Defendant-Appellant.N. Kasirajah, for Purchaser-Respondent.
March 1, 1960. Basnayake, C.J.—
Learned counsel for the respondent takes a preliminary objection tothis appeal being entertained by us on the ground that the petition ofappeal lias not been drawn and signed by an advocate or proctor asrequired by section 755 of the Civil Procedure Code. That section-excluding the proviso to which reference will be made later reads :
*' All petitions of appeal shall be drawn and signed by some
advocate or proctor, or eise the same shall not be received. **
Counsel for the appellant quite correctly docs not seek to maintain-that the petition of appeal has been drawn in accordance with section755. A petition of appeal unless drawn and signed in the’ mannerprescribed in section 755 should not be received by the District Judge.In the instant case if the District Judge had observed the imperativeprohibition in the section this appeal would not have come up to thisCourt and the parties would have been saved all the expense of pre-paring briefs and retaining counsel to argue the appeal. There is afurther objection to this appeal and that is that the order appealed fromis one made of consent.
BASNAYAICE, C.J.—JBalamkika* v. Thamotheram.'pillai
Ah the party appellant seems to have intended, to proceed under the-proviso to section 755 we think it' is necessary to say a word about the-proviso to that section. It reads :
“ provided always that any party desirous to appeal may withinthe time limited for presenting a petition of appeal, and upon hisproducing the proper stamp required for a petition of appeal, beallowed to state viva voce his wish to appeal together with the parti-cular grounds of such appeal, and the same shall (so far as they arematerial) be concisely taken down in writing from the mouth of theparty by the secretary or chief clerk of the court in the form of apetition of appeal, when it shall be signed by such party and attestedby the secretary or chief clerk, and be received as the petition of appealof such party without the signature of any advocate or proctor. ”
The proviso requires the party appellant to state viva voce to the Courthis wish to appeal together with the particular grounds, and the secretaryis required to take down concisely in writing in the form of a petition ofappeal the statements made by the appellant so far as they are material.Thereafter the petition must be signed by the petitioner and attestedby the secretary. All that the appellant appears to have done is totake a typed petition of appeal to the secretary and sign it before him.That is not compliance with the proviso. Where a petition is preparedby the secretary under the proviso, the attestation should recite thefact that the appellant stated viva voce his wish to appeal together withthe grounds of appeal, and that they were taken down concisely inwriting in the form of a petition of appeal by the secretary from themouth of the party, and the attestation containing those recitals shouldbe signed and dated by the secretary himself.
In the instant case neither the petitioner nor the secretary has observedthe requirements of the section.
It is important to note that the Code requires the party appellant tostate viva voce to the Court his wish to appeal and the grounds of appeal.The appellant’s statement under section 755 must therefore be made tothe Judge when he is exercising his judicial functions qua a Court. ‘Therecord does not show that the appellant stated her wish to appeal togetherwith her grounds to the Court.
The appeal is therefore rejected. •
As this objection was not taken in the lower court there will be nocosts of the appeal.
H. N. G. Pebnakdo, J.—I agree.
BALAMKIKAI, Appellant, and THAMOTHERAMPILLAI et al..Respondents