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Present: Lascelles C.J. and Wood Benton and Pereira J.J.
DIAS et ai. v. ABNOLIS et al.
409—C. R. Balapitiya, 8,604.
Appeal—Supreme Court has power to order.
Under section 770 of the Civil Procedure Code it is competent tothe Supreme Court to order that- any party to an action who hasnot been made a party' to the appeal, but who is interested in theresult of the appeal, be made a respondent to the appeal.
Buultjens ®. Vparts et al.1 commented upon.'
| HIS case was referred to a Full Bench, in view of the decision ofBuultjens v. ZJparis et al.,1 for the consideration of the question
whether the Supreme Court had .the power, when the appeal wasbefore it for argument, to order the third defendant to be made arespondent to the appeal.
de Zoysa, for the appellant.—This Court has the power undersection 770 of the Civil Procedure Code to order that any personwho was a party to the action in the lower Court, but who has notbeen made a party to the appeal, foe made a respondent if the Courtis satisfied that he is interested in the result of the appeal. Buultjensv. Uparis et al., 1 if it i& a decision in a contrary sense, is opposed tothe very words of section 770 of the Civil Procedure Code.
E. W. Jayewardene, for the respondent, relied oh Buultjens v.Uparis et al.1
February 4, 1913. Lascelles C.J.—
The only question which we have to decide here is whether theJudge before whom the appeal came had power under section 770of the Civil Procedure Code to direct the third defendant to bemade respondent to the appeal. There can, in my opinion, be noquestion but thatthispower is expressly and plainlyconferred
on the Judge bytheabove-named section.The onlydifficulty
which has arisen in the case is in connection with the decision in thecase of Buultjens v. Uparis et al.1 Although in that case the Courtdid not exercise its powers under the section, there is, in my opinion,^ nothing in that judgment which can be construed to question thepower of a Judgetodirect a respondent tobe addedin terms
of section 770 oftheCivil Procedure Code.Whetheror not a
>( 1910) 2 Cur. L. R. 195.
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respondent ought to be added in any particular case is a question forthe decision of the Judge who hears the appeal. The proper course,in my opinion, is to remit the case to the Judge who heard the cage,in order that he may exercise his discretion as to whether the thirddefendant should or should not be added as a respondent to theappeal. The costs of the reference ought to be costs in the cause.
Wood Renton J.—I agree.
Phreiba J.—I agree.
DIAS et al v. ARNOLIS et al