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PUNCHI BANDA v. APPUHAMY et al.
C. B., Kegalla, 1,336.
Civil Procedure Code, ee. 755 and 765—Ground for leave to appeal not-withstanding lapse of time—Proctor and client—Proctor refusingto sign petition of appeal.
The delay occasioned by the refusal of one’s proctor to sign hispetition of appeal is no ground for leave to appeal notwithstandinglapse of time, inasmuch as a party to an action can lodge a petitionof appeal in person, in terms of section 755 of the Civil ProcedureCode.
the 11th June, 1895, the second defendant presented a^ petition of appeal against the judgment entered against himin this case, which was dated the 30th May, 1895. The Commis-sioner rejected the petition on the ground of its being presenteda day too late, whereupon the second defendant made the presentapplication to the Supreme Court for leave to appeal notwithstand-ing lapse of time. He stated, as his reason for the delay, that hisproctor refused to draw or sign the petition of appeal, and toldhim that he had withdrawn from the case.
Alwis appeared in support of this application.
10th July, 1895. Bonser, C.J.—
Even if I am disposed to help this would-be appellant, the lawdoes not allow me to do so.
The application is one to be allowed to appeal from a judg-ment of the Court of Bequests of Kegalla, notwithstanding lapse •of time. Section 765 of the Civil Procedure Code provides that,although the time for appealing may have elapsed, yet it shall becompetent to the Supreme Court to admit a petition of appeal,provided the Supreme Court is, among other things, satisfied thatthe petitioner was prevented by causes not within his controlfrom complying with the provisions of the Code respecting appeals.
Therefore it is incumbent on a party applying for this indulgenceto satisfy this Court that he could not have lodged his appeal int'me owing to some cause not within his control. Now, what doesthe petitioner state on this point in his affidavit ?
He says the reason why his petition was not lodged in time wasbecause his proctor declined to sign it. But it is not necessarythat a petition of appeal should be signed by a proctor. Section755 provides that any party who wishes to appeal may go to the
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chief clerk of the Court of Requests and state orally his reasonsof appeal, and the chief clerk is bound to take down in writingsuch reasons in the form of a petition of appeal, which, whensigned by the party and attested by the chief clerk, becomes aperfectly good petition of appeal. It is not stated or suggestedthat anything occurred to prevent this petitioner from taking thiscourse. Therefore I am obliged by law to hold that I am notsatisfied that he has been prevented, in the words of section 765of the Code, “ by causes not within his control ” from lodging hispetition in time.
PUNCHI BANDA v. APPUHAMY et al