133-NLR-NLR-V-23-ALIA-MARIKKAR-v.-BAWA-et-al.pdf
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ALIA MABIKKAK c. BAWA et ah97—2). a QaUek 18,0S3.
1921
Objection to be stated in Court.
H. J. C. Pereira, K.O. (with him B. G. P. JoyatUeke), tot appellant.
Soerisz, for the respondents.
Ootober 21,1921. Bbbsbam G. J.—
La my opinion this appeal must be allowed. The learned Judge has thoughtit right to rescind his own order on the ground that it was ex parte. But itappears from a careful examination of the journal entries that the order wasnot made ex parte. With regard to the finrb defendant, there is no questionthat notice was duly served. With regard to the second, it is admitted thatnotice was served .upon the second defendant's proctor. This is good serviceunder section 29 of the Code, and this is not disputed.' But it appears that theproctor had an objection to the validity of the notice, on the ground that itwas not issued “ forthwith ” as required by section 756 of the Civil ProcedureCode. He stated this objection to the process server. But, if he wished torely upon the objection, he should have stated it in Court. It is not for theperson who received the notice to decide whether the service is good. It isfor the Court, before whom is served to appear, to decide the question.There being good service on both defendants, the order made by the DistrictJudge was not ex parte. The present order, therefore, was made by an over-sight. It may be that when the appeal comes on for hearing, the questionwOl arise with regard to the word “ forthwith.” But that question is notbefore us in this interlocutory appeal.
I would allow the appeal, with costs.
De Sakpayo J.—I agree.