Alima Natchiar v. Marikar.
1945Present,: Keoneman S.P.J. and Rose J.ATJMA NATCHIAR, Petitioner, and MARIKAR el al.,Respondents.
Application in revision, D. C. Kaivtara, 24,682.
Appeal—Order of abatement of petition of appeal on the ground that notices oftendering security had not been served on the respondents in person—Remedy is by appeal against such order—Civil Procedure Code, s. 756 (2).Where a petition of appeal was held to have abated on the groundthat the notices of tendering security in connection with the appealshould have been served on the respondents in person and not on theirProctors—
Held, that the remedy against the order of abatement was by way ofappeal and not by application in revision.
HE petitioner in this application sought to intervene in the casein the original Court but her application was dismissed. She
accordingly appealed and the notices of tendering security under section756 of the Civil Procedure Code were served on the Proctors representingthe several respondents to the appeal. The second respondent thereaftermoved to have the appeal abated under the provisions of section 756 (2)on the ground that the notices should have been served on the respondents
11887) 5 S. C. 279.
KErnSEMAU 8-P.J.—Alima Natchiar v. Marihar.
in person and not on their Proctors. The District Judge upheld theobjection and made order abating the appeal. The petitioner did notappeal from this order but moved the Supreme Court to revise the saidorder.
H. W. Jayewardene, for the second defendant-respondent, raised apreliminary' objection.—No application in revision should be entertainedsince the petitioner had a right of appeal from the order sought to berevised. Vide Courts Ordinance, section 73, Goonewardene v. Orr1. Thisis not an application for relief under section 756 (3) of the Code nor canrelief be granted under this provision for this type of non-compliance■with section 756—De Silva v. Seenathumma 2. The petitioner is herequestioning the correctness of the District Judge’s order, hence he mustappeal from that order—Zahira Umma v. Abeyaainghe ®. The order wasmade by the Judge when acting judicially and hence the dictum laiddown in Palaniappa Chetty v. Mercantile Bank4 has no application.That was an application under the Civil Appellate Rules.
E. D. Cosme, for the petitioner.—The District Judge’s order was clearlywrong. The question is covered by authority. Vide Perera v. Hendrick 8and De Silva v. Francindhamine e. Applications of this nature have beenentertained before—De SUva v. James 7; Siyadaris Appu v. AbeyanayeTca ®.Even though a right of appeal lies the Supreme Court can entertain anapplication in revision.
H. W. Jayewardene, in reply.—Though the cases cited show that theDistrict Judge’s order is wrong yet there seem to be sufficient grounds tosupport it. Vide the terms of section 756 which draws a distinctionbetween service of the notice of security and the service of the notice ofappeal. See also Forms 126 and 127.
An application in revision is entertained where an appeal also lies onlyin very exceptional circumstances—Atukorale v. Samynathan 9; Silva v.Silva10. The mere fact that the District Judge’s order is wrong is noground for departing from the general male. No special circumstanceshave been urged in this case as to why this application should bo enter-tained. The cases cited, namely, De Silva v. James and Siyadoris Appuv. Abeyanayalca [supra) deal with applications for relief under section756 (3) where the correctness of the District Judge’s order has beenaccepted. There is no such application before the Court now nor cansuch an application be made in a case of this nature. De Silva v.Seenathumma [supra) is in point.
J. M. Jayamanne, for the plaintiff, respondent.
Izadeen Ismail, for the fourth and fifth defendants, respondents.
November 29, 1945. KjEtrNEMAN S.P.J.—
We think that Mr Jayawardene for the second respondent is right inarguing that a right of appeal lay in this case to correct an error of law
* 39 N. L. R. 84.
8 43 N. L. R. 127.
8 1 A.C. R. 25.
1 2 A.C. R. 172.
* 41 N. L. R. 241.
« 41 N. L. R. 191.
9 C.L. W. 124.
13 C. L. W. 22.
» 41 N. L. R. 165.*» 44 N. L. R. 494.
The King v. H eras ha my.
committed by the District Judge. In the circumstances we should beslow to exercise our discretion to allow an application in revision in viewof the fact that no appeal has been taken in this case.
The application for revision is dismissed with costs.
Rose J.—I agree.