16 JAY~F.TTT.KKK J.—Merpalagamaethige Cortina v. Mary Nona Silva.
1945Present: Soertsz A.C.J. and Jayetileke J.MAPALAGAMAETHIGE CARUNA, Petitioner, v. MARYNONA SILVA, Respondent.
In revision D. C. Kalutara, 23,406.
Appeal—Notice of security to Proctor—Wrongful abatement of petition ofappeal—Remedy by appeal against order—Civil Procedure Code, s. 756(2) and (3).
Where an appellant gave notice of security for respondent’s coststo the latter’s proctor and the Court -wrongly made an order of abate*meat of the petition of appeal, the remedy is by way of appeal and notby way of an application for relief under section 766 (3) of the CivilProcedure Code.
HIS was an application to revise an order of the District Judge ofKalutara.
J.A. L. Cooray, for the petitioner.
Izadeen Ismail, for the plaintiff, respondent,
Cur. adv. vult.
December 20, 1945. Jayetileke J.—
The question at issue in the application before us is simple and short.The answer, in our opinion, is equally so. The respondent filed actionNo. 23,406 of the District Court of Kalutara for the partition of a land.The petitioner sought to intervene in the action and his application wasrefused. On October 2, 1945, he tendered hia petition of appeal andmoved that notice of security be issued returnable on October 11, 1945,on which date the notice was reported to have been served on the re-spondent’s proctors. The District Judge held that the service of noticeon the respondent’s proctors was bad in law and made an order of abate-ment under section 756 (2) of the Civil Procedure Code. The presentapplication is for relief under section 756 (3). The sub-section readsas follows :
“ In case of any mistake, omission, or defect on the part of anyappellant in complying with the provisions of this section, the SupremeCourt, if it should be of opinion, that the respondent has not been'materially prejudiced, may grant relief on such terms as it may deemjust ”.
At the argument before us Mr. Cooray contended that the petitionerhad complied with the provisions of section 756 (1). He relied on thejudgment of De Kretser J. in De Silva v. Francinakamine1 where it was
1 41 N. L. R. 101.
Nugavxla (Basnayake JS/Uame) and Mohatiiaia.
held that the service of notice of tender of security for costs of appealon the respondent’s proctor was sufficient compliance with the require-ments of section 756 of the Civil Procedure Code.
It seems to us that this contention is sound. The question for ourdecision is whether the present application is in order. On the materialsbefore us we are of opinion that the petitioner is not entitled to ask thiscourt for relief under section 756 (3). He does not say that he failed tocomply with the provisions of section 766 (1) owing to a mistake, omission,or defect on his part. On the contrary he questions the legality of theorder made by the District Judge. In these circumstances his remedywas clearly by way of appeal. This view has the. support of Keunemanand Rose JJ. in Alt Marikar v. Urban Council1. The preliminaryobjection taken by Air. Ismail is entitled to succeed. We would,accordingly, dismiss the application with costs.
Soertsz A.C.J.—I agree.