049-NLR-NLR-V-41-PERERA-et-al.-v.-DE-SILVA.pdf
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DE KRETSER J.—Perera v. de Silva.
1939Present: de Kretser and Nihill JJ.
PERERA et al. v. DE SILVA268—D. C. Colombo, 706.
Petition of appeal—Petition not presented by Proctor on record—Fatal irregu-larity—Civil Procedure Code, s. 754.
The requirement of section 754 of the Civil Procedure Code that thepetition of appeal shall be presented to the Court of first instance by theparty appealing or his authorized Proctor is imperative.
Assauw v. Pestonjee (1 S. C. R. 221) distinguished.
A PPEAL from a judgment of the District Judge of Colombo.
N. E. Weerasooria, K.C. (with him Kingsley Herat), for plaintiff,appellant.
N. Nadarajah (with him H. A. Wijemanne and S. Mahadeva), fordefendant, respondent.
Cur. adv. vult.
June 2, 1939. de Kretser J.—
The petition of appeal which is filed in this case was presented to Courton August 5, 1938, by Mr. Wanigasooriya, Proctor. At that date theappellant’s Proctor was Mr. Livera, and though Mr. Wanigasooriyapurported to present a proxy aiong with the petition of appeal he hadno authority to do so since the previous proxy remained unrevoked.
Mr. Livera’s proxy was revoked on August 12, and thereafterMr. Wanigasooriya filed a fresh proxy.
Objection is taken to the appeal being received on the ground that ithas not been signed by a Proctor who was authorised to sign it, and thecase of Silva v. Cumaratunga1 is relied upon.
Mr. Weerasooriya for the appellant quotes the case of Assauw v. Pes-tonjee 2 and states that although the petition has not been signed by theproper Proctor it has been countersigned by Counsel and thereforesatisfies the requirement of section 755, as was held in Assauw v. Pestonjee ;but he isgnet with the difficulty that section 754 enacts that the petitionof appeal shall be presented to the Court of first instance^ by the party> 40 -V. L. R. 139.-1 s. C. R. 221.
Wickremesinghe v. Abeygunewardene.
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appealing or his Proctor. Earlier in section 754 it is provided that everyappeal to the Supreme Court “ shall be preferred as hereinafter statedThe terms are imperative and one can well see why it is necessary thatthe appeal should be presented by the party appealing or his authorizedProctor. Otherwise we may have, possibly, a number of interloperscoming in. Section 755 deals with the manner in which the wholepetition is to be drawn up and specifies that it shall be drawn and signedby an Advocate or Proctor, and also provides for a party who has neitheran Advocate nor a Proctor to help him.
In the case of Assauw v. Pestonjee, the Proctor who signed purported tosign for and on behalf of the Proctor on the record—he did not purport toact independently,—and Counsel who settled the petition must be takento have signed the petition after it had been duly drawn by the Proctoron record. While therefore the decision might apply to section 755 ofthe Code it could have no bearing on section 754.
The appeal in this case is therefore irregular and must be dismissedwith costs.
Nihill J.—I agree.
Appeal dismissed.