029-NLR-NLR-V-39-ZAHIRA-UMMA-v.-ABEYSINGHE-et-al.pdf
34
ABRAHAMS CJ.—Zahira Umma v. Abeysinghe.
1937Present: Abrahams C.J., Maartensz and Soertsz JJ.
ZAHIRA UMMA v. ABEYSINGHE et al.
411—Dt. C. Colombo, 302.
Appeal—Order of abatement—Application for relief—When relief should notbe granted—Civil Procedure Code, s. 756.
Where an appeal has abated under section 756 of the Civil ProcedureCode and relief is sought against the order of abatement, the properprocedure is by way of an application -for relief to the Supreme Court.
Application for relief under-the section should not be granted in thefollowing cases : — (a) Where there has been, a non-compliance with theterms of the section without an excuse irrespective of the questionwhether material prejudice has been caused or not. (b) Where thenon-compliance with an essential term is trivial but material prejudicehas been caused.
C
ASE referred to a Bench of three Judges by Koch and Moseley JJ.
on the point whether an appeal lies from an order of abatement
of an appeal entered under section 756 of the Civil Procedure Code.
, C. T. Olegasegaram, for petitioner.
Chelvanayagam (with him Wickremanayake and Muttucumaru), forrespondents.
Our. adv.' vult.
May 5, 1937. Abrahams C.J.— –
This case was referred to us by a Bench of two Judges on the questionas to whether an application for relief under section 756 of the CivilProcedure Code should be pursued by way of appeal and Mr. Justice
ABRAHAMS C J.—Zahira Ultima v. Abeysinghe.
89
Koch stated in his reference that there can be little doubt that anappeal can be preferred to this Court from such an order, that is to say,that a petition of appeal was held by the District Judge to have abated.It would seem, however, that on the facts of the case .the learned DistrictJudge had no option but to hold that the appeal had abated and theapplication of the petitioner for relief was framed as if it were anapplication in revision. In our opinion an order of abatement is notappealable where the District Judge had no option because an appealmust protest against some error of law or fact made in the order inrespect of which relief is sought. Probably Mr. Justice Koch thoughtthat in view of the way in which the petition was drawn up thepetitioner was in point of fact questioning the-legality or propriety ofthe order which. had been made. The petitioner has drawn up thepetition in the form in which she did out of ignorance as to what theproper procedure really was. The provision appended by way ofamendment to section 756 clearly indicates that where relief is soughtagainst an order of abatement the .proper procedure is by way of anordinary application to the Supreme Court for relief. There is no doubtthat the application does not indicate that the legality or propriety ofthe order of abatement is in any way questioned and it is thereforeobviously incumbent upon us to regard it as if it had been properlypreferred. That being so, the question is whether the circumstancesattaching to this case justify our giving relief.
The petitioner says, that the last day for entering the petition ofappeal was July 3, 1936, and the last day for tendering security wasJuly 15, 1936.. Under section 756 it was her duty forthwith to givenotice to the respondent that she would tender security at the propertime and the relevant form in which this notice is to be given containsa provision specifying in what manner the security is to be tendered.She did not give notice, of security but she produced a security by way ofmortgage at the proper time, although there was no inquiry as towhether that security was satisfactory. She says she was unable at thetime when she ought to have given notice of security to say what formthe security was going to take, but she says that in view of the fact thatshe has produced an adequate security within the proper time and thatno material prejudice has been caused to the respondent she ought toreceive the relief which we are empowered to give in an appropriatecase. I think, however, that if we gave relief in this case we should becompletely ignoring that provision of section 756 which says that noticeof security must be given and the fact that no material prejudice hasresulted, and I see no reason why in the circumstances we should inquireas to whether it has resulted, cannot be regarded as an excuse for non-compliance with an essential term of section 756. The petitioner saysthat she did everything she could, but she has not given any excuse fornot doing what she should.
It seems to me that there are two forms of a -breach of section 756in respect of which this Court ought not to give relief. One is when,whether a material prejudice has been caused or not, non-compliancewith one of the terms of section 756 has been made without an excuse,and the other is when though non-compliance with an essential term
86
FERNANDO AJ.—Seethanganiammal v. Eliyaperiimal.
nay be trivial, a material prejudice has been occasioned. This caseseems to me to fall under the first of these categories.
Two cases have been cited to us in aid of the petitioner.' The firstwas Jayawardene v. Abdul Carder1 and the other Martin Singho v.Paulis Singho *. It is sufficient to say that neither of these cases givesan assistance to the petitioner.
The application should, in my opinion, be dismissed with costs.Maabtensz J.—I agree.
Soertsz J.—I agree.
Application dismissed.