018-SLLR-SLLR-2001-V-2-AUSTRALANKA-EXPORTER-PVT-LTD-v.-INDIAN-BANK.pdf
AUSTRALANKA EXPORTERS PVT LTDv.
INDIAN BANK
COURT OF APPEALJAYAWICKRAMA, J.
FERNANDO, J.
C.A. 1009/98
COM/HC OOLOMBO 15/96FEBRUARY 14, 2001.
High Court of the Provinces (Special Provisions) Act No. 10 of 1 %96 – S.5- Constitution Article 154P – Revision of Order of Commercial HighCourt – Jurisdiction of the Court of Appeal. Civil Procedure Code S.88(2).
The Plaintiff Respondent instituted hypothecary action in the CommercialHigh Court of Colombo, to recover a sum of money lent to the Defendant-Petitioner as the Defendant Petitioner defaulted the matter went exparteand decree was entered against the Defendant Petitioner. The Applicationto purge default was dismissed. Thereafter the Defendant Petitioner soughtto revise the said Order of the High Court-
Held :
The Order of the High Court Judge refusing the application to setaside the exparte order has been made under S.88(2) C.PC.,
In terms of S.59 of the Mortgage Act where a hypothecary action isheard exparte under S.84 and 85 C.PC. the decree entered thereundershall not be set aside under the provisions of S.86 and the Judgmententered thereunder shall not be deemed to be a judgment enteredupon default for the purposes of S.88 of the Code. The said order isa lawful order.
Held further :
However the Appellate jurisdiction in respect of Judgments and ordersof the High Court of the Provinces made in the exercise of its civiljurisdiction is vested exclusively in the Supreme Court.
APPLICATION in Revision from the Order of the Commercial High Court,
Colombo.
CA
157
Dr. Jayattssa de Costa with Helmayaka for Petitioner.
P. Jayawardena for Respondent.
Cur. adv. vult.
March 12, 2001.
RAJA FERNANDO, J.The Defendant-Petitioner-Petitioner (hereinafter referred toas tne Petitioner) has filed this application to revise the order ofthe leafned High Court Judge of the Commercial High Court ofColombo made on 24.8.1998 dismissing the Petitioner’sapplication to set aside the decree entered on the judgment ofthe Court made on 18.06.97.
When this matter was taken up for Argument on 16thNovember, 2000, the Plaintiff-Respondent-Respondent(hereinafter referred to as the Respondent) raised severalpreliminary objections. Both parties agreed to file writtensubmissions on the preliminary objections and-invited court tomake order on the written submissions filed.
The preliminary objections raised by the Respondent are :
The only remedy available in law for the Petitioner is anappeal in terms of Section 88(2) of the Civil ProcedureCode;
In terms of Section 5 of the High Court of the Provinces(Special Provisions) Act No. 10 of 1996 an appeal orapplication from judgments or orders of the High Courtestablished by Article 154 P of the Constitution in theexercise of its Civil Jurisdiction lies to the Supreme Courtand not to the Court of Appeal;
The Petitioner’s Application for Revision must fail sincehe has failed to aver the existence of any exceptionalcircumstances which justify the invocation of therevisionaiy jurisdiction;
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158Sri Lanka lG&irj£0t&7: ^ A.: ^2001] 2 Sri L.R.
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The Petitioner’s application would fail for non-compliance with the mandatoiy provision of Rule 3( 1)of the Court of Appeal (Appellate procedure) rules of1990;
The Petitioner is guilty of laches.
The facts of this case are briefly as follows:
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The Respondent (Petitioner) instituted this action 6aga)nstthe Petitioner for the recoveiy of a sum of money the ResppndentBank lent and advanced to the Petitioner upon the security of amortgage bond which the Petitioner failed and neglected to repay.
The action was to recover the said money and to enforcethe Mortgage bond for the said recovery of the monies lent.
The Petitioner filed answer admitting the execution of theMortgage bond and the fact that he has borrowed monies fromthe Respondent. Thereafter the Petitioner has defaulted inappearing and the matter has been fixed for ex parte trial by thelearned trial judge on 9.6.97. After ex parte trial on 18th June98 judgment and decree has been entered in a sum ofRs.3,000,000/= and interest thereon.
After service of the ex parte decree the Petitioner has filedpetition dated 21.11.97 making an application to vacate thesaid decree.
At the inquiry into the application to vacate the ex partedecree the Petitioner has not led any evidence and moved thatthe matter be decided on the written submissions filed by bothparties.
After considering the written submissions tendered by theparties the learned High Court Judge has on 24.8.98 refusedthe application to set aside the judgement and decree.
CA
159
"Pot Ltd o. Indian Bank
Rajapakse oiando J }
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Undoubtedly the order or the learned High Court Judgerefusing the application to set aside the ex parte order has beenmade under the Provisions of Section 88(2) of the Civil ProcedureCode.
Section 59 of the Mortgage Act states “where a hypothecaryaction is heard ex parte under Sections 84 and 85 of the CivilProcedure Code the decree entered thereunder shall not be setasidg under the provisions of Section 86 of that codctand thejudgment entered thereunder shall not be deemed to be ajudgment entered upon default for the purpose of Section 88 ofthat cocle”.
Hence the order of the learned High Court Judge dismissingthe application to vacate the order made ex parte is a lawfulorder.
Section 5 of the High Court of the Provinces (SpecialProvisions) Act No. 10 of 1996 has clearly enacted that “Anyperson who is dissatisfied with any judgment pronounced by aHigh Court established by Article 154(P) of the Constitution, inthe exercise of its jurisdiction under Section 2, in any actionproceeding on matters to which such person is a party mayprefer an appeal to the Supreme Court against such judgment,for any error in fact or in law.”
Appellate jurisdiction in respect of judgments and ordersof the High Court of the Provinces made in the exercise of itscivil jurisdiction is vested exclusively in the Supreme Court.
On the above grounds the application for revision shouldbe dismissed.
Further the Petitioner has not urged any exceptionalcircumstances for the exercise of the discretionary powers ofrevision of this Court.
The petitioner has failed to submit to Court all the journalentries and relevant pleadings and documents in this action
160Sri Lankaw if([2001] 2 Sri L.R.
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which are material for a deterlfiinktion of his application andhence this application should be dismissed for violation of rule3( 1) of the Court of Appeal (Appellate Procedure) Rules of 1990.
Considering all the circumstances of this case this court isof the view that the present application for revision filed by thePetitioner has no basis in fact or in law.
Therefore the application for revision is dismissed with postsfixed at Rs.20,000/=.
JAYAWICKRAMA, J. – I agree.Application dismissed.