IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for Restitutio- in-Integrum under Article 138 of the Constitution of the Republic of Sri Lanka CA (RII) 09/2020 DC Colombo Case No:

DDR/25/2019 E.T.I. Finance Limited Principle place of business No. 114, Ward Place, Colombo 07.

Registered Office No.122, Ward Place, Colombo )7.

Plaintiff.

Vs.

Meegodage Manjula Asiri Deepal Suraweera Batupitigama, Wariyapola.

Defendant And Now Meegodage Manjula Asiri Deepal Suraweera Batupitigama, Wariyapola.

Defendant-Petitioner Vs.

E.T.I. Finance Limited Principle place of business No. 114/ Ward Place, Colombo 07.

Registered Office No.122, Ward Place, Colombo )7.

Plaintiff.-Respondent Before: D.N. Samarakoon, J.

B. Sasi Mahendran, J.

Counsel: S.N. Vijithsingh for the Defendant-Petitioner.

K.Wasantha S. Fernando with K.Dharmaratnam for the Plaintiff-

Respondent Argued On : 01.02.2023 Decided On : 04.04.2023 B. Sasi Mahendran, J.

This is an application invoking the extraordinary restitutionary jurisdiction of this Court in terms of Article 138(1) of the Constitution. The Defendant-Petitioner (hereinafter referred to as “the Petitioner”) seeks, inter alia, to set aside the orders of the District Court of Colombo dated 16^th January 2020 (“X5”) and 12^th March 2020 (“X6”) in case bearing No. DDR/25/2019 by which the learned District Judge required the Defendant-Petitioner to pay into court the sum mentioned in the decree nisi and made the decree nisi absolute, respectively.

The factual matrix, in brief, is as follows. The Plaintiff -Respondent (hereinafter referred to as “the Respondent”) instituted an action (by Plaint dated 14^th January 2019 – “X1”) in the District Court of Colombo under the provisions of the Debt Recovery (Special Provisions) Act No. 2 of 1990, as amended by Act No. 9 of 1994, to recover a sum of Rs. 5,743,813.76/- together with interest owed to it by virtue of a loan agreement (“B” on page 98 of the Brief) entered on the 31^st of August 2015 between the Petitioner and the Respondent. On being satisfied that the Respondent met the prerequisites to institute this action and the contents of the Plaint, the Court duly entered a decree nisi on 16^th May 2019. The Petitioner filed an application for leave to appear and show cause (“X2”). The inquiry about whether to permit the Petitioner to appear and show cause was disposed of by way of written submissions. The learned Judge by the impugned order dated 16^th January 2020 (“X5”) directed that the Petitioner pays into court the sum mentioned in the decree nisi. As depicted in the journal entry dated 12^th March 2020 (“X6”) the decree nisi was made absolute when the Petitioner failed to do so.

The Petitioner’s main grievance is that as the Petitioner had already mortgaged his property to the Respondent, the Respondent is disentitled to resort to the provisions of the Debt Recovery Act and action ought to have been instituted under the Mortgage Act No. 6 of 1949, as amended, to claim its debt. The learned Additional District Judge overruled the said objection and directed the Petitioner to pay into court the sum mentioned in the order nisi. When the Petitioner failed to do so, the decree nisi was made absolute. It is against these orders that the present application is filed.

At the argument, the Petitioner raised the following grounds against the said order. Firstly, the learned District Judge did not set out the date on which the security was to be deposited by the Petitioner, for him to appear and show cause. Secondly, as aforesaid, the Petitioner had already mortgaged his property to the Respondent, and as such, the Respondent is disentitled to seek refuge within the provisions of the Debt Recovery Act. Thirdly, the affidavit tendered along with the Plaint was not in conformity with the law since it was not tendered by the “principal officer”.

Date to deposit security It is true that the order (“X5”) does not indicate the date for payment on the face o