In the Matter of the Last Will and Testament of JOHN ARON FERDINANDUS

In the Matter of the Last Will and Testament of JOHN ARON
FERDINANDUS.

D. C, Colombo, C 570.

Formal order of court-Probate-Caveat-. Exparte order-Notice of appeal Civil Procedure Code, ss. 535 and 526 Useless motions.

An order to be treated as such must be formally drawn up and recorded as required by the Civil Procedure Code.

After an order absolute in the first instance under section 529 of the Civil Procedure Code granting probate of a will to an applicant has been made, it is too late to enter a caveat under section 535.

If the probate has been granted wrongly, it may be recalled under section 536.

Such an order upon a motion, notice whereof was not given to any person, is an exparte order, although it was made after such person had appeared and opposed the motion, and no notice is necessary to be given to such person of an appeal preferred by the applicant.

When an application for probate is once allowed, there is no necessity for a further motion that probate do issue to the applicant.

ON the 1st March, 1895, Louisa Karunaratna, who was named in a document which purported to be the last will of J. A. Ferdinandus, deceased, as his executrix, presented to the District Court a petition and affidavit, together with the said last will, and, in terms of section 525 of the Civil Procedure Code, moved for probate thereof, alleging that she had no reason to suppose that her application would be opposed by any person. The District Judge made an order absolute, under section 529, declaring the will proved, and that probate do issue on her taking the oath of office. Six days afterwards certain persons filed in Court a docu­ment in the nature of a caveat. The petitioner, ignoring this opposition, took her oath of office and moved exparte that " probate be granted " to her. The caveators appeared and opposed the motion. The Court ordered that the petition and affidavit

filed by Louisa Karunaratna be taken off the file, and that she September 26.do file a fresh petition and affidavit naming the caveators as respondents.

The petitioner appealed as from an exparte order.

Ramanathan, S.-G. (with him Pereira), appeared for her.

Layard, A.-G., appeared for the caveators and took the prelimi­nary objection that they had not received notice of appeal.

Ramanathan, S.-G.-No notice is necessary, as the order of the Court below should be looked upon as exparte notwithstanding the appearance of the so-called cavea

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