THURASAMI v. SELLACHI.

THURASAMI v. SELLACHI.

D. C., Colombo, 16,488.

Civil Procedure code, s. 439-Mark of declarant made in affidavit-Validity of signature in Sinhalese.

A signature in Sinhalese set down by a process server in his affidavit is not a " mark " under section 439 of the Civil Procedure Code.

The dictum of Bonser, C.J., in The National Bank of India v. Fernando (D. C, Colombo, 6,892), decided by the Collective Court on 4th October, 1895, commented on.

THE plaintiff sued the defendants upon a promissory note granted by them. To his plaint, instituted under chapter 53 of the Civil Procedure Code, was attached the necessary affidavit showing that the amount he claimed was justly due to him. Judgment was entered upon report of summons served on the defendants. Thereupon the second defendant moved that the judgment be set aside on the ground that the summons had not been served.

The District Judge, Mr. D. F. Browne, set aside the decree upon a ground not taken by the defendants, and allowed liberty to them to file answer. His order was as follows: -

" Without discussing any of the contentions preferred, I must allow the motion of the defendants to set aside the decree for a reason which was not advanced in argument yesterday, but, being one which the Collective Court allowed as an absolutely good reason in D. C. Colombo, 6,892, on the 4th October, 1895, is binding upon me. That ruling was made in a like application to set aside a decree when the process server had signed the affidavit or affirmation whereon the Fiscal's return was based by something written in Sinhalese. Bonser, C.J., there held: ' In my opinion a signature in Sinhalese is nothing more than a mark, because the Court knows nothing of any other language than the English language:' Section 439 requires: ' and when a mark is made instead of a signature, the person who writes the marksman's name against the mark shall also sign his name and address in the presence of the Court," &c.

" Here the signature is written in Sinhalese, and the manuscript in the blanks in the printed form was (judging by the handwriting) filled in by some person other than the Deputy Fiscal before whom it was affirmed. This person did not write the signatory's name against the mark, and even if he had been the Deputy Fiscal

(who did here certify that the signatory had the matter interpreted to him and was affirmed thereto, which also was omitted in that case), I would consider that he ought also to have written the marksman's name against his mark. Hence ' this was not an affidavit at all, and furnishes nothing on which the Court could act,' as was there held.

" Decree set aside, and defendant, in view of his affidavit as to his defence, showing, as I consider, reasonable probability that he has a sufficient one, is allowed to file answer on or before the 9th instant. Costs to be costs in the cause."

Plaintiff appealed.

The case came up for argument before Moncreiff, A.C.J., and Wendt, J., on the 15th July, 1902, and was referred by them to a bench of three Judges.

On the 17th July the case was argued before Moncreiff, A.C.J., Wendt, J., and Middleton, J.

Dornhorst (with Walter Pereira), for appellant.-The authority relied upon by the District Judge (D. C, Colombo, 6,892, decided on the 4th October, 1895) is only an obiter dictum of Chief Justice Bonser. The Civil Procedure Code, section 439, provided that when a person, made a mark instead of a signature, the marksman's name should be written out by a person against the mark, and that the writer of the marksman's name should sign his own name and address. Bonser, CJ,. did not put the mark and signature on the same level, but only observed that the law made a signature in Sinhalese, or any other language than English, even with a mark, so far as such signature and mark necessitated certain requirements in common, but of course in the case of the mark the person who writes the marksman's name sh

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