Abeyesekere V. Harmanis Appu Et Al.

Present: Wood Renton J. and Grenier J.   July.12,1911

ABEYESEKERE v. HARMANIS APPU et al.

C. R. Balapitiya, 7,168.

Restitutio in integrum-Procedure indicated.

The remedy of restitutio in integrum, is one which has taken deep root in the practice and procedure of our Courts, and it is too late to hold that the remedy ought no longer to be recognized.

(1) Applications for restitutio in integrum should be made in open Court by petition supported by affidavit and by all the materials necessary for the purpose of making out a primâ facie case for relief, such application being made to a Bench of one Judge, or of two Judges, according as the tribunal of first instance is the Court of requests or the District Court, and not by petition addressed to the Judges in Chambers; (2) the application should be in the first instance ex parte; (3) if the Court is of opinion that a primâ fade case for relief has been made out, notice must be given to the other side; (4) if after hearing both sides the Supreme Court is satisfied that restitution should be granted, the case should be remitted for further inquiry and adjudication in the court of first instance; (5) such adjudication, subject to an appeal where a right of appeal exists, is final.

THE facts are set out in the judgment of Wood Renton J.

Batuwantudawe, for applicant.

A. St. V. Jayewardene, for respondent.

Cur. adv. vult.

July 12,1911. Wood Renton J.-

This is an application for restitutio in integrum by the plaintiff in C. R. Balapitiya, 7,168. Under a writ issued in that action at the instance of the present applicant against the defendants, a 2-9ths part of a land called Maradanawatta, situated at Godagama, was seized in execution. The applicant and five others claimed the entirety of the land. The claim was duly reported to the Court, and at the inquiry the applicant was represented by a proctor, who alleges that he consented to the applicants' claim for an 8-9ths part of the land being allowed, intending that the remaining l-9th should be left to be fought out in an action under section 247. The Court made the following order: " Parties agree that the claimants' claim to 1-9th be upheld, and also the other 7-9ths,

except Carolis's l-9th, which, having been previously sold to one of the creditors, be declared saleable under the seizure." The applicant instituted an action under section 247 with regard to the l-9th. part of the land above named. It is stated in the petition in support of the application for revision that the proctor " had no occasion to look into the record in the claim proceedings " till the answer in the action under section 247 was filed, " when he found that by a misapprehension the learned Commissioner had made a wrong entry." The applicant's proctor thereupon explained to the Court what he had intended to agree to at the claim inquiry. The learned Commissioner accepted the explanation, heard the case on its merits, and gave judgment in the applicant's favour. The Supreme Court in appeal set that judgment aside, holding that the applicant's claim should have been dismissed in view of the order in the claim inquiry which still stood on the record, but reserved the right of the applicant, if he was so advised, to institute proceedings for restitutio in integrum.

The case was argued before my brother Grenier and myself on June 26 last, and we then dismissed the application with costs, stating, however, that the grounds of our judgment would be given at a later date. I am clearly of opinion on the merits that the case was not one in which restitutio in integrum could properly have been granted. It is by no means clear that, whatever the proctor may have intended to agree to, any mistake was made by the Commissioner in recording what he actually agreed to, or that the Commissioner in accepting his explanation accepted anything more than his statement as to what his intention had been. Moreover,

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