Fernando Et Al. V. Mathew Et Al.

Present: Middleton J. and Wood Renton J.

In re the Estate of H. P. Fernando Wimalagoonewardene.

FERNANDO et al. v. MATHEW et al.

140-D. C. Colombo, 3,858.

Joint proxy in favour of one proctor by several executors-Application by some of the executors to revoke the proxy granted by them-Discretion of Court-Civil Procedure Code, s. 27.

Section 27 of the Civil Procedure Code invests the Court with a real discretion as. to whether or not the revocation of a proxy should be allowed

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

Bawa (with him H. A. Jayewardene and A. St. V. Jayewardene), for appellants,-A party has a general right to change his pleader. This section no doubt makes it necessary to obtain the leave of the Court for that. The Court will usually grant leave on the request of the party. See Hukm Chand's Civil Procedure Code,. vol. I., p. 493. James L. J. said in Ex parte Yalden,1 " A man has a right to change his solicitor if he likes, but then the law imposes certain terms in favour of the solicitor, that is to say, that the papers in the suit cannot be taken out of his hands without his having his costs paid ".

The Civil Procedure Code nowhere gives the grounds on which leave to revoke a proxy could be given or withheld; the position of proctor and client is merely that of an agent and principal The proctor cannot insist on acting for the client against the client's will. In re Galland,2 Saffron Walden Building Society v. Rayner.3

The four executors need not have gone to one proctor at the start; there is nothing to prevent their separating at this stage.

Wedderburn v. Wedderburn,4 relied on by the Judge, is not quite in point.

van Langenberg (with him Weinman and Schneider), for the respondents.-The principles of English law do not apply to Ceylon; in Ceylon the proctor is an officer of Court.

There is nothing to prevent the appellants to give a proxy to another proctor when they cannot agree on any important matter; but it would be most inconvenient to have four proctors doing the work of the four executors in ordinary matters. The cost would be enormous.

1 (1876) 4 Ch. D. 131.                             2 (1880) 14 Ch. D. 406.

2 (1885) 31 Ch, D. 296,300.                 4 17 Beav, 158.

Bawa, in reply.-The fact that Messrs. Prins and Swan have brought many charges against the appellants is enough to show that the proxy could not be allowed to stand.

The appellants are prepared to bear the extra costs.

Cur. adv. vult.

November 7, 1911. Wood Renton J.-

The applicants, appellants, two of the executors appointed under the will of the late H. P. Fernando, moved the District Court of Colombo that they might be allowed to revoke the proxy granted by them, together with the other two executors, to Messrs. Prins and Swan, Proctors, in connection with the testamentary case. The learned District Judge disallowed the motion, and the present appeal is brought against his order doing so.

The material facts have been stated by the District Judge, and I do not propose to repeat them. It appears to me that section 27 of the Civil Procedure Code invests the Court with a real discretion as to whether or not the revocation of a proxy should be allowed, and that in such cases as the present the only question to be decided is whether that discretion has been shown to have been wrongly exercised. I am not prepared to answer that question in the affirmative in this case. All four executors concurred in the joint proxy given to Messrs. Prins and Swan at the commencement of the proceedings. The case is a testamentary one, and the proxy authorized Messrs. Prins and Swan, not merely to apply for probates, but to do, all necessary acts in the subsequent testamentary proceedings. The allegations which the learned District Judge

has accepted-in the affidavits filed by Messrs. Prins and Swan and Mr. C. J. Mathew, one of the executors, respondents, show t

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