1953 Present: Gunasekara J, and Pulle J.

K. KADIRGAMADAS et al., Appellants, and K. SUPPIAH et al.,
Respondents

S. C. (Inty.) 2-D. C. Jaffna, 3,468

Civil Procedure Code-Proctor-Appointment-Requirement of writing signed by the client-Section 27-Death of plaintiff-Assignee's claim to be substituted as plaintiff-" Legal representative "-Section 394 (2).

When the petition of appeal was filed on behalf of the defendants, the Proctor who presented it had not been appointed in writing, as required by section 27 of the Civil Procedure Code, to act for some of the appellants. He was so appointed after the appealable time had expired. He had, however, without objection from any of the parties, represented all the defendants at various stages of the proceedings earlier.

Held, that the irregularity in the appointment of the Proctor was cured by the subsequent filing of a written proxy.

Held further, that where the plaintiff in a pending action dies it is only his legal representative who can be substituted as a party in his place. A person, therefore, who claims the plaintiff's interests in the action by virtue of an assignment which had been made by the plaintiff is not entitled to be substituted, as he is not a legal representative within the meaning of section 394 (2) of the Civil Procedure Code.

APPEAL from a judgment of the District Court, Jaffna.

S. J. V. Chelvanayakam, Q.C., with H. W. Tambiah and Felix Dias, for the substituted defendants.

C. Renganathan, for the 1st substituted plaintiff respondent.

Cur. adv. vult.

September 22, 1953. GUNASEKARA J.-

This appeal arises out of an action instituted in the District Court of Jaffna by Sithamparapillai Arumugam against two defendants, Kumaravetpillai and his son Kadirgamadas. The plaintiff Arumugam and the first defendant Kumaravetpillai have both died, and the present defendants, including the second defendant Kadirgamadas, have been substituted in the place of the first defendant, being his legal representatives. The appeal is against an order made by the learned District Judge on the 4th April, 1952, by which he purported to set aside an order that had been made by his predecessor on the 4th June, 1951, substituting the second to sixth respondents in place of the deceased plaintiff Arumugam, and to substitute instead the first respondent Suppiah. The appeal has been filed in the name of all the present defendants by Mr. Nalliah, who has signed the petition as proctor for the appellants.

A preliminary objection to the hearing of the appeal was taken by the learned counsel for the first respondent on the ground that Mr. Nalliah had authority to sign the petition of appeal only on behalf of the second defendant Kadirgamadas and not on behalf of the other defendants. When the petition of appeal was filed, on the 25th April, 1952, Mr. Nalliah had not been appointed in writing, as required by section 27 of the Civil Procedure Code, to act for these defendants. He was so appointed later, on the 8th May, 1952, after the appealable time had expired. In the meantime, however, he had, without objection from any of the parties, appeared for these defendants and acted as their proctor in the proceedings that were held upon the first respondent Suppiah's application to be substituted in place of the deceased plaintiff. On the 16th November, 1951, he applied for time to file on behalf of these defendants a statement of objections to Suppiah's application, and was granted time to do so. On the 17th December, 1951, he filed a statement of objections on then-behalf. On the 23rd January, 1952, and the 21st March, 1952, he appeared for them at the inquiry into the application, and he also represented them when the order that is appealed from was delivered on the 4th April, 1952. We are satisfied that Mr. Nalliah had been authorised by the substituted defendants to file an appeal on their behalf, although they had o