Legal Services and Laws of Sri Lanka


SLR-2001 Vol.2-P156

SLR - 2001 Vol.2, Page No - 156

AUSTRALANKA EXPORTERS PVT LTD

v.

INDIAN BANK
COURT OF APPEAL

JAYAWICKRAMA, J.

FERNANDO, J.

C.A. 1009/98

COM/HC COLOMBO 15/96

FEBRUARY 14, 2001.
High Court of the Provinces (Special Provisions) Act No. 10 of 1996 - S.5 - Constitution Article 154P - Revision of Orderof
Commercial High Court - Jurisdiction of the Court of Appeal. Civil Procedure Code S.88(2).

The Plaintiff Respondent instituted hypothecary action in the Commercial High Court of Colombo, to recoverasumofmoney
lent to the Defendant Petitioner as the Defendant Petitioner defaultedthematterwentexparteanddecreewasentered
against the Defendant Petitioner. The Application to purge default was dismissed. Thereafter the Defendant Petitionersought
to revise the said Order of the High Court

Held :
(i) The Order of the High Court Judge refusing the application to set aside the exparte order hasbeenmadeunderS.88(2)
C.P.C.,

In terms of S.59 of the Mortgage Act where a hypothecary action is heard exparte under S.84 and 85 C.P.C. the decreeentered
there under shall not be set aside under the provisions of S.86 and the Judgment entered there under shall not bedeemedto
be a judgment entered upon default for the purposes of S.88 of the Code. The said order is a lawful order.
Held further :
(ii) However the Appellate jurisdiction in respect of Judgments and orders of the High Court of theProvincesmadeinthe
exercise of its civil jurisdiction is vested exclusively in the Supreme Court.
APPLICATION in Revision from the Order of the Commercial High Court, Colombo.
157
Dr. Jayatissa de Costa with J. Hennayaka for Petitioner.

P. Jayawardena for Respondent.
Cur. adv. vult.
March 12, 2001.
RAJA FERNANDO, J.
The Defendant-Petitioner-Petitioner (hereinafter referred to as the Petitioner) has filedthisapplicationtorevisethe
order of the learned High Court Judge of the Commercial High Court of Colombo made on 24.8.1998 dismissingthePetitioner's
application to set aside the decree entered on the judgment of the Court made on 18.06.97.

When this matter was taken up for Argument on 16th November, 2000, the Plaintiff-Respondent-Respondent (hereinafterreferred
to as the Respondent) raised several preliminaryobjections.Bothpartiesagreedtofilewrittensubmissionsonthe
preliminary objections and invited court to make order on the written submissions filed.

The preliminary objections raised by the Respondent are :

(1) The only remedy available in law for the Petitioner is an appeal in terms of Section 88(2) of the Civil Procedure Code
(2) In terms of Section 5 of the High Court oftheProvinces(SpecialProvisions)ActNo.10of1996anappealor
application from judgments or orders of the High Court established by Article 154 P of the Constitution intheexerciseof
its Civil Jurisdiction lies to the Supreme Court and not to the Court of Appeal
(3) The Petitioner's Application for Revision must fail since hehasfailedtoavertheexistenceofanyexceptional
circumstances which justify the invocation of the revisionary jurisdiction
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(4) The Petitioner's application would fail for noncompliance with the mandatory provision ofRule3(1)oftheCourtof
Appeal (Appellate procedure) rules of 1990
(5) The Petitioner is guilty of laches.
The facts of this case are briefly as follows:

The Respondent (Petitioner) instituted this action against the Petitioner for the recovery of a sum of moneytheRespondent
Bank lent and advanced to the Petitioner upon the security of a mortgage bond which the Petitioner failedandneglectedto
repay.

The action was to recover the said money and to enforce the Mortgage bond for the said recovery of the monies lent.

The Petitioner filed answer admitting the execution of the Mortgage bond and the fact that he has borrowedmoniesfromthe
Respondent. Thereafter the Petitioner has defaulted in appearing and the matter has been fixed forexpartetrialbythe
learned trial judge on 9.6.97. After ex parte trial on 18th June 98 judgmentanddecreehasbeenenteredinasumof
Rs.3,000,000/= and interest thereon.

After service of the ex parte decree the Petitioner has filed petition dated 21.11.97 making anapplicationtovacatethe
said decree.

At the inquiry into the application to vacate the ex parte decree the Petitioner has not led any evidence and moved thatthe
matter be decided on the written submissions Sled by both parties.

After considering the written submissions tendered by the parties the learned High Court Judge hason24.8.98refusedthe
application to set aside the judgement and decree.
159
Undoubtedly the order of the learned High Court Judge refusing the application to set aside the ex parte order has beenmade
under the Provisions of Section 88(2) of the Civil Procedure Code.

Section 59 of the Mortgage Act states "where a hypothecary action is heard ex parte under Sections 84 and85oftheCivil
Procedure Code the decree entered there under shall not be set aside under the provisions of Section 86 of that code andthe
judgment entered there under shall not be deemed to be a judgment entered upon default for the purpose of Section 88 ofthat
code".

Hence the order of the learned High Court Judge dismissing the application to vacate the order madeexparteisalawful
order.

Section 5 of the High Court of the Provinces (Special Provisions) Act No. 10 of 1996 has clearlyenactedthat"Anyperson
who is dissatisfied with any judgment pronounced by a High Court established by Article 154(P) of theConstitution,inthe
exercise of its jurisdiction under Section 2, in any action proceeding on matters to which such person is a party mayprefer
an appeal to the Supreme Court against such judgment, for any error in fact or in law."

Appellate jurisdiction in respect of judgments and orders of the High Court of the Provinces madeintheexerciseofits
civil jurisdiction is vested exclusively in the Supreme Court.
On the above grounds the application for revision should be dismissed.
Further the Petitioner has not urged any exceptional circumstances for the exercise of the discretionary powersofrevision
of this Court.

The petitioner has failed to submit to Court all the journal entries and relevant pleadings and documents in this action
160
which are material for a determination of his application and hence this application should bedismissedforviolationof
rule 3(1) of the Court of Appeal (Appellate Procedure) Rules of 1990.

Considering all the circumstances of this case this court is of the view that the present application for revisionfiledby
the Petitioner has no basis in fact or in law.

Therefore the application for revision is dismissed with costs fixed at Rs.20,000/=

JAYAWICKRAMA, J. - I agree.

Application dismissed.


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