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Present: Dalton and Lyall Grant JJ.
DE SILYA v. DE SILVA.98—D. C. (Inty.) Gdlle, Jt4£0.
PrivyCouncil—Conditionalleave to appeal—Security—Mortgage ' »/
In an appeal to the Privy Council the appellant U entitledto give security for the respondent’s costs by the mortgage, andhypothecation of iminovable property.
The requirements, which the applicant must comply with9 before such security can be accepted, indicated l
PPLICATION by appellant, who had obtained conditionalleave to appeal to the Privy Council, to give security for
respondent's costs by the mortgage and hypothecation of anundivided half share of an allotment of land stated to be of over thevalue of Rs. 3,000.
J. S. Jayawardene, for appellant.
ff. P. Perera (with Yethavanam), for respondent.
January 31, 1927. Dalton J.—
This is an application by the appellant, who has obtainedconditional leave to appeal to the Privy Council, to this Court toapprove of the appellant giving security for the respondent's costsby the mortgage and hypothecation of an undivided half shareof an allotment of land, which half share is stated to be of thevalue of over Rs. 3,000 and to be free of encumbrance.
The application was opposed by the respondent. We thereuponreferred the application to the Registrar for report as to the suffi-ciency or otherwise of the security proposed, and also as to the
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practice of the Court in such case and to say whether as a rule 1927.money is deposited or property hypothecated.jut-rox J
The Begistrar now reports that the almost invariable practice has '’p?been to call upon the appellant to deposit the required security incash, and that within the last ten years there has been only onedeparture from this practice, so far as he has been able to ascertain.
In that one case (190-101, D. C. Jaffna, 9,671) a similar applicationto the one now before us was made to the Court, which thereuponreferred the matter to the District Court to satisfy itself as to thevaluation of the property tendered as security. _ Upon the DistrictJudge reporting that the security was sufficient this Court directedthat the hypothecation of the lands for the security of Bs. 3,000 beaccepted. No mention is made of any reason why the usualpractice was not followed.
The respondent resists the application principally upon theground that the form of security offered is objectionable, and thatif a mortgage is accepted as proposed, he may have considerabledifficulty in realising his security, should he become entitled to doso. He also lays stress on the practice that has obtained for so'long, and asks that that practice be not departed from in the absenceof any good and sufficient reason being put forward by the appellant.
The duty imposed upon this Court, under rule 3 of the schedule toOrdinance No. 81 of 1909, in the case of appeals to His Majesty inCouncil, is to direct good and sufficient security to its satisfaction inthe sum fixed, for the duo prosecution of the appeal and for thepayment of all such costs as may become payable to the respondent.
There are, however, further rules framed under the provisions ofsection 5 of the Ordinance to which no reference was made byCounsel in the course of the argument. I personally must admit thattheir existence has not been brought to my notice before. They arccontained in “ the Appellate Procedure (Privy Council) Order, 1921,published in the Gazette of -Tidy 29, 1921. By rule 7 of the Order itis provided that the security to be given by the appellant underrule 3 (a) of the schedule to the Ordinance shall be by deposit of asum of Rs. 3,000 with the Registrar and by hypothecation thereofby bond, or by such other security as the Court shall, on applicationmade after notice to the other side, approve. This no doubtexplains the practice referred to by the Registrar in his report, butin effect it is only a little more definite in one- respect than rule 8 (a)of the schedule, and of course is not wider than that rule. There isthen no general rule laid down as to how security is to be furnished.
No doubt, however, a deposit of money, as provided by rule 7 of theOrder, is generally the most easy and convenient method for bothsides, and'the method which has iu practice been generally adopted.
But this Court obviously cannot say, in face of the rules cited, thatthat method is the only one for giving security.
28/26r 352 )
lfe Silva c/>e tftfva
The words used in rule 3 of the schedule are repeated in rule 7 t>ithe schedule. The latter rule deals with the carrying into execution, of a judgment appealed from on security being given for restitution.That security has likewise to be “ good and sufficient security, tothe satisfaction of the Court." In dealing with an applicationmade under that rule, I find Wood Renton C.*T. and de Sampayo J.in Abeyesekera v. Alahakoon1 allowed the judgment-creditors toexecute his judgment on his giving security by way of a mortgage*of immovable property of the full .value of the judgment-debt eitherby themselves or by a surety on their behalf. It is to be noted,however, that the Order of 1921 contains in the case-of security to begiven under rule 7 of the schedule no rule similar to rule 7 (1) ofthe Order applying to the security to be given under rule 3 of theschedule. In view, however, of the clear provisions of the rules ofthe schedule as to security, I do not think that is a matter of verygreat importance.
This method of furnishing security, it is to be noted, is also providedin the case of appeals .governed by Part VIII. of the Civil ProcedureOrdinance, t*s set out in sections 756 and 757 of the Code. It mightbe noted also that it is the only method of giving security recognizedin the past in the case of appeals from some colonies to the PrivyCouncil, e.g., Victoria, for which reference may be had to the Orderill Council of June 9, I860, which was revoked in 1911 (MelbourneTramivay & Omnibus* Co., Ltd. v. Mayor of Fitzroy 2), and Canada, forwhich reference may be had to the Canada Act, 34 Geo. III. c. 2 s. 35(Grant Potvell and Others v.-Washburn3).
In the face of these authorities it is impossible to uphold the
respondent's objection to the form of the security offered, and I can
find nothing in rule 3 of the schedule or in rule 7 of the Order which
prevents the Court from approving the giving of security in the way
proposed. Applicant, however, must comply with some further
requirements before the security tendered can be accepted. This
application will be referred to the lower Court to satisfy itself as
to the valuation of the property tendered as security. The surety
must file an affidavit to the effect that he is seized and possessed of
the property he tenders as security and lodge a certificate of freedomfrom encumbrances. If the Court below is. then satisfied with thesufficiency of the security, it should so report to this Court withinfourteen days of the receipt of the reference. The usual steps forthe due execution of the bond' by appellant and surety before anotary public, and its due and proper registration must follow,before it be accepted.
Subject to these conditions, the application will be allowed.
Lyall Grant J.—I agree.
* 29 AT. L> It. 413.
(1901) A. c. m.
3 2 Moore 198.
DE SILVA v. DE SILVA