ABRAHAMS C.J.—Hafeel v.' Ibrahim et al.
1937Present: Abrahams CJ.
HAFEEL v. IBRAHIM et al.
14—C. R. Colombo, 21 #77.
Appeal—Order to perfect appeal within fourteen days-—Computation of time—
Dies non—Relief under Civil Procedure Code, s. 756.
Where the Supreme Court ordered an appeal to be perfected withinfourteen days of a given date, Sundays and public holidays are notexcluded in reckoning the period.
Where the appeal has not been perfected in time, the appellant is notentitled to relief under section 756 of the Civil Procedure Code.
PPEAL from a judgment of the Commissioner of Requests, Colombo.
A. Rajapakse (with him M. I. M. Haniffa), for plaintiffs, appellants.
N.E. Weerasooria (with him H. A. Wijemanne), for defendant,respondent.
December 3, 1937. Abrahams C.J.—
A preliminary objection has been taken on this appeal. It is submittedthat the appeal has not been perfected within the fourteen days directedby the Supreme Court in giving leave to appeal. The fourteen days wereto be calculated from the date when the record was received by the Courtof Requests from which the appeal was preferred.
The record was received by the Court of Requests on December 22,
It has recently been held by Fernando J. (then Fernando A.J.) ina case which has not yet, I think, found its way into the reports, that whenthe Court orders an appeal to be perfected within fourteen days from agiven date those fourteen days are calendar days, that is to say, theyinclude dies non. I am not asked to differ from that decision. Therefore,the fourteen days would have expired on January 5, 1937. Rs. 26 wasrequired as security. It was deposited in the Kachcheri on December 23,but the bond was not signed until January 8. Therefore the appeal wasnot perfected as the fourteen days had expired.
I am urged by the appellants to exercise indulgence by virtue of thepowers conferred upon the Supreme Court by the amending provisionsto section 756 of the Civil Procedure Code. It is pleaded that the proctorfor the appellants did not sign the security bond on account of the closingof the Court' of Requests Office for the Christmas vacation, i.e., fromDecember 24, 1936, to January 3, 1937, inclusive, and that he was underthe impression that dies non. were excluded from the calculation of thefourteen days ordered by the Supreme Court.
Counsel on the other side submits that the appellants are not entitledto any indulgence. He says first of all that the excuse of the appellantsis not supported as it should be by an affidavit setting out the facts uponwhich the indulgence is requested. He also argues that in any eventthis 4s not a case for any indulgence in view of the fact that there has beena serious omission in the procedure. The Rs. 26 which was deposited wasnot secured for costs because it had not been hypothecated by the requisite
MOSELEY J.—Kowla Umma v. Mohideen.
bond and therefore the appellants did not carry out their duty, and itcannot be said that because no prejudice was ultimately caused to therespondent the Court should exercise any indulgence. I am referred insupport of this contention to the case of Silva v. GooneseTcera whereFisher C.J. said that he did not think that the additional paragraph tosection 756 could be held to apply to cases where there has been a sub-stantial non-compliance with the provisions of the section. It applied,he thought, to more or less trivial omissions where it may be said thatalthough the strict letter of the law has not been complied with the partyseeking relief has been reasonably prompt and exact in taking the necessarysteps. I do not see how this can be regarded, as a trivial omission, andfurther it is distinctly open to argument as to whether the excuse givenby the appellant even if vaild, is one to'which I can pay due regard.
I therefore, allow the objection and dismiss the appeal with costs.
HAFEEL v. IBRAHIM et al