( 366 )
MATTHES V. ROTTAN.C. B., Tangalla, 1,253.
Appeal—Leave under s. 13 of Ordinance No. 12 of 1895•—Refusal of leaveby Commissioner—Rules as to giving security, &c., in appeal.
Where the Commissioner of a Court of Requests has once refusedan application under section 13 of Ordinance No. 12 of 1895 forleave to appeal, he is functus officio as to such refusal, and cannotreconsider it and grant leave.
The rules in the Civil Procedure Code as regards the time ofadmission of petitions of appeal, the time and mode of making the •necessary deposits, and giving security in Courts of Requests, mustbe observed in appeals under Ordinance No. 12 of 1895.
^J^HE facts of the case appear in the judgment.
Baiva, for appellant.
Van Langenberg, for respondent.
2§th May, 1897. Withers, J.—
Respondent’s counsel took certain preliminary objections againstthe appeal from the judgment of the Court below, and I think thoseobjections are entitled to succeed.
The two principal objections were these. In the first place, theaggrieved party applied to the Commissioner for leave to appealfrom the judgment; and his application was expressly disallowed.
That being so, it was urged that the would-be appellant shouldwithin seven days from the date of that refusal have submittedto the Supreme Court a written application by petition for leaveto appeal (see section 13>(2) of Ordinance No. 12 of 1895). Thisadmittedly was not done. It appears, however, from the tecordthat the Commissioner re-considered his former decision and allowedthe petitioner to appeal. He was functus officio, and the applicant’sonly recourse was to the Supreme Court in the way above indicated.
( 367 )
But it seems that arguable questions of law were present in thejudgment from which the aggrieved party desired to appeal, sothat he bad a right to appeal on matters of law—a right expresslyreserved to him by the Ordinance No. 12 of 1895, section 13.
The petition eventually admitted was admitted within the timeallowed by the Code of Civil Procedure.
If all the subsequent conditions required by the Civil ProcedureCode had been fulfilled the appeal would have been in order andopen to no objection.
But it so happens that the security bond was not perfected withinthe time prescribed for Courts of Bequests by the Civil ProcedureCode. Now, section 786 of that Code enacts that “ when a petition“ of appeal has been so received, but the petitioner has failed to“ give the security as is in this section provided, then the petition of“ appeal shall be held to have abated.”
The petition having abated, I do not see how I can entertain theappeal.
Mr. Bawa endeavoured to meet this objection by contendingthat as the Ordinance No. 12 of 1895 had laid down no rules ofprocedure for the conduct of appeals on matters of law “or on“ the admission or rejection of evidence,” or “ with the leave of the“ Commissioner,” appeals from Courts of Requests, where the rightof appeal is expressly reserved by this Ordinance, were governedby no definite rules or conditions. But I have before expressedthe opinion that the amending and extending Ordinance must beread with the governing Ordinance No. 2 of 1889, so far as this canbe done consistently with the provisions of the later Ordinance,and I see nothing inconsistent with it in observing the rules in the .Civil Procedure Code as regards the time of admission of the petitionof appeal and the time and mode of making the deposit and givingthe security in the Court of Bequests. The appeal must be dismissedwith costs.
MATTHES v. ROTTAN