336 JAYEWARDENE A,J.—Wijeyesekere v. Commissioner of Stamps.
Peries v. Saravanantuttuwhere Drieberg J. held that such a recognizanceas we have here was liable to duty. He deals with the provisions ofsection 4 of the Stamp Ordinance in the course of his judgment.
Appellant urges that that decision is not binding on this Court, that thelearned Judge was assuming a jurisdiction which he did not have, as hewas sitting as an election petition Judge whose powers were strictly limitedby the terms of Part VI. of the Order in Council, and lastly, if he wassitting as a Judge of the Supreme Court and not as an election petitionJudge, he had no jurisdiction to hear the matter sitting alone. Theappellant is correct on the first point, but with regard to that I can onlysay I have come to the same conclusion as the learned Judge after hearingthe argument before us. The second and third points, therefore, it is notnecessary to decide, since I am satisfied the instrument is liable to duty.I might, however, point out that under the Order in Council all inter-locutory matters in connection with an election petition may be dealtwith and decided by any Judge of the Supreme Court, unless otherwiseordered by the Chief Justice.
The appeal fails, and must be dismissed with costs.
Jayewardene A.J.—
I agree. I would add that the same objection was taken in the petitionre the By-election for the Northern Province". Ennis A.C.J. after con-sidering the effect of several sections of the Stamp Ordinance said—
“ The present recognizance is an undertaking to pay the costs andcharges of the petition in a certain event, and it purports tobe a recognizance with sureties, as such it would seem thatit should be stamped.”
The learned Judge, however, did not decide the question because hedesired to hear the Attorney-General and because he was upholdinganother objection. I agree with Drieberg J. in Peries v. Saravanamuttua,where the matter has been carefully considered, that there is no exemptionfrom stamp duty in the case of an instrument in .favour of the Govern-ment where the duty is not payable by the Government, and in the caseof a bond under section 28 of the Stamp Ordinance the duty is payableby-the person executing the bond.
Appeal dismissed.
*33 N. L. R. 220.
2 33 N. L. R. ~'S7.
J 33 N. L. R. 229.