1 16 Cey. Z. Rec. 228.
386MOSELEY J.—Kandasamyth ewar v. Cassim.
section have no application at all, the appellant is still in time for thereason that the appeal was filed within the fourteen days proper. It wasonly the perfecting of security which was delayed ; but the very necessityfor such security only arises from the requirements of this identicalsection 756. It would be inequitable therefore to apply its provisionsonly in part.
May 10, 1938. Moseley J.—
This appeal was brought by leave of the Supreme Court, which orderedthat the appeal- should be duly perfected within fourteen days of thereceipt of the record by the Court of Requests. It was called for hearingbefore me on March 23, when Counsel for the respondent raised theobjection that the appeal had not been perfected within the stipulatedtime. The circumstances differ in no material fashion from those- whichexisted in the case of Murugesu v. Arumugam and another and whilst Iwas prepared to follow the decision of Fernando J. in that case, I orderedthe point to be argued before a Bench of two Judges for the purpose ofobtaining a ruling that would be binding in future cases.
In this case the record was received by the Court of Requests on July9, 1937. The petition was filed on the 22nd, security was tendered andthe bond filed on the 26th. The appeal was therefore not perfectedwithin the time fixed by the Court. I may observe here that while theterm “perfected” has not, as far as I am aware, received interpretationin law, I think it must be taken to imply that all steps have been taken bythe appellant which are necessary preliminaries to the transmission bythe Court of Requests of the petition of appeal to the Supreme Court.
Counsel for the appellant argued that, since the steps necessary forperfecting the appeal are laid down in section 756 of the Civil ProcedureCode, the computation of time should be as directed in that section.Section 756 applies to appeals received by the Court of first instanceunder section 754 and provides for the computation of time a^ in the lattersection directed. The relevant portion of section 754 is as follows :—“The petition of appeal shall be presented to the Court of firstinstance for this purpose by the p$rty appellant or his proctor withina period of ten days, or where such Court is a Court of Requests, sevendays, from the date when the decree or order appealed against waspronounced, exclusive of the day of that date itself and of the day whenthe petition is presented and of Sundays and public holidays . .. . ”
Counsel for the appellant contended that for “the date when the decreeor order appealed against was pronounced ” there should be substituted“ the date of the receipt of the record in the court of first instance ”, andthat, if the intervening Sundays are excluded, the appellant is in time.
The power of the Supreme Court to grant leave to appeal in such a caseas this is conferred by section 13 (2) of Ordinance No. 12 of 1895. TheSupreme Court may order that a petition of appeal be admitted “uponsuch conditions and within such time as to the Judge shall seem meet ”.The time is clearly within the discretion of the Judge, and unless the orderexpressly refers to section 756, that section does not seem to me to haveany application.
16 C«y. £. Bee. 228.
Saddanatha Kurukkal v. Svbramaviam.- 387
I have referred to the case-of Murugesu v. Arumugam'and another {supra}in which Fernando J. considered the terms of section 7 of the Interpreta-tion Ordinance, No. 21 of 1901, and went on to say “When this Courtordered the petition of appeal to be perfected within 14 days, no con-sideration was taken of the fact that there may be Sundays or holidaysintervening, and it must be presumed that all days whether Sundays orholidays or not were to be reckoned within that period. In other words,I presume that in fixing that period the Court had due regard to theprovision of section 7 of Ordinance No. 21 of 1901 ”.
With those observations I respectfully agree. The appeal has not, inmy view, been perfected in the time allowed by the Court and musttherefore be rejected.‘
We were invited by Counsel for the appellant to exercise the powergiven to this Court by section 2 of Ordinance No. 42 of 1921 and grantrelief accordingly. The section, however, only applies to cases of non-compliance with the provisions of section 756. – I have already expressedthe opinion that the order admitting the appeal has no reference to thatsection. We have not, therefore, the power to grant the relief asked,even if it should appear to be a case meriting consideration.
The respondent will have his costs of the appeal.
Maabtensz J.—I agree.
* Appeal dismissed.