PALANIAPPA CHETTIAR et al. v. MERCANTILE BANK

030-NLR-NLR-V-43-PALANIAPPA-CHETTIAR-et-al.-v.-MERCANTILE-BANK.pdf


Palaniappa Chettiar*v. Mercantile Bank.
121
1942Present : Howard C.J. and Hearne J.
PALANIAPPA CHETTIAR et al. v. MERCANTILE BANK.
113—D. C. (Inry.j Colombo, 49,541.
Appeal—Application for typewritten copies—Failure to comply with Rules—Application made to Secretary of District Court—Regularity—Mattersnot fundamental—Appeal does not abate—Civil Appellate Rules 2 (1)and 4 (1938).
Where an application for typewritten copies made by an appellantfailed to comply with rule 2 O) of the Civil Appellate Rules, 1933,inasmuch as (1) it was addressed to the Secretary of the District Courtand not to the District Judge, (2) it did not state therein whether copiesof the whole or portions only and, if so, what portions of the record werenecessary for the decision of the appeal, (3) it did not state the value ofthe subject-matter and nature of the action or proceedings in which theappeal was preferred.
Held, with regard to the first ground, that an application made to theSecretary may be deemed an application to the District Judge.
Where the application was made the subject of a Journal entry itmust be regarded as having been accepted by the District Judge, althoughthe entry did not bear the initials of the Judge.
Held, further, that failure to comply with matters specified in grounds2 and 3, which are not fundamental, does not amount to a substantialdefault, which would abate the appeal.
T
HIS was an application to"revise an order of the District Judge ofColombo.
The plaintiffs filed a petition of appeal on September 8, 1941, againstan order of the District Judge made the same day allowing the defendantsto execute a decree of the Supreme Court dated May 10, 1938.
On November 28, 1941, on a motion made by the defendants the DistrictCourt declared that the appeal of the plaintiffs had abated owing totheir failure to comply with the requirements of the Civil Appellate Rulesin the application for typewritten copies.
H. V. Perera, K.C. (with him S. Nadesan and Walter Jayawardene),for the petitioners in the application and the appellants in the appeal.—The question is one of the interpretation of rule 4 (a) of the Civil AppellateRules, 1938 (Vol. 3 of 1940 Supplementary Legislation, p. 6). Theappeal cannot be said to have abated. The application for typewrittencopies, under rule 2, was originally accepted by the District Judge. Therespondents later took the objection that the application should havestated whether the whole or a portion only of the record was requiredfor the decision of the appeal and that the value of the subject-matterof the action should have been stated. One has to distinguish the main,substantial act from the incidental requirements. The act of makingthe application and the act of stating certain things in that applicationare to be distinguished. The time within which and the form in whichthe application should be made are, no doubt, important and essentialfor the making of the application. The statement in such application
122
Palaniappa Chettiar v. Mercantile Bank.
whether copies of the whole or portions only of the record are necessaryis only an incidental matter and can be subsequently remedied. See themeaning of “ default ” in the judgment of Darling J. in O’Connor andOuld v. Ralston'. That dictum has been followed in Murugappah Chettiaret al v. Ramanathan Chettiar 7 and Subramaniampillai v. Wickremasekereet al.3
Another objection was taken in the District Court, that the applicationfor typewritten copies was addressed to the Secretary of the DistrictCourt and not to the District Judge. For the purpose of . the CivilAppellate Rules, the District Judge acts only as a ministerial officer andcan, therefore, appoint an agent.
The Civil Appellate Rules were made to regulate the mode of prosecutingappeals. They cannot in any way take away the fundamental right ofappeal provided by the substantive law. To provide for an abatementby a mere rule would be ultra vires.
In regard to the main appeal, there can be only one executable decree.Subsequent arrangements between the parties do not acquire the forceof an executable decree. See the judgment of Soertsz J. in Hunter et al.v. de Silva. '
The decree sought to be executed should accompany and be annexedto the application for execution. In the present case no stamped copyof the decree of 1937 was so annexed. See Wijesekere v. de Silva'.
N.Nadarajah (with him E. B. Wickremanayake and H. A. Koatte-goda), for the 4th-16th defendants, respondents.—Rule 4 definitelypenalizes a failure to make an application “ in accordance with therequirements ”. The only requirements are those mentioned in rule 2.The present rules, unlike those of T913, do not provide for any relief.Putwatta v. Nugawala" and Perera v. Sinno7, decided under the earlierrules, are helpful. For effect of the expression “ shall be held to haveabated ”, see Kangany v. Ramasamy Rajah3.
The Secretary and the District Judge cannot change places. Theyperform separate functions. “See e.g., rule 2 (2) and rule 2 (1). TheSecretary, therefore, has no locus standi in the present case.
The provision in rule 4 for abatement is not ultra vires. The CivilAppellate rules are framed under section 49 of the Courts Ordinance.This Court has already held that a District Judge need not forward anappeal where there is failure to comply with the Civil Appellate Rules—214 D. C. Negombo, 11,463°.
The amendment of the decree by the Supreme Court, on the consentof the parties, supersedes , the earlier decree of the District Court.- Meenatchy Atchy v. Palaniappa Chettiar10 is directly in point.
H. V. Perera, K.C., replied.
Cur. adv. vult.
> (1920)3 K. B. 451 at 456.
*(1937) 39 X. L. R. 231.
» (1941) 42 X. L. R. 573.
(1939) 41 X. L. R. 110.
<• (1934) 14 C. L. Rec. 105.
(1913) 5 Bui. X. C. 34.’ (1915) 3 Bal. X. C. 40.
(1918) 21 X. L. R. 106.
5. C. Minutes of August 29. 1941.
{1941) 42 N. L. B. 333.
HOWARD C.J.—Palaniappa Chettiar v. Mercantile Bank.
123
January 13, 1942. Howard C.J.—
The plaintiffs in this case on September 8, 1941, filed a petition ofappeal against an order of the District Court of Colombo made the sameday allowing the defendants to execute a decree of the Supreme Courtdated May 10, 1938. On November 28, 1941, on a motion made by thedefendants the District Court declared that the appeal of the plaintiffshad abated on account of their failure to comply with the requirementsof the Civil Appellate Rules in the application for typewritten copies.The plaintiffs were further ordered to pay the costs of the inquiry. Theplaintiffs have applied by way of revision for the setting aside of theorder of November 28, 1941. This Court has considered both the appli-cation by way of revision from the order of November 28, 1941, and theappeal against the order of September 8, 1941, allowing execution.
A preliminary objection to the hearing of the application in revisionwas heard by this Court on December 9, 1941. Judgment was deliveredon December 11, 1941, overruling this objection.
The declaration of the District Court holding that the appeal hadabated was made on the ground that the application for typewrittencopies made by the appellant’s Proctor on September 12, 1941, failed tocomply with section 2 (1) of the Civil Appellate Rules, 1938, inasmuch as(1) it was addressed to the Secretary of the District Court and not to theDistrict Judge, (2) it did not state therein whether copies of the wholeor portions only and, if so, of what portions of the record were necessaryfor the decision of the appeal, (3) it did not state the value of the subject-matter and nature of the action or proceedings in which the appeal waspreferred. The District Judge held that as the application failed tocomply with any of the requirements of section 2' (1), by section 4 of theRules which was of a peremptory character the appeal must be deemed tohave abated, and made declaration accordingly.
The question as to whether the District Judge was empowered to makesuch a declaration is academic inasmuch as it is now for this Court todecide whether in fact the appeal has abated. Sections 2 (1) and 4 ofthe rules are worded as follows : —
“ 2.(1) The appellant shall apply in writing to the District Judge
or the Commissioner of Requests, as the case may be, within thetime limited by law for the completion, of the security for costs ofappeal, for typewritten copies of the record, stating in such appli- .cation whether copies of the *whole or portions only, if so, of whatportions of the. record, are necessary for the decision of the appeal.Every such application – shall state the value of the subject-matterand the nature of the action or proceedings in which the appeal ispreferred, and shall be accompanied by the fees prescribed in theschedule hereto.
Provided that where no time is fixed by law for the furnishing ofsecurity for costs of appeal, the appellant shall apply for typewrittencopies within one month of the date of preferring his appeal. ”
“ 4.(a) Where the appellant fails to make application for type-
‘written copies in accordance with the requirements of these rules; or
124
HOWARD C.J.—Palaniappa Chetttar v. Mercantile Bank.
fails to pay the additional fees due under rule 2, sub-rule (4),within one month from the date of the order requiring him to do so,or, before the expiry of the time allowed by rule 2, sub-rule (7) .whicheveris later, the appeal shall be deemed to have abated. ”
It was conceded by the appellants that their application for typewrittencopies failed to comply with the Rule 2 (1) as specified in (1) , (2), and (3)above mentioned. The application was made the subject of a Journalentry on September 12, 1941. It is true that this entry does not bearthe initials of the District Judge. On the other hand, I am of opinionthat for the purposes of this provision of the rules an application madeto the Secretary may be deemed an application to the District Judge.Moreover, it must be regarded as having been accepted by the DistrictJudge inasmuch as the Journal is his record of the proceedings.
With regard to the matters specified in (2) and (3), Mr Perera on behalfof the applicants contended that a distinction must be drawn betweenthe act which they were required by the rule to perform and acts incidentalthereto. In this connection we were referred to section 4 of the BusinessNames Ordinance and the judgment of Darling J., in O’Connor andOuld v. Ralston'. In this case the question for consideration was whetherthe plaintiffs by describing themselves as accountants, which was amisdescription of their business, made “ default ” in furnishing a statementof particulars within the meaning of section 8 (1) of the Registration ofBusiness Names Act, 1916. This provision is worded similarly to section4(1) of the Ceylon Ordinance. Darling J., though not basing his
decision on this point, expressed the opinion that the word “ default ”in the subsection means not furnishing any particulars at all and doesnot mean furnishing insufficient particulars. This dictum of Darling J.was cited in the judgment of Hearne J. in the case of MurugappahChettiar v. Ramanathan Chettiar where it was held that on a return undersection 4 of the Registration of Business Names Ordinance an erroneousstatement with regard to the residence of a partner would not aloneamount to a default within the meaning of section 9 of the Ordinance.In Subramaniampillai v. Wickremasekere where a firm in registering itsbusiness under the Business Names Ordinance failed to furnish the namesof each of its individual partners, it was held that there had been anomission to give particulars, in regard to a material, and fundamentalmatter. There was, therefore, a substantial failure to comply with therequirements of the Ordinance as to amount to a default within themeaning of section 9. In Putwatte v. Nugawela reported in 5Balasingham’s Notes of Cases, p. 34, Wood-Renton A.C.J., referred tothe Proctor’s duty to give directions to the Registrar as to what shouldbe included in the brief. It is an authority for the proposition that ifin the performance of that duty material portions of the brief remainuncopied the appellant runs the risk of the appeal being dismissed. It isnot an authority for the proposition that in such circumstances the appealcannot be heard or has lapsed. In Perera v. Sinno ' the same Judge heldthat in the absence of special circumstances, the appeal must be dismissed
■ (1920) 3 K. B. at p. 45G.* (1937) 39 N. L. R. 231.
(1941) 42 -Y. L. R. 573.
3 Balasinghxim's Notes of Cases, p. 40
HOWARD CJ.—Palaniappa Chettiar v. Mercantile Bank.128
when under the Civil Appellate Rules, 1913, no application for typewrittencopies ■ was made within the term prescribed. Kangany v. RamasamyRajah' was a case decided under section 756 of the Civil Procedure Code.In my opinion the last three cases do not touch the point at issue. Whatwe have to decide is whether the failure to comply with the mattersspecified in (2) and (3) above are fundamental. In my opinion they arenot and hence there has not been a substantial default. The applicationin revision is, in these circumstances, allowed and the order of November28. 1941. set aside. The applicants are allowed their costs in the DistrictCourt on the hearing of the motion for the declaration, and in this Courton December 9, 1941.
The appellant’s appeal against the District Judge’s order of September8, 1941, allowing the defendants to execute the decree of the SupremeCourt dated May 10, 1938, is based on the ground that there was nodecree made by the Supreme Court on that date and that the only decreeof which execution could be ordered was that of May 18, 1937. Thehistory of this case is as follows : On December 6, 1935, a mortgagedecree was entered in the District Court in favour of the respondents.This decree was affirmed by the Supreme Court on May 18, 1937.Application was then made by the appellants for leave to appeal to thePrivy Council. At the same time the respondents applied for executionof the mortgage decree. On December 16. 1937, by consent the partiesentered into an agreement with regard to the execution of the mortgagedecree of May 18. 1937. The terms of this settlement included thedismissal of the respective applications for leave to appeal to the PrivyCouncil and for execution of the decree of May 18, 1937. On May 10,1938. the case was mentioned in a Court constituted by Maartensz andKoch JJ.. and judgment was as follows : —
“ Maartensz J.—
Of consent application for leave to appeal to the Privy Council isrefused with costs.
Application for the appointment of a Receiver is refused withoutcosts.
Application for execution of the decree made to this Courtpending the appeal to the Privy Council is refused without costs.
Appeal No. 47 filed by the plain tiff s-appeilants is dismissedwithout costs.
Decree of the District Court as affirmed by this Court is to bevaried in terms of the consent motions dated December 16, 1937, andApril 29, 1938.
Draft decree to be submitted to Counsel before it is signed by theRegistrar.
fCSgd.) L. M. Maartensz,! Puisne Justice.
I agree')
j (Sgd.) F. H. B. Koch,
■ ^ Puisne Justice.
43/12
' (191X) 21 -V. L. R. 100.
126
HOWARD C.J.—Palaniappa Chettiar v. Mercantile Bank.
Decree in terms of this judgment was entered on the same day. OnDecember 19, 1939, applicaSon was made by the defendants for executionagainst the plaintiffs of the decree of December 16, 1935, and varied ofconsent of parties as per decree of the Supreme Court dated May 10, 1938.On September 8, 1941, this application was allowed with costs.
It is contended by Counsel for the appellants that the only decree ofthe Court that is executable is that of May 18, 1937. It is suggested alsothat Maartensz and Koch JJ- had no power to vary the decree of May18, 1937. and that, if they did so, such order was not executable. Weare unable to accept this contention. The order of the Supreme Courtmade on May 10, 1938, purports to be a decree of the Court and has insubsequent proceedings been treated as such. Thus in proceedings beforeSoertsz and Hearne JJ., on August 22, 1940, this order was treated as adecree of the Supreme Court. Again on February 13, 1941, in proceed-ings before Hearne and Wijeyewardene JJ., the order of May 10, 1938,was assumed to have varied the previous decree. Moreover to thejudgment of Maartensz J.. there is appended a note to the effect that the.draft decree is to be submitted to Counsel before it is signed by theRegistrar. In these circumstances it is impossible to contend that theorder made on May 10, 1938, is not a decree. Its validity is not, in myopinion, open to question. In this connection I am of opinion that thecases of Wijeselcere v. de Silva1 and Hunter v. de Silva’ have no relevanceIn the former case it was held that an application for the execution of adecree should not be allowed until the formal decree had been enteredin the case and the Court is satisfied that the applicant had obtained acopy of the decree. In the present case formal decree had been entered.In Hunter v. de Silva (supra) where after decree was entered in an actionthe defendants entered into an agreement with the plaintiffs to pay a rateof interest higher than that given by the decree, and where the plaintiffsapplied to have the decree altered and the adjustment certified undersection 349 of the Civil Procedure Code, it was held that the decree couldnot be altered to give effect to the agreement; the agreement may gobeyond the terms of the decree but the Court will recognize andcertify only so much of the agreement as adjusts* the decree in whole orin part. In that case the agreement was not made a decree of the Court.There was nfe substitution of a new decree for the original decree as in thiscase. On the fg^pr hand, the case oi rMeenatchy Atchy v. PalaniappaChettiar1 is very much in point. In -this case a decree entered inJanuary, 1926, was adjusted by means of a consent motion filed to theeffect that “ the date of the decree in this case should be reckoned asfrom this date”. It was held (1) that the agreement incorporated in theorder substituted a new decree for the original decree and that the dategiven in the agreement must be regarded as the date of the decree for thepurpose of section 337 (1) of the Civil Procedure Code, and (2) that theagreement may be regarded as “ a subsequent order directing the pay-ment of money to be made at a “ specified date ” within the meaning ofsection~337 (1) (b) of the Ciyil Procedure. Code. Keuneman J., in hisjudgment in this case stated ’that, to establish his point, the respondent
1 14 C. L. Rec. 107..1 (1930) 41 -Y. L. R. 110.
3 42 S’. L. R. 333.
HOWARD C.J.—Palaniappa Chetty v. Mercantile Bank.
127
must show that the original decree was actually superseded by thenew arrangement and that it was not merely an intermediate arrange-ment for the payment of the original decree. In this case also therespondents have succeeded in establishing a similar state of things.
The point was also taken that as a reference was made to the originaldecree, the latter should have been attached to the application for execution.This point is without substance. In my opinion the original decree wassuperseded by that of May 10, 1938. This decree was executable.
The appeal in my opinion fails and must be dismissed with costs.
Hearne J.—I agree.
Application allowed.Appeal .dismissed.