091-NLR-NLR-V-12-SALGADO-v.-PEIRIS.pdf
( 379 )
[Pull Bench.]
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,Mr. Justice Middleton, and Mr. Justice Grenier.
SALGADO v. PEIRIS.D. C., Negombo, 84.
Appeals in insolvency cases—Cannot be stamped after the appealable timehad expired—•Civil Procedure Code, ch. LVJII.
A petition of appeal in insolvency cases must bear a stamp of' Rs. 2-50 at the time it is presented to the Court. The Court hasno power to allow it to be stamped after the time for appealing hasexpired.
T
HE petition of appeal in this case was presented unstampedwithin the appealable time, and when it came to the Supreme
Court, the Registrar drew the attention of the appellant to the factthat the petition was not stamped. The petition was subsequentlystamped, after the appealable time. At the hearing of the appealthe respondent took the objection that the appeal was not perfectedwithin the appealable time. The question was reserved for theconsideration of a Eull Bench.
Tambyah (with him Cooray), for respondent.—The petition ofappeal was not .stamped within the appealable time. Under theStamp Ordinance, Schedule B, Part V., a petition of appeal in aninsolvency ease has to bear a Rs. 2-50 stamp. [Middleton J.—Does the Civil Procedure Code govern appeals in insolvency pro-ceedings ?] Yes; section 754 begins, “ Every appeal to the SupremeCourt.” The ruling in In re Abdul Axis1 is only a ruling on thequestion of security.
Samarawickrama (with him B. F. de Silva), for the appellant.—Even if the Civil Procedure Code governs appeals in insolvencycases, section 755 does not require written petitions of appeal to bestamped at the time they are presented to Court. [Grenier J.—The Secretary cannot receive a-petition of appeal without stamps.]Under section 34 of Ordinance No. 3 of 1890 a petition of appealcould be stamped even after the appealable time. Counsel reliedon In re Abdul Axis.1 i
1909.
November 26
i (1895) 1 N. L. B. 196.
( 380 )
1909.Tambyah, in reply.—-Section 34 of Ordinance No. 3 of 1890 applies
November 96. to Part II. of Schedule B. A petition of appeal is provided for inPart V. of Schedule B.
Cur. adv. volt.
November 25,1909. Hutchinson O.J.—
This is an appeal against an order made under the InsolvencyOrdinance, No. 7 of 1853. The petition of appeal was filed in theDistrict Court in due time, but was not stamped until after the timefor appealing had expired. The question is whether the stampingof such a petition is a condition precedent to its being received.
A stamp duty of Rs. 2‘50 is imposed on petitions of appeal underthe Insolvency Ordinance by Part V. of Schedule B to the StampOrdinance, No. 3 of 1890. There is a provision in section 34 of theStamp Ordinance for stamping certain instruments which do notbear the proper amount of stamp duty, but it does not apply topetitions of appeal. And there is also a provision in section 63 ofthe Insolvency Ordinance for the stamping of documents whichare by that Ordinance required to be stamped, and which have beenthrough mistake or inadvertence filed without a stamp; but thatdoes not apply here, because no stamp is required by that Ordinanceon these petitions of appeal.
By section 6 of the Insolvency Ordinance appeals under thatOrdinance are to be “ subject to such regulations as now exist or shallhereafter be made by any rule or order of the Supreme Court.”There were regulations then in force, but they were expresslyrepealed by the Civil Procedure Code. No rules or orders havebeen made by the Supreme Court affecting these appeals.
In my opinion the effect of the Stamp Ordinance is that a petitionof appeal in insolvency cases must bear a stamp of Rs. 2 • 50 ; thatthe Court is bound not to accept it unless it is so stamped; andthat the Court has no power to allow it to be stamped after the timefor appealing has expired.
Middleton J.—
In this case it is objected preliminarily that no appeal has beenduly presented. The ground for the objection is that the petitionof appeal was not stamped at the time it was presented and receivedby the Secretary of the Court.
It was laid down in 1 N. L. R. 196 by a Full Court judgment thatchapter LVHI. of the Civil Procedure Code did not apply to appealsmade from orders under the Insolvency Estates Ordinance, No. 7 ofDS53. The judgment in that case seems, however, to ignore thedefinition of an action in section 6 of the Civil Procedure Code. Thequestion whether this is not a manifest mistake or oversight (Robot
(. 381 )
». Silva 1)> which entitles this Court- to over-rule that decision, is one 1909.that, I think, should be answered in the affirmative. If so, the November 25.decision in 9S.C. C■ 120 would stand revived, which holds that the MiddletonCivil Procedure Code applies to appeals in insolvency cases.J-
The rules made in 1833 and 1843 were all expressly repealed bythe Civil Procedure Code of 1889, and by section 6 of OrdinanceNo. 7 of 1853 the Judges of the Supreme Court might make rulesfor the better carrying of the Ordinance into effect and regulatingthe practice of the District Courts; but no such rules have beenmade, for the reason probably that it was not deemed necessary todo so.
I think the Legislature impliedly repealed the last paragraph ofsection 6 of Ordinance No. 7 of 1853 by making the Civil Pro-cedure Code applicable by inference to insolvency cases, and wouldhold that chapter LVIII. does govern appeals from the Courts ininsolvency cases.
It is contended that under section 63 of the Insolvency EstatesOrdinance a document such as a petition of appeal might be stampedwith the leave of the Court subsequent to presentment, but theobjection to this contention is that the document mentioned inthat section is a document which by the Ordinance itself is requiredto have a stamp impressed on it, and a petition of appeal is not oneof the documents mentioned in the Ordinance as requiring a stamp.
Again, it is further contended that under section 34 of the StampOrdinance, No. 3 of 1890, the Judge might order the petition ofappeal, as he has done here, to be stamped after it is tendered inthe case, but that section only applies to pleadings or instrumentsspecified in Part II., Schedule B, of the Ordinance, and a petition ofappeal in insolvency proceedings is not one of the instrumentsmentioned in that schedule. In addition to this, that sectionappears to apply to the case of instruments insufficiently stamped,and not to such as are wholly unstamped. The part of the StampOrdinance, No. 3 of 1890, which applies to petitions of appeal inmatters of insolvent estates under Ordinance No. 7 of 1853 isPart V., Miscellaneous. This ordains a stamp fee of Rs. 2*50.
As this stamp fee was not on the petition of appeal at the time itwas presented, I think we must hold that the appeal was not dulypresented according to law, and the preliminary objection mustsucceed.
Grenier J.—
In addition to the reasons given by my Lord and my brotherMiddleton for holding that the stamping of a petition of appeal is acondition precedent to its being received, I may say that in myexperience, both at the Bar and on the Bench of the District Coua£appeals in insolvency cases have been* treated on the same footing1 (1907) 10 ft. L. Jt. 140■
( 382 )
1909. as those in interlocutory matters. The Secretary of the DistrictNovember 96. Court of Colombo has never yet to my knowledge accepted aQ-ITiZLy Petition of appeal in an insolvency case unless it was properlystamped at the time of presentation, according to the provisionscontained in chapter LVX1I. of the Civil Procedure Code.
I have never known of any case where such a petition of appealhas been allowed to be stamped at any time subsequent to the dateof presentation. There has been an uninterrupted practice fornearly twenty years at least, from the time the Civil Procedure Codecame into operation, of stamping petitions of appeal in insolvencycases, and then presenting them to the Court through the Secretary'.It would lead to much confusion and delay if – this' practice was nowaltered, and the appellant given liberty to stamp his. petition ofappeal whenever he liked.
Appeal dismissed.