Selvaguru v. Thyalpager.
1948Present:Jayetileke and Windham, JJ.SELVAGURU, Petitioner, and THYALPAGER et al., Respondents.
S. C. 130—Application fob Appboval of Secttbity tekdebed reAppeal to Privy Council in S. C. 602/78 (Inty.) D. C.,Jaffna, No. 277.
Privy Council—Final leave to appeal—Deposit oj security—Hypothecation of im-movable properly—Notice to other side—Application far approval—Appeals(Privy Council) Ordinance, Chapter S5—Pule 3 (a) of Schedule—AppellateProcedure (Privy Council) Order—Rule 7 (1).
Whore conditional leave to appeal to the Privy Council is granted on theusual conditions the applicant need not deposit the security in cash. Where,however, the applicant seeks to give security by the hypothecation of im-movable property, he must make his application to Court for the approval of suchsecurity within a month of the grant of conditional leave and such applicationmust be with notice to the other side. Where no such notice has been giventhere is no sufficient compliance with Rule 7 (1) of the Appellate Procedure(Privy Council) Order. The Supreme Court has no power to extend the periodof time unless an application for such extension is made within the month.
Application for approval of security tendered regarding an appealto the Privy Council.
H. W. Thambiah, with H. Wanigatunga, for the respondent.— Thepetitioner has been granted conditional leave to appeal to the PrivyCouncil “ on the usual conditions ”. The order of the Supreme Court isthat security of three thousand rupees be given by a deposit of money.[Jayetileke J.—Can the order of the Supreme Court “ allowed onusual conditions ” be interpreted to mean that cash seourity must begiven ?]
The order of the Supreme Court as it stands is that cash security shouldbe given. The usual praotioe has been to give cash seourity. It is inthe discretion of this Court to refuse any other kind of security. Butunder rule 7 (1) of the Appellate Procedure (Privy Council) order, 1921,made under section 4 (I) of the Appeals (Privy Council) Ordinance,No. 31 of 1909, Cap. 85, this court could have ordered other security.But under the same rule 7 (1) for this oourt to order other security theremust be a speoial application made with notice to the other side for theapproval of the security tendered.
The application for approval of security, the notice to the other sideand the actual approval of the security by the Court must all be obtainedwithin one month or within suoh extended time as has been obtainedby application to Court made before the expiration of that period of onemonth from the date of the allowing of conditional leave to appeal.Rule 3 (1) of Schedule to the Appeals (Privy Council) Ordinance makesit perfectly clear that security must be complete within one month or,if extended, within the extended period of time.
In this case only an application for accepting the seourity was madewithin one month. No notice was given to us within one month, andsecurity has not yet been approved by this Court. Further, there is not
WINDHAM J.—Selvaguru v. Thyalpager.
even an application for extension within one month. Court has nopower to grant any extension of time now as the month has expired,and the requirements of the main Ordinanoe (Chap. 85} and particularlyof rule 3 (1) of Schedule to Chapter 85 are peremptory. See KadijaTJmma v. Mohamed Sulaiman 1. Under rule 18 of Apoellate Procedure(Privy Council) Order, 1921, extension of time may be granted for periodsof time prescribed by that order, but rule 18 does not apply to periodsprescribed by the main Ordinance (Chap. 85) or its Schedule.
Further, the security tendered is bad. One of the sureties is a woman.The Senatzts Consultum Velleianum and Lex authontica si qua mulier stillapply to persons subject to Thesawalamai. Though these benefits wereabrogated by seotion 29 of Married Women’s Property Ordinance thatOrdinance itself does not apply to persons subject to Thesawalamai,under section 3(2). Persons subject to Thesawalamai are governed by theRoman Dutch Law where there is an omission in the Thesawalamai. SeePut-hathamby v. Mailvakanam 2. The benefit of the Senatus Consultummay be waived but the waiver must be clearly expressed—Goonetillekev.Abeyagaonesekera 3.
S. J. V. Chelvanayagam, K.C., with C. Shanmuganayagam, for thepetitioner, appellant.—What is required by rule 3 (1) of the Schedule tothe Appeals (Privy Counoil) Ordinance is that good and sufficient securitybe given within one month from the grant of conditional leave to appeal.This Court has no power to order only cash security. The appellanthas the right to give other security so long as the Court approves it.The other side must be noticed and the approval of the Court obtained.It is not contemplated that the notice to the other side or the approvalof Court should be obtained within one month. Suoh a view would bevery impracticable. It may not be possible either to give notice or getthe approval of Court within a month despite all reasonable diligenceon the part of the appellant. All that is required by Rule 3 (1) is that thesecurity should be tendered within one month. If the security is approvedthe appeal proceeds ; if it is not approved by Court, the appeal cannot beproceeded with. Kadija Umma v. Mohamed Sulaiman (supra) has noapplication because no security at all was given in that case. Seouritymay be other than cash. See de Silva v. de Silva*. Security in thiscase is good and sufficient. Senatus Consultum Velleianum and Lexauthentira si qua mulier never applied to persons subject to Thesawalamai.
Cur. adv. vult.
May 14, 1948. Windham J.-—
The petitioner applies for final leave to appeal to the Privy Counoil;and for approval of the security tendered by him to the Court on February28, 1948, in pursuance, or purported pursuance, of the order of theCourt dated January 30, 1948, granting conditional leave to appeal“on the usual conditions”. The respondents have raised preliminaryobjections to the application, the main objection being that the applicanthas failed within one month of the application for provisional leave toappeal (i.e., within one month of January 30, 1948), to enter into good
1 (1939) 40 N.L.R. 265 at 272.* (1897) 3 N.L.R. 42.
(1914) 17 N.L.R. 368.
(1927) .28 N.L.R. 350.
WINDHAM J.—Selvaguru v. Thyalpager.
and sufficient security to the satisfaction of the Court, as required byrule 3 (a) of the Schedule to the Appeals. (Privy Council) Ordinance(Cap. 85).
On January 30, 1948, the applicant applied for and obtained conditionalleave to appeal to the Privy Council from a judgment of this Court datedDecember 10, 1947. Leave to appeal was granted “ on the usual condi-tionsThe applicant did not follow the usual course of depositing
with the Registrar Rs. 3,000 in cash ; but upon February 28, 1948,he mortgaged and hypothecated to the Registrar of the Supreme Courtcertain immovable property by a security bond of that date, at the sametime filing a motion in the Supreme Court tendering this security andmoving “ that it be accepted ”. He thereupon sent a telegram andregistered letter to the respondents informing them of what he had done.
The first point argued for the respondents is that the only course opento the applicant which would comply with this Court's order of January'30, granting conditional leave to appeal “on the usual conditions”,was for him to have deposited Rs. 3,000 security in cash. I do not agreewith this contention. The relevant provisions of the law are the following :Rule 3 (a) provides as follows :—
“ 3. Leave to appeal under rule 1 shall only be granted by theCourt in the first instance—
(a) upon the condition of the appellant within a period of one month,from the date of the hearing of the application for leave toappeal, unless the court shall, on the ground of the absenceof the appellant from the Island or for some other specialcause, on application made to it, before the expiration ofsuch period have granted an extension thereof, entering intogood and sufficient security, to the satisfaction of the court,in a sum not exceeding three thousand rupees for the dueprosecution of the appeal, …. ”
Rule 7 (1) of the Appellate Procedure (Privy Council) Order, 1921provides that the security to be given under the above rule 3 (a) of theSchedule “ shall be by deposit of a sum of Rs. 3,000 with the Registrarand hypothecation thereof by bond or by such other security as theCourt shall, on application made afternotice to the other side, approve ”.
These two rules, 3 (a) and 7 (1), though embodied in separate pieces oflegislation, are to be read as supplementary each to the other, sincesection 3 of the Appeals (Privy Council) Ordinance (Cap. 85) provides thatthe rights of parties seeking to appeal to the Privy Council shall hesubject to and regulated by (a) the rules set out in the Schedule (whichinclude rule 3 (a) above) and (b) such general rules of court as may bemade by the Judges of the Supreme Cotut in exercise of their powersunder section 4 of the Ordinance (which include rule 7 (1) above). Andthe joint effect of these two rules, as I see it, is that a party seeking leaveto appeal to the Privy Council has a right, upon conditional leave beinggranted, either to deposit Rs. 3,000 in cash as provided for in the firstpart of rule-? (1), or, should he prefer to adopt the alternative and lessusual procedure, to furnish such other security as the court shall, on appli-cation made after notice to'the other side, approved. The applicant was
WINDHAM J.—Selvaguru v. Thyalpager.
rightly given this choice in the decree to which the Court’s order ofFebruary 28 was reduced by the Registrar. That this alternative courseis open to an applicant was confirmed in de Silva v. de Silva1.
But, whichever alternative course is adopted, the requirements ofrule 3 (a) of the Schedule still have to be satisfied, namely, that theapplicant must, within a period of one month from the date of applicationfor conditional leave to appeal, enter into this security to the satisfactionof the court, unless before the expiration of that month he shall haveapplied for and obtained an extension of time. Now in the present caseit is undisputed that, before the expiry of one month .from January 30,the applicant neither applied for nor obtained an extension of timeunder rule 3 (a) or at all. What the applicant contends, however, is thatin tendering his security and making his application upon February 28,(i.e., within the month) he had done all that rule 3 (o) required to be donewithin the month. But I do not think this contention can succeed.True, I do not think that, upon a proper and reasonable construction ofrule 3 (a), an applicant is required to obtain the approval of the Courtto his security within the month, as has been argued for the respondents.For the hearing of his application, or the Court’s decision upon it (ifreserved) might be delayed until after the expiry of the month, throughno fault of his, and even a decision upon an application for extensionof the time under section 3 (a) itself might be similarly delayed. ButI do hold the combined effect of rules 3 (a) and 7 (1) to be that, if anapplicant chooses to tender some “ other security ” under rule 7 (1), as thepresent applicant did, then his “ application made after notice to the otherside ” for approval of such security, which rule 7 (1) requires, must be somade within the month prescribed in rule 3 (1), unless application forextension of that month is made under section 3 (1) before the expiryof' that month. That is to say, the application for approval must,within the month, have been made after notice to the other side. Thisthe applicant failed to do. It was only on March 15 that he belatedlygave to the respondents the notice required by section 7 (1). Nor, as Ihave said, did he within the month apply under section 3 (1) to extendthe time so as to enable him, within the extended time, to remedy hisomission by giving notice to the other side and then renewing his appli-cation for approval.
Now had rule 7 (1) been the only rule infringed by this failure to applyfor approval after notifying the respondents within the month, then theposition might perhaps have been remedied by this Court in exercise ofits powers of extension of time under rule 18 of the Appellate Procedure(Privy Council) Order, 1921, since rule 7 (1) is one of those Rules. Butrule 18 applies only to periods of time prescribed in those Rules, and notto periods prescribed in the Rules set out in the Schedule to the Appeals(Privy Council) Ordinance, in which rule 3 (a) appears. This Courtwould therefore have no power under rule 18 to extend the month’stime limit prescribed under rule 3 (o). The only way to extend thatmonth would have been upon an application lodged within the monthunder rule 3 (a) itself, which, as I have said, was not made. For therules set out in the Schedule contain no other power to extend the time
1 (1927) 28 N-L.R. 350..
Podimenika v. Anthony Appuhamy
limit prescribed, in role 3 (a) beyond the power contained in rule 3 (a)itself. That this Court has no other power to extend this month’s timelimit was confirmed by a full bench in Kadija Umma v. Mohamed Sulai-man1 where it was held at page 273 that “ the period of time fixed,has now expired and no application for extension of time was made orallowed before that period expired. If we give relief now it will be incontravention of rule 3 (a) and I am of opinion that we have no power todo so ”.
On these grounds I hold that the condition prescribed in rule 3 (a), readin conjunction with rule 7 (l),was not fulfilled by the applicant, and thatthis preliminary objection must accordingly succeed ; it therefore becomesunnecessary to consider whether the security tendered was satisfactory.
The application is dismissed with costs.
Jayettleke J.—I agree.