045-NLR-NLR-V-52-VANDER-POORTEN-Petitioner-and-VANDER-POORTEN-et-al.-Respondents.pdf
.1930Present: Nagalingam J. and PulIeJ.VANDER POORTEN, Petitioner, and VAKDEE POORTEN et al.,
Respondents
JS. C. 444—Application to tvithdraw the sum of Ms. 3,000 deposited withthe Registrar of the Supreme Court in S. C. 79—D. G. (Inty.)
Colombo, 6,889 T.
t
Privy Council—Withdrawal of an appeal—Application made thereafter to withdrawsum deposited as security—Proper procedure—Judicial Committee Buies,Buie 32.1
The Begistrar of the Privy Council notified the' Begistrar of the SupremeCourt that an appeal to His Majesty in Council had been withdrawn and,therefore, by virtue of Buie 39 of the Judicial Committee Buies, stood dis-missed. He further requested that steps be taken in the Supreme Court to“ terminate the proceedings
Held, that, before the appellant could withdraw the sum deposited by Mmwith the Begistrar of the Supreme Court by way of security, he must securean order of the Supreme Court terminating the proceedings.
^ I ^HIS was an application to withdraw the sum of Rs. 3,000 depositedwith the Registrar of the Supreme Court, in an appeal to His Majestyan Council.
H. Aluwihare, for the petitioner.
Li. G. Weeramantry, for the 2nd to 6th respondents.
Cur. adv. vult.
■October 18, 1950. Nagaldegam J.—
This is an application by the appellant who had obtained final leave-to appeal to His Majesty the King in Council to have refunded to him“the sum of Rs. 3,000 deposited by him with the Registrar of this Courtlay way of security as a condition precedent to his being granted finalleave to appeal. The appellant in pursuance of the- final leave grantedappears to have taken the necessary steps to have the record despatched“to England and in fact the record was despatched and received by theRegistrar of the Privy Council on January 7, 1947..
Under the Judicial Committee Rules, 1925, an appellant, in the easeof an appeal from Ceylon, is allowed a period of four months from thedate of the arrival of the printed record in England to lodge his petitionof appeal. In this case the record in fact was printed in Ceylon. Theappellant therefore had time till May 8, 1947, to lodge his petition ofappeal, but prior to that date, namely on April 8, 1947, he appears tohave given notice in writing to the Registrar of the Privy Council that,he desired to withdraw his appeal, and the Registrar of the Privy Council-thereupon in terms of Rule 32 of the Rules referred to notified by letter4he Registrar of this Court that the appeal had been withdrawn.
Rule 32 proceeds to declare that in such an eventuality the appeaLshould stand dismissed as from the date of the letter of the Registrar-of the Privy Council without further order. The letter o| the Registrarof the Privy Council is filed of record and, besides setting out the factthat by virtue of Rule 32 of the Judicial Committee Rules the appeal,stands dismissed as from the date of his letter without further order,proceeds to say, “ I have accordingly to request you to be good enough,to bring this communication before the Judges of your Court in ordei-that the necessary steps may be takdn to terminate the proceedingsIt is important to note that though the appeal is said to stand dismissed,,nevertheless the communication indicates that some further steps shoulcLbe taken to terminate the proceedings.
Although no petition of appeal had in point of fact been filed in thePrivy Council and all that was done by the appellant was to haveobtained final leave of this Court to appeal to His Majesty in Counciland to have the printed record transmitted to the Registrar of thePrivy Council, Rule 32 of the Judicial Committee Rules uses languagewhich recognises the proceedings which were had prior to the filing ofthe petition of appeal as an appeal. It may be said that the languageof Rule 32 is not exact, but whatever that may be, the terms of theletter of the Registrar of the Privy Council indicates that though the‘ ‘ appeal ’ ’ . may stand dismissed without . further order in terms ofRule 32, yet other steps have to be taken to “ terminate the proceedings.
Ordinarily, when one uses the phraseology, “ the appeal stands dis-missed ” one would infer that nothing further need be done, for theproceedings are in fact terminated by the order that the appeal stands-dismissed. In this case it does not appear to be so. The appellantseeks to withdraw the fund deposited by him on the footing tbat . the-proceedings have terminated, and that nothing further remains to bodone. But this is in the teeth of the communication addressed by theRegistrar of the Privy Council to the Registrar of this Court. Besides,,as I have pointed out, the term “ the appeal stands dismissed ” mustreceive a special meaning having regard to the stage at which the orderwas made and must mean that the appellant does not desire to lodge-his petition of appeal and to proceed further with the appeal, in other-words, that he does not wish to prosecute the appeal.
The foundation for the application made by the appellant therefore-fails for no order has been made terminating the proceedings; such an.order appears to be essential before it could be said that finality has-been reached in regard’ to the appeal proceedings commenced by theappellant. The appellant must in these circumstances take stepsto have the proceedings terminated, and to secure an order of this Court–terminating the proceedings. That will then be the stage at which the.respondents could apply for any order for costs which they say theyare entitled to claim from the appellant.
In this view of the matter the application fails and is dismissed with:costs.
Puj/le -J.—I agree.
Application dismissed~