049-NLR-NLR-V-60-W.-SOBITHA-UNNANSE-and-another-Applicants-and-A.-PIYARATNA-UNNANSE-and-anoth.pdf
BASNAYAKE, C.J.—Sobitha Unnanse v. Piyaratna Unnanse
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1957Present: Basnayake C.J., and Pulle, J.W. SOBITHA UNNANSE and another, Applicants, and •A. PIYARATNA UNNANSE and another, Respondents
8. C. 239—Application for Conditional Leave to Appeal to thePrivy Council in 8. C. 52 of 1955jD. C. Kandy, 2,154
Privy Council—Conditional have to appeal—Notice to opposite party—Meaning of“ opposite party ”—Stay of eieouMon of decree—Civil Procedure Code,s. 94 (2)—Appeals (Privy Council) Ordinance, Schedule, Ride 2,
In an application for conditional leave to appeal to the Privy Council, thewords “ opposite party ” in Rule 2 of the Rules in the Schedule to the Appeals(Privy Council) Ordinance mean the party on the side opposite to the applicant.Therefore, when the applicant is a defendant, he must give notice of hisapplication to the plaintiff but need not give such notice to a co-defendantalthough he is at issue with the co-defendant.
Application for stay of execution of decree granted.
A
■^APPLICATION for conditional leave to appeal to the Pnvy Council.
N.E. Weerasooria, Q.C., with W. D. Gunasekera, for 1st and 2ndDefendants-Applicants.
H. W. Jayewa/rdene, Q.C., with B. 8. C. Ratwatte, for Plaintiffs-Respondents,
June 3, 1957. Basnayake, C.J.—
This is an application for conditional leave to appeal to the PrivyCouncil by the 1st and 2nd defendants. Objection is taken to the grantingof leave to appeal on the ground that notice of the intended applicationhas not been given to the 3rd, 4th and 5th defendants. Learned counselfor the plaintiffs, the party opposing the application, submits that thewords “ opposite party ” in Rule 2 of the Rules in the Schedule to theAppeals (Privy Council) Ordinance mean not only party on the oppositeside but also any party with whom the party applying for leave to appealwas at issue. The words “ opposite party ” in the Rules in the Scheduleto the Appeals (Privy Council) Ordinance should be interpreted accordingto the well known canons of interpretation. First we should ascertaintheir ordinary meaning. Those words ordinarily mean the party on theside opposite to the applicant, and, in the instant case, as the applicantsare the 1st and 2nd defendants, the opposite party are the plaintiffs.
We were referred to cases decided by the courts in England as to theinterpretation of the words “ opposite party ” in rules and ordersgoverning discovery and the service of interrogatories. It would bewrong to apply to our enactment the special meaning that expressionhas acquired in the context of Rule 1 of Order XXXI of the Rules of the
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Supreme Court of England. Where the Legislature intends that thosewords should bear a special meaning it has said so expressly as in section94 (2) of the Civil Procedure Code which defines “ opposite party ” forthe purpose of our provisions governing discovery and interrogatories asa party between whom and the party interrogating an issue has beenraised.
The objection is therefore over-ruled and conditional leave to appealto the Privy Council is granted on the usual terms and conditions.
We have also before us two applications—one by the applicants to stayexecution of the decree pending the appeal to the Privy Council and theother by the respondents for execution of the decree pending the appeal.We have heard counsel in support of the application for stay of executionof the decree and we do not see why stay of execution should not begranted on good and sufficient security to our satisfaction being furnishedby the applicants. We have determined that a sum of Rs. 25,000 incash deposited with the Registrar of this Court and secured in favourof the Crown will be sufficient security in the circumstances of this casefor the due performance of such order as Her Majesty in Council shallthink fit to make. The applicants have asked for time within whichto furnish the security. We are disposed to allow that application andwe direct that the security should be furnished on or before the3rd September, 1957.
It is not necessary to deal with the application for execution of thejudgment pending the appeal until it is known whether the applicantshave furnished the security for stay of execution or not. We shalltherefore deal with that application after 3rd September next. For thatpurpose we direct that the case be called on 4th September 1957.
Pull®, J.—I agree.
Application allowed.