JUDGMENT

Thomson CJ:

[1] I have had the advantage of reading the judgment of Barakbah J.A.

[2] I agree with the conclusions at which he has arrived and the process of reasoning by which I have arrived at them is not so different from his as to call for any lengthy statement.

[3] I agree that the present application should be granted.

Barakbah JA:

[4] On the 4th day of January 1954, the plaintiff, who is the respondent in this application, obtained judgment against the defendant who is the appellant and another person by the name of M. S. Mohamed Sultan for the sum of $24,682.72 and costs. The appellant lodged an appeal against this judgment, after depositing $500 as security for costs.

[5] On 31st May 1954, on the application of the respondent, Spencer Wilkinson J., sitting as a single judge of the Court of Appeal ordered the appellant to give, on or before the 30th June 1954, security for the payment of $5,453.80, being taxed costs to be paid by him to the respondent and a further security in the sum of $1,000, being costs of the appeal, also within the said period. The order further provided that unless the security was furnished on or before the said date, the appeal should be stayed.

[6] On 23rd July 1954, again on respondent's application Spencer Wilkinson J. made a further order extending the period within which to provide the said security to 31st July 1954. The learned Judge further ordered that if the appellant should make default in giving such security by the date aforesaid the appeal be dismissed with costs.

[7] The appellant did not comply with the said order and as alleged by the appellant the appeal stood dismissed on the 31st July 1954.

[8] The solicitors for the respondent then applied for the payment out of the security for costs of $500 and by agreement with the solicitors for the appellant a sum of $250 was paid out towards the costs of the appeal and $250 towards reduction of the costs in the Court below. See letters dated 6th August, 7th August and 26th August 1954.

[9] On the application of one V. N. S. Mohammed Yusof, son and attorney of the respondent, the Senior Assistant Registrar issued a certificate of non-satisfaction of the decree dated the 7th December 1954.

[10] No execution was levied against the appellant until 3rd December 1959 when the respondent filed an execution petition in the Court of the District Judge of East Thanjavur South India praying for attachment and sale of the appellant's property.

[11] On the 19th February 1960, the respondent applied by way of motion to the Court of Appeal sitting in Penang for an order that the appeal be dismissed with costs. The affidavit supporting the motion stated that by the order dated 23rd July 1954, the appeal had only been stayed, that no order had been made dismissing the appeal and that a formal order was required "in order to proceed further in India against the appellant." It was alleged by the appellant that the real purpose of this application was to defeat the Indian Limitation Act. It should be noted that the order dated 23rd July 1954 did in fact mention "the appeal herein be dismissed with costs."

[12] According to the appellant, he was not served with the notice of motion. His former solicitor appeared before the Court of Appeal on the 23rd February 1960 and stated that he had no instructions. As a result, the Court made an order dismissing the appeal. The respondent obtained the said order and proceeded with the execution petition in India. On 13th July 1960 the District Judge there ordered attachment of the appellant's property. Against this order the appellant preferred an appeal to the High Court in Madras which adjourned the hearing to enable the appellant to make an application to have the order of 23rd February 1960 set aside - hence this application.

[13] In my opinion the real issue is whether the order dated 23rd July 1954 is a final order or an interlocutory order.

[14] The learned counsel for the appellant contended that it was a final ord