Chang Min Tat FJ (delivering the judgment of the Court):

A preliminary objection is taken to this appeal by the respondents who argue that the appeal has not been brought before the Federal Court within the meaning and scope of r. 13, Federal Court (Civil Appeals) (Transitional) Rules 1963. The argument is founded on the fact that the notice of appeal was filed and served more than one month from the order now appealed from and the appeal cannot now lie in this Court without the special leave of the full Court and of this leave, there is none and none is being applied for.

The relevant order is an order for sale of certain lands charged by the appellant to the respondents under the National Land Code . The application for foreclosure was made in an originating summons and consequently heard in chambers.The order for sale was made on 6 September 1976, after the learned Judge had heard and considered certain contentious arguments.The sale was fixed for 12 December 1976.Notice of appeal was filed in Court on 1 November 1976, and a copy thereof was served on the respondents on the same day, considerably more than the one month specified.

Had the matter stopped here, this Court will have, on the present rules and on the authority of its previous and other decisions from which it can see no valid reason to depart, no other course than to rule that there is no appeal before it. But Counsel for the appellant asks us to consider the effect of the application for further arguments which the appellant made by letter dated 8

September 1976,well within the four days allowed under O. 54 r. 22A Rules of the Supreme Court. He contends that such an application has the practical effect of making what may be a final order not a final order for the purposes of lodging the notice of appeal.He draws the attention of this Court to the fact that the learned Judge only decided on 14 October 1976 not to require further arguments and to issue a certificate to this effect on the same date.Necessarily therefore, filing of the notice of appeal and service thereof, even if effected immediately after 14 October (which they were) must be more than one month from the order appealed from.

The answer of Counsel for the respondents is that as from 6 September 1976, the appellant could avail herself of the procedure under this rule and order, but it was not mandatory for her to do so. She could proceed on appeal without going through the process of making further arguments.With respect, this answer appears to require prescience which litigants or Counsel should be well advised to have, if they were not to have to meet objections of every possible nature and form.Unfortunately however such prescience is often only hind-sight.Further arguments may well not be mandatory, but they are available and if a litigant, for good reasons, one of which appears clearly to be the saving of costs, chooses to avail herself of them, then she should not be shut out of further process if this process has to be taken.

On a fuller consideration, we are of the view that however final in terms the order of 6 September 1976, may be, in practical effect, it could not be acted upon until the decision of the learned Judge on the further arguments or his decision not to require further arguments was made known.He could have heard such further arguments and then he could confirm his previous decision or revoke it or make such further or other order as he deemed just.In the latter event and in the event he decided not to hear further arguments, the fact that the order made in chambers had been drawn up and perfected (as the one was) would have no significance.If on the other hand, he decided to confirm the order, the sale would take place unless an appeal was filed and a stay ordered.But if on the day fixed for the sale of the charged lands, he had not made known his decision to confirm the order, then quite clearly the sale could not be carried out, and it would have to be adjourned ti