(McELWAINE CJ, SS, HALL CJ, FMS and HOWES J)

The Appellants obtained judgments in the Courts of the Straits Settlements against Chang Kiam Hoe alias Thio Nghean Leong, and these judgments were registered in the High Court of Kedah. The Appellants attached certain lands in which the said Chang Kiam Hoe alias Thio Nghean Leong appeared to have a beneficial interest. Various proceedings were taken in the Kedah Courts to decide whether or not the land belonged to the estate of one Thio Tiauw Siat deceased.

An action was brought by the Estate and Trust Agencies Limited as Receivers of the Estate of the said Thio Tiauw Siat against the five defendants for a declaration that the lands attached belonged to the estate of Thio Tiauw Siat deceased and for an order that the seizure made by the 4th and 5th defendants be removed.

The learned Judge of the Second Division made these orders.

The 4th and 5th defendants lodged an appeal to the Judge of the First Division. This appeal was lodged in time.

After the appeal had been set down for hearing, the present appellants were advised that their proper course was not to appeal against the orders of the Judge of the Second Division but to commence a new suit for a declaration that the defendant Chang Kiam Hoe alias Thio Nghean Leong is still the owner of the seized land.

The 4th and 5th Appellants therefore desired to withdraw the appeal. The plaintiff agreed that the appeal should be withdrawn on payment of certain costs. The appeal was therefore taken out of the list.

It was then discovered that the new contemplated suit could not be brought and that the procedure by appeal was the proper procedure.

The present Appellants applied to the Judge of the First Division to be allowed to appeal out of time.

This application he refused being of opinion that he had no power to make such an order. The learned Judge appears to have considered In Re Lamb 23 QBD 477 in point. But this was a case in which an appeal had been dismissed by the Court on the non-appearance of the appellant. It was a case of res judicata. The present case was taken out of the list. It was not called on before the Judge because it was already withdrawn. The Judge of the First Division had not dismissed it.

We have had the advantage of considering Watson v Cave 17 Ch D 23 which was not cited before the learned Judge of the First Division.

From that case it appears that when an appeal has been withdrawn by mistake of fact, if the appellant afterwards wished to withdraw from his withdrawal and return to his former position, his proper course was to apply for leave to give fresh notice of appeal.

That decision is applicable in the present case, and we are of opinion that the learned Judge of the First Division had jurisdiction to give leave to file a fresh appeal out of time in place of the appeal which had been withdrawn and not dismissed.

We think this a proper case in which leave to appeal out of time should be granted on terms.

Those terms are that the costs paid to the Respondents shall not be affected by whatever may be the result of the appeal which we now give leave to file. That the costs of the present appeal be in no case paid by the Respondents, but should the appeal be dismissed the Respondents to have their taxed costs of to-day's appeal.

On these terms we give leave to appeal out of time against the decision of the learned Judge of the Second Division, and for this purpose extend the time for appealing to 31st March, 1938.

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