JUDGMENT

Chang Min Tat J:

This appeal is from the refusal of the learned trial Judge to exercise his discretion in favour of the appellant who on his advice had applied to the High Court for extension of time for filing and serving the memorandum of appeal.

Judgment was given against the appellant on 8 June 1972. Notice of appeal was filed on 14 June 1972, well within the period of the 14 days specified in Order XXXIX, r. 2(3) of the Subordinate Court Rules and also within time, served on the respondent.

Consequent on this notice of appeal, the Sessions Court at Kuala Pilah, the Court appealed from, set about preparing the appeal record as laid down in Order XXXIX r. 3. This particular rule is in these words:

R 3 (1). When the appellant has complied with the requirements of r. 2 of this Order ..., the Court appealed from shall prepare the requisite number of copies of the appeal record and the appeal record shall contain copies of ....

(2). As soon as the appeal record is ready the Court appealed from shall serve the appellant with a notice in Form 40.

The notice under Order XXXIX r. 3(2) was served on the appellant's solicitors on 23 May 1974 but they were not on that day served with the appeal record. That was of course understandable. It was clear from the notice which was a specified form, being Form 40 of the Subordinate Court Rules, that they were only advised that the record was ready and that the costs of preparing such record were a certain sum and due by them to the court. It was only upon their request and subject to the payment of such costs that the Registrar of the Court appealed from would supply them with a copy of the appeal record and upon payment of such additional costs as were required to be paid, with sufficient additional copies for service on the other side, as might be required.

Both parties are agreed that the appellant's solicitors were served with the record on 26 May 1974. This must mean that the costs for the record were paid either on or prior to this date. Mr. Atma Singh filed the memorandum of appeal on 9 June 1974, which was on the 16th day after service on him of the notice in Form 40, one of the intervening days being a non-day. He failed on that day to effect 'service on the respondents. He only did so on 12 June 1974 after he had been given another copy or copies of the appeal record by the court. This could mean that when he paid the costs and was supplied a copy, he did not ask or pay for and was not therefore supplied with, an additional copy or copies for service on the respondents.

In respect therefore of the filing in Court and service on the respondents of the memorandum of appeal, the appellant was out of time, by two days on the former and on the latter by five days, if the rules specified 14 days, running from 23 May and not from 26 May. On this point Mr. Atma Singh contended that nowhere did r. 3 or any rule in Order XXXIX specify this period or lay down when this period ran.

It is somewhat unfortunately not realized or not sufficiently realized that an appeal from a Subordinate Court to the High Court involves registration in the registries of two courts. Insofar as the Subordinate Court Registry is concerned, its work is, subject to a last task of executing the order of the superior Court after the appeal, finished after supplying the appellant with the required copies of the appeal record, and forwarding to the Assistant Registrar of the High Court appealed to, the remaining copies of the record, endorsed with the date of Form 40: see Order XXXIX r. 3(4)(b). Thereafter the High Court Registry takes over and the Rules of the Supreme Court become effective and applicable. The particular order is of course O. 59 - Appeals from Subordinate Courts and Statutory Bodies. An appellant has to file in the Registry of the High Court his appeal record and the grounds of his appeal which together constitute the memorandum of appeal, in Form 23 of the First Schedule to the Rules of