EMALISHAMY v. EGO APPU.

EMALISHAMY v. EGO APPU.

D. C., Galle, 6,222.

Petition of appeal-Appealable time-Date of judgment-Subsequent entry of decree-Civil Procedure Code, ss. 5, 188, 754-Leave to appeal.

    The period of ten days fixed by section 754 of the Civil Procedure Code for appealing runs from the date of the judgment pronounced by the Court.

    The petition of appeal must be presented to the Court of the first instance within that period. The entering up of the decree is a ministerial act of the Court, and under section 188 the decree, although entered at a later date than the date on which the judgment has been pronounced, must bear the same date as the judgment and be in conformity with the judgment.

    In the event of there being great delay in preparing and signing the decree, whereby the appellant was prevented from filing his petition within the time fixed by section 754, the Supreme Court can always give leave to appeal notwithstanding lapse of time.

THIS was an application to the Supreme Court made by the first and second defendants for a direction to the District Judge of Galle to accept the petition of appeal tendered by them on the 6th day of June, 1902, or, in the alternative, for leave to appeal, notwithstanding lapse of time, against the judgment pronounced on 22nd May, 1902. The application was considered on 18th May, 1903, by a Full Bench consisting of Layard, C.J., Middleton, J., and Grenier, A.J.

    H. Jayawardene appeared for the applicants. The appealable time should be calculated from the day on which the drecee was

entered, and not from the day on which the judgment was pronounced. For certain purposes the decree must bear the  same date as the judgment, but the decree may be entered on a  different date.

Cur. adv. vult.

1st June, 1903. MIDDLETON, J.-

    This was an application by the defendants that this Court would direct the District Judge to accept the petition of appeal presented by them and forward the same to the Supreme Court, or, in the alternative, that the defendants be allowed to appeal notwithstanding lapse of time.

    The judgment in the action was pronounced on the 22nd May, 1902, and on the 26th May the first defendant went to the District Court to file an appeal, but found that the decree was not yet entered.

    On the 6th June he tendered his petition of appeal calculating his limit of ten days, under section 750 of the Civil Procedure Code, from 26th May, and for him it was contended by counsel that he was in time within the meaning of the words of that section.

    The words of the section are " within a period of ten days from the date when the decree or order appealed against was pronounced."

    Under section 188 the decree, although entered at a later date than the judgment has been pronounced, must bear the same date as the judgment and should be in conformity with the judgment, and it is against the formal decree that an appeal is in practice directed, as the decree contains the operative effect of the judgment.

    Taking into consideration the meaning of the word " decree as it is used in section 188, it is clear to me that the word " decree " in the fourth line of the 2nd paragraph of section 754 has been transposed by the Legislature for the word " judgment," inasmuch as a" decree " in its technical sense, under section 188, is not pronounced but entered, being in effect the formal exposition of the Court's judgment.

    I think, therefore, that the defendant could not be deemed to be within time in presenting an appeal on the 6th June on the basis that a decree which was entered on the 26th May, upon a judgment pronounced on the 22nd May, was in effect a decree pronounced on the 26th May.

    In dismissing the defendant's application we relegate him to his alternative remedy.

LAYARD, C.J.-

    The question to be decided here is whether the period of ten days fixed by section 754 of the Civil Procedure

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