[Full Bench. ]

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice Grenier.

SALGADO v. PEIRIS.

D. C., Negombo, 84.

Appeals in insolvency cases-Cannot be stamped after the appealable time had expired-Civil Procedure Code, ch. LVIII.

A petition of appeal in insolvency cases must bear a stamp of Rs. 2. 50 at the time it is presented to the Court. The Court has no power to allow it to be stamped after the time for appealing has expired.

THE petition of appeal in this case was presented unstamped within the appealable time, and when it came to the Supreme Court, the Registrar drew the attention of the appellant to the fact that the petition was not stamped. The petition was subsequently stamped, after the appealable time. At the hearing of the appeal the respondent took the objection that the appeal was not perfected within the appealable time. The question was reserved for the consideration of a Full Bench.

Tambyah (with him Cooray), for respondent. -The petition of appeal was not stamped within the appealable time. Under the Stamp Ordinance, Schedule B, Part V,, a petition of appeal in an insolvency case has to bear a Rs. 2. 50 stamp. [Middleton J. - Does the Civil Procedure Code govern appeals in insolvency proceedings ?] Yes; section 754 begins, " Every appeal to the Supreme Court. " The ruling in In re Abdul Azis 1 is only a ruling on the question of security.

Samarawickrama (with him B. F. de Silva), for the appellant. - Even if the Civil Procedure Code governs appeals in insolvency cases, section 755 does not require written petitions of appeal to be stamped at the time they are presented to Court. [Grenier J. - The Secretary cannot receive a petition of appeal without stamps. ] Under section 34 of Ordinance No. 3 of 1890 a petition of appeal could be stamped even after the appealable time. Counsel relied on In re Abdul Azis. 1

1 (1895) 1 N. L. R. 196.

Tambyah, in reply. -Section 34 of Ordinance No. 3 of 1890 applies i. to Part II. of Schedule B. A petition of appeal is provided for in Part V. of Schedule B.

November 25, 1909. Hutchinson C. J. -

This is an appeal against an order made under the Insolvency Ordinance, No. 7 of 1853. The petition of appeal was filed in the District Court in due time, but was not stamped until after the time for appealing had expired. The question is whether the stamping of such a petition is a condition precedent to its being received.

A stamp duty of Rs. 2. 50 is imposed on petitions of appeal under the Insolvency Ordinance by Part V. of Schedule B to the Stamp Ordinance, No. 3 of 1890. There is a provision in section 34 of the Stamp Ordinance for stamping certain instruments which do not bear the proper amount of stamp duty, but it does not apply to petitions of appeal. And there is also a provision in section 63 of the Insolvency Ordinance for the stamping of documents which are by that Ordinance required to be stamped, and which have been through mistake or inadvertence filed without a stamp; but that does not apply here, because no stamp is required by that Ordinance on these petitions of appeal.

By section 6 of the Insolvency Ordinance appeals under that Ordinance are to be " subject to such regulations as now exist or shall hereafter be made by any rule or order of the Supreme Court. " There were regulations then in force, but they were expressly repealed by the Civil Procedure Code. No rules or orders have been made by the Supreme Court affecting these appeals.

In my opinion the effect of the Stamp Ordinance is that a petition of appeal in insolvency cases must bear a stamp of Rs. 2. 50; that the Court is bound not to accept it unless it is so stamped: and that the Court has no power to allow it to be stamped after the time for appealing has expired.

Middleton J. -

In this case it is objected preliminarily that no appeal has been duly presented. The ground