Simon Singho V. William Appuhamy

Present: Bertram C. J. and Schneider J.

SIMON SINGHO v. WILLIAM APPUHAMY.

242-D. C. Colombo, 10, 490

Time-Postponement of case-Undertaking to pay costs-Last day a Sunday-Judicial act.

On an application made on behalf of the defendant the case was postponed on condition that the costs of the day were paid by him on or before July 20; and it. was further agreed that on failure thereof, judgment should be entered for the plaintiff. July 20 fell on a Sunday, and the costs were tendered on the Monday following.

Held, that the defendant had failed to carry out his undertaking in terms of the order.

Per Bertram C. J. -A person is relieved from responsibility to make a payment in the nature of a judicial act on a Sunday. An undertaking to pay costs simpliciter does not imply payment into Court.

APPEAL from an order of the District Judge of Colombo. In this action an application was made for a postponement on the ground that the defendant was ill. The Court then made the following order: " Of consent, postponed for July 21. Defendant to pay Rs. 86 costs of to-day on or before July 20. If not paid, judgment for plaintiff, and the defendant's claim in reconvention to be dismissed. " July 20 happened to be a Sunday. On Monday morning the defendant's counsel appeared, and stated that the costs had been tendered that morning. The learned District Judge held that the defendant had failed to comply with the order, and entered judgment for the plaintiff.

J. S. Jayewardene, for defendant, appellant.

H. V. Perera, for plaintiff, respondent.

February 13, 1925. Bertram C. J. --

In this case an application was made in the Court below for a postponement on the ground that the defendant was ill. The Court then made the following order: " Of consent, postponed for July 21. Defendant to pay Rs. 86, costs of to-day, on or before July 20. If not paid, judgment for plaintiff, and defendant's claim in reconvention to be dismissed. " As it turned out, July 20 was a Sunday, a fact which the Court probably overlooked. On the Monday morning the defendant's counsel appeared and tendered a medical

certificate. He also stated that the costs had been tendered that morning. The learned Judge, holding that the order was not complied with, entered judgment in terms of the consent order.

In the Court below the defendant's counsel had not realized the point about the 20th being a Sunday. Mr. J. S. Jayawardene has discovered the point, and pressed it upon us on this appeal. He contends that in the circumstances, July 20 being a Sunday, the defendant was entitled to comply with the order on the following day. Various authorities have been cited to us. But I think it is clear that neither the Indian authorities nor the English authorities apply to the case.

With regard to the case cited by my brother Jayewardene in a recent judgment (Balprasad v. Dharindhar Sakharam [1 I. L. R. 10 Bom. 433.] ), that case no doubt, held that under the law in force in India where a decree based on an agreement is passed for the payment of a certain sum within a given period, and where, owing to the Court vacation, payment becomes impossible during the last two days of that period, the person ordered to pay must take the consequences; he must pay on an earlier date. The fact that the compliance with the decree on the last two days has become impossible does not exonerate him. That case was cited by my brother Jayewardene in the course of the investigation of the question, where, in such cases as these, the circumstance that compliance with the decree on the last day has become impossible, whether through circumstances outside the control of the party affected or otherwise, entitles that party to pay on the subsequent day. My brother held that impossibility of performance did not extend the time within which performance may have been made. So also with regard to the English cases. They are cited in

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