1927 Present: Dalton and Lyall Grant JJ.

DE SILVA v. DE SILVA.

 98-D. C. (Inty.) Galle, 5,440.

Privy Council-Conditional leave to appeal-Security-Mortgage of immovable property.

In an appeal to the Privy Council the appellant is entitled to give security for the respondent's costs by the mortgage and hypothecation of immovable property.

The requirements, which the applicant must comply with  before such security can be accepted, indicated.

APPLICATION by appellant, who had obtained conditional  leave to appeal to the Privy Council, to give security for respondent's costs by the mortgage and hypothecation of an undivided half share of an allotment of land stated to be of over the value of Rs. 3,000.

J. S. Jayawardene, for appellant.

H. V. Perera (with Vethavanam), for respondent.

January 31, 1927. DALTON J.-

This is an application by the appellant, who has obtained conditional leave to appeal to the Privy Council, to this Court to approve of the appellant giving security for the respondent's costs by the mortgage and hypothecation of an undivided half share of an allotment of land, which half share is stated to be of the value of over Rs. 3,000 and to be free of encumbrance.

The application was opposed by the respondent. We thereupon referred the application to the Registrar for report as to the sufficiency or otherwise of the security proposed, and also as to the

practice of the Court in such case and to say whether as a rule money is deposited or property hypothecated.

The Registrar now reports that the almost invariable practice has been to call upon the appellant to deposit the required security in cash, and that within the last ten years there has been only one departure from this practice, so far as he has been able to ascertain. In that one case (190-191, D. C. Jaffna, 9,671) a similar application to the one now before us was made to the Court, which thereupon referred the matter to the District Court to satisfy itself as to the valuation of the property tendered as security. Upon the District Judge reporting that the security was sufficient this Court directed that the hypothecation of the lands for the security of Rs. 3,000 be accepted. No mention is made of any reason why the usual practice was not followed.

The respondent resists the application principally upon the ground that the form of security offered is objectionable, and that if a mortgage is accepted as proposed, he may have considerable difficulty in realizing his security, should he become entitled to do so. He also lays stress on the practice that has obtained for so long, and asks that that practice be not departed from in the absence of any good and sufficient reason being put forward by the appellant.

The duty imposed upon this Court, under rule 3 of the schedule to Ordinance No. 31 of 1909, in the case of appeals to His Majesty in Council, is to direct good and sufficient security to its satisfaction in the sum fixed, for the due prosecution of the appeal and for the payment of all such costs as may become payable to the respondent. There are, however, further rules framed under the provisions of section 5 of the Ordinance to which no reference was made by Counsel in the course of the argument. I personally must admit that their existence has not been brought to my notice before. They are contained in " the Appellate Procedure (Privy Council) Order, 1921," published in the Gazette of July 29, 1921. By rule 7 of the Order it is provided that the security to be given by the appellant under rule 3 (a) of the schedule to the Ordinance shall be by deposit of a sum of Rs. 3,000 with the Registrar and by hypothecation thereof by bond, or by such other security as the Court shall, on application made after notice to the other side, approve. This no doubt explains the practice referred to by the Registrar in his report, but in effect it is only a little more definite in one res