Present: Fisher C. j., Garvin, Lyall Grant, Drieberg, and Akbar JJ.

BOYAGODA v. MENDIS et al.

182-D.C.Colombo, 19,574.

    Appeal-Time, limit-Period of ten day Exclusion of the last day- Civil Procedure Code, 8. 754.

Where a judgment sought to be appealed from was delivered on August 2, and a petition of appeal was presented on August 16, there being an intervention of two Sundays and a public holiday,-

Held, that the petition of appeal had been filed within the period of time prescribed by section 754 of the Civil Procedure Code.

Where an enactment concerning procedure has received a certain interpretation, which has been recognized by the Courts for a long period of years, the practice based upon such interpretation should be followed.

CASE referred under section 54A of the Courts Ordinance for decision by a Bench of Five Judges.

The question involved was whether a petition of appeal had been filed within the period of time prescribed by section 754 of the Civil Procedure Code. The section runs as follows:-

The petition of appeal shall be presented to the Court of first instance for this purpose by the. party appellant or his Proctor within a period of ten days, or where such Court is a Court of Requests, seven days, from the date when the decree or order appealed against was pronounced, exclusive of the day of that date itself and of the day when the petition is presented and of Sundays and public holidays, and the Court to which the petition is so presented shall receive it and deal with it as hereinafter provided.

The judgment sought to be appealed against was delivered on August 2 and the petition of appeal was presented on August 16. August 15 was a public holiday and there were two Sundays intervening.

E. W. Jayewardene, K. C. (with Koch and Ameresekere), for respondent, raised the objection.

Under section 754 the appeal has to be filed " within " ten days, exclusive of the day of filing of the appeal.

Rules 8 (1), (2), (3) of the Rules and Orders under the Charter of 1833, employed the words " in which " ; and by the use of the word . " within " in section 754 the Legislature merely used other words to convey the same idea.

When the word " within" was used, it was not quite certain whether the two terminal days were excluded or included. It was in that state that the section was framed .
 
The effect of the section, in practice, is to give so many " clear " days.1[1 2 C. L. R. 96 (Babapulle v. Domingo) ; S. C. 428, C. R. Kegalia, 6812 (S.C.Mins, of March 11,1907).]

" Within " excludes the first day and includes the last day, subject to any exception in the Statute. 2[2 (1914) Yearly Practice, p. 1031.]

As Sundays and public holidays are not to be counted, they are not " days " within the meaning of the section.

This section has been so interpreted by authoritative usage, and usage has the authority of law. Long established usage cannot be lightly overruled. 3[3 27 Hals. s, . 266. ]

The section must be so construed that all the words are given their full meaning. The interpretation placed upon it in the above two cases makes it possible to do so.

The judgment of this Court in S. C. 325, D. C. Matara, 2,288 (S. C. Minutes of February 28, 1929), defeats the intention of the Legislature and gives no effect to a part of the section.

H. V. Perera, for the appellant, adopted the authorities cited by Counsel for respondent. Counsel submitted, further, that because the section excludes the day of the filing of the petition of appeal, the legal effect is that the filing of the petition at any moment of the eleventh day, is referred back to the last moment of the tenth day and so it is filed " within " the ten days. The day of the actual filing of the appeal has no time value in law.

March 18, 1929. FISHER C.J.-

The question we are called upon to decide arises from a preliminary objection to the hearing of an appeal. The objectio