1934 Present: Macdonell C.J. and Dalton S.P.J.

FRADD v. FERNANDO.

75-D. C. Colombo, 46,425.

    Privy Council-Application for conditional leave-Service of notice-Notice on attorney of party irregular-Substituted service-Appellate Procedure Privy Council) Order, 1921, rules 5 and 5A.

Notice of an application for conditional leave to appeal to the Privy Council must be served on the party personally or his proctor empowered to accept service.

Service on a person holding a power of attorney from a party is insufficient.

Where service cannot be effected on the party personally or his proctor, application for substituted service must be made under rule 5A of the Appellate Procedure (Privy Council) Order, 1921.

THIS was an application for conditional leave to appeal to the Privy Council.

E. F. N. Gratiaen, for defendant, appellant.

H. V. Perera (with him H. E. Garvin), for plaintiff, respondent.

October 4, 1934. MACDONELL C.J.-

In this case the defendant applied for conditional leave to appeal to the Privy Council against a judgment in favour of the plaintiff of July 30, 1934. The plaintiff resides in England but had executed a power of attorney in favour of a certain person in Colombo, which gives that person

full powers with regard to any proceedings that may be brought in the Courts here either as plaintiff or defendant, including appeals to the Privy Council. The defendant-appellant served the notice of his intended application to the Court for leave to appeal which is required by rule 2 of Schedule I. to Ordinance No. 31 of 1909, upon the plaintiff's attorney within the fourteen days from the date of judgment required by the said rule 2, and the question before us was whether this service upon the plaintiff's attorney was sufficient. The matter would seem to be regulated by the orders to be found in the Handbook of the Supreme Court of Ceylon at p. 105 sq., called " The Appellate Procedure (Privy Council) Order, 1921". The relevant rules in that order are 5 and 5A, the latter being an amending order which came into force on August 3,1928, and they are as follows : -

" 5. A party who is required to serve any notice may himself serve it or cause it to be served, or may apply by motion in Court before a single Judge for an order that it may be issued by and served through the Court; and in the latter case he shall within two days after obtaining the order, lodge in the registry a notice in duplicate, prepared for the Registrar's signature and duly stamped. The notice may be served either on the party or on his proctor.

5A. If after reasonable exertion it is found that service of any notice cannot be duly effected upon a party personally or upon his proctor empowered to accept service thereof, it shall be competent for the Court, which may consist of a single Judge, on being satisfied by evidence adduced before it that reasonable exertion to effect service has been made and that service cannot be effected, to prescribe any other mode of service. The service substituted by order of the Court shall be as effectual as if it had been made on the party personally or on his proctor. Whenever service is substituted by order of the Court, the Court shall fix such time for the appearance of the party as the case may require."

These two rules have to be read in conjunction with rule 2 in the Schedule I. to Ordinance No. 31 of 1909. The would-be applicant must give the notice of his intended application within fourteen days and these additional rules 5 and 5A say to whom he must give the notice. It was conceded that the plaintiff who will be respondent upon the appeal to the Privy Council, had appointed an attorney in Ceylon with full powers to act for her, but it was argued that under the rule 5A of the Appellate Procedure Order service of the notice could not be effected upon her attorney. A very full argument was addressed to us upon the point, but the ma