Annamalay Chetty V. Thronhill

1935 Present: Macdonell CJ. and Koch A.J.

ANNAMALAY CHETTY v. THORNHILL.

 215-D. C. Ratnapura, 4,687.

    Privy Council-Application for conditional leave-Application made by attorney of applicant-Proxy granted to proctor by attorney-Irregularity-Ordinance No. 31 of 1909, Schedule I., rules 2 and 6.

Where an application for conditional leave to appeal to the Privy-Council was made by a duly authorized attorney of the applicant through a proctor to whom the attorney had granted a proxy for the purpose.-

Held, that the application was not regularly made.

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

H. E. Garvin, for defendant in support.

Gratiaen (with him D. W. Fernando), for plaintiff, respondent. March 19, 1935. KOCH A.J.-

This is an application for conditional leave to appeal to the Privy Council from a judgment of this Court delivered on February 6, 1935.

The applicant was the defendant against whom judgment was pronounced and the respondent the successful plaintiff. The application is opposed by the respondent on the grounds that in two respects the requirements of rule 2 of Schedule I. to Ordinance No. 31 of 1909 had not been complied with. The rule reads as follows:-

"Rule 2.-Application to the Court for leave to appeal shall be made-by petition within thirty days from the date of judgment to be-appealed from, and the applicant shall, within fourteen days from the date of such judgment, give the opposite party notice of such intended application."

Two things then are required of the applicant, to apply to this Court within thirty days from the date of the judgment, and to give notice of that application to the other party within fourteen days from that date.

The facts material to this application are briefly these. The applicant had executed a power of attorney on March 24, 1934, in favour of one W. B. Morison empowering that attorney to act for and on behalf of the applicant in various matters including proceedings in Court and in appeals not only to this Court but also to the Privy Council. There was a further provision giving the attorney power to grant proxies to proctors for these purposes.

Accordingly on October 3, 1934, the attorney granted on behalf of the applicant a proxy to Mr. J. A. Perera, proctor, in the following terms: -

" To appear for me in action No. 4,687 of the District Court of Ratnapura in which I am appellant, to support my appeal, to file all necessary papers and to make all necessary motions and applications and generally act for me in the said action". This proxy of October 3, 1934, was duly filed and is the one on which appeal to this Court was brought, resulting in the judgment of February 6, 1935. It was contended that this proxy sufficiently authorized the present application, but it seems clear that the terms of the proxy do not empower the proctor to act under this Ordinance, No. 31 of 1909, that is to apply to this Court for leave to appeal to the Privy Council.

The decree of this Court intended to be appealed from was delivered, as has been said, on February 6, 1935, and five days later, on February 11, 1935, Mr. J. A. Perera acting presumably on the proxy of October 3, 1934, filed an application in this Court for conditional leave to appeal to the Privy Council. Later on, he seems to have been afraid that this proxy of October 3, 1934, was insufficient and accordingly he, Mr. J. A. Perera, filed an additional proxy which had been granted to him on February 15, 1935, by the attorney of the appellant, which proxy empowers Mr. Perera " to appear for me in action 4,687 of the District Court of Colombo (this should be Ratnapura) S. C. Final No. 215 and to take the necessary steps to appeal from the judgment of the Supreme Court dated February 6, 1935, to the Privy Council, to file all necessary papers, &c.", and it also ratines " all acts done, applications made,

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