Kadija Umma V. Mohamed Sulaiman

1939 Present: Abrahams C. J., Hearne and Keuneman JJ.

KADIJA UMMA v. MOHAMED SULAIMAN.

8-D. C. Colombo, 25,701.

Privy Council-Application for final leave to appeal-Security in landed property-Bond hypothecating land attested before Registrar-Validity of bond-Ordinance No. 31 of 1909, Schedule I, Rule 3 (a).

Where, in an application for leave to appeal to the Privy Council, the appellant was permitted to give security in landed property, the bond hypothecating the land must comply with the requirements of section 2 of Ordinance No. 7 of 1840 or of Ordinance No. 17 of 1852.

Held, further, that the Supreme Court had' no power to grant relief to the appellant to enter into a proper bond after the expiration of the period except in accordance with the terms of Rule 3 (a) of the First Schedule of Ordinance No. 31 of 1909.

Queen's Advocate v. Thamba Pulle (3 Lorensz 303) distinguished; Mohamadu Tamby v. Pathumma (1 C. L. Rec. 26) not followed.

THIS was an application for final leave to appeal to the Privy Council. The appellants were permitted to give security for respondents' costs in landed property. Objection was taken by the second respondent that the bond by which the appellants hypothecated the property tendered as security was attested before the Registrar and was therefore not valid. The objection was taken before Soertsz and Nihill JJ. who ordered that the question should be referred to a Divisional Court.

N. E. Weerasooria, K. C. (with him E. F. N. Gratiaen), for plaintiffs, petitioners. When we made our application for conditional leave, the Supreme Court expressly directed hypothecation with the Registrar. We accordingly informed the Registrar regarding the form of the hypothecation, namely, that it would be in favour of the Registrar. No objection was at any time taken as to the form of the security although the respondents had been given notice of it. The only objection taken was not regarding the form, but that the title to the immovable property was not good. That objection was referred by the Registrar to the Supreme Court and on November 29, 1938, the Court ordered ?Security tendered to be accepted". Rule 3 (a) of Schedule I. of Ordinance No. 31 of 1909 does not specify the form of the security. It is sufficient if it is to the satisfaction of the Court. All things directed to be done have been done. The certificate of the Registrar is to that effect. Under Rule 4 of the same Schedule, the Court can make further direction, if necessary. See also Rule 21.

The form of the security which has been tendered is good. The bond in question is not governed by section 2 of Ordinance No. 7 of 1840- Queen's Advocate v. Thamba Pulle 1 That case was decided in 1859 and was followed in later cases-Mohamadu Tamby v. Pathumma 2, Menikhamy v. Pinhamy 3, Fernando v. Fernando 4. In Queen's Advocate v. Thamba Pulle (supra) the provisions of Ordinance No. 7 of 1840 were considered.

1 (1859) 3 Lorensz 303.
2 (1918) 1 G. L. Rec. 26.
3 (1921) 23 N. L. R. 189.
4 (1921) 23 N. L. R. 453.

N. Nadarajah (with him. W. Mutturajah), for third to sixteenth defendants, petitioners. -The difficulty of Soertsz and Nihill JJ. who have referred the question to a Divisional Bench is that Ordinance No. 31 of 1909 supersedes section 4 of the Civil Procedure Code, of 1889. Under sections 757 and 783 of the Civil Procedure Code, the form of the security for appeals to Supreme Court and Privy Council respectively were identical. Note in particular Forms No. 129 and 131. Ordinance No. 31 of 1909 retains the provisions of section 783 of the Civil Procedure Code and does not say anything new regarding the form of security. Thus the interpretation placed upon the provisions of section 757 of the Civil Procedure Code should still hold good-27 Halsbury (1st ed.) pp. 142 and 143.

Consistently from 1859, ?judicial bonds? have been placed on a footing of

Click Here to Read the rest of this document