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SELVAGURU v. THYALPAGER ET AL.
NLR49V337
1948 Present :
Jayetileke and Windham, JJ.
SELVAGURU, Petitioner, and THYALPAGER et al.,
Respondents.
S. C. 130-Application1 fob Approval of Security
tendered re Appeal
to Privy Council in S. C. 602/78 (Inty.) D. C, Jaffna, No. 277.
Privy Council-Final leave to appeal-Deposit
of security-Hypothecation of immovable property-Notice to other side-Application
for approval-Appeals (Privy Council) Ordinance, Chapter So-Rule 3 (a) of
Schedule-Appellate Procedure (Privy Council) Order-Rule 7 (1).
Where conditional leave to appeal to the Privy Council is granted on the usual
conditions the applicant need not deposit the security in cash. Where, however,
the applicant seeks to give security by the hypothecation of immovable property,
he must make his application to Court for the approval of such security within a
month of the grant of conditional leave and such application must be with notice
to the other side. Where no such notice has been given there is no sufficient
compliance with Rule 7 (1) of the Appellate Procedure (Privy Council) Order. The
Supreme Court has no power to extend the period of time unless an application
for such extension is made within the month.
APPLICATION
for approval of security tendered regarding an appeal to the
Privy Council.
H. W. Thambiah, with H. Wanigatunga, for the respondent.- The
petitioner has been granted conditional leave to appeal to the Privy Council "
on the usual conditions ". The order of the Supreme Court is that security of
three thousand rupees be given by a deposit of money. [Jayetileke J.-Can the
order of the Supreme Court " allowed on usual conditions " be interpreted to
mean that cash security must be given ?]
The order of the Supreme Court as it stands is that cash security should be
given. The usual practice has been to give cash security. It is in the
discretion of this Court to refuse any other kind of security. But under rule 7
(1) of the Appellate Procedure (Privy Council) order, 1921, made under section 4
(1) of the Appeals (Privy Council) Ordinance, No. 31 of 1909, Cap. 85, this
court could have ordered other security. But under the same rule 7 (1) for this
court to order other security there must be a special application made with
notice to the other side for the approval of the security tendered.
The application for approval of security, the notice to the other side and the
actual approval of the security by the Court must all be obtained within one
month or within such extended time as has been obtained by application to Court
made before the expiration of that period of one month from the date of the
allowing of conditional leave to appeal. Rule 3 (1) of Schedule to the Appeals
(Privy Council) Ordinance makes it perfectly clear that security must be
complete within one month or, if extended, within the extended period of time.
In this case only an application for accepting the security was made within one
month. No notice was given to us within one month, and security has not yet been
approved by this Court. Further, there is not
even an application for extension within one
month. Court has no power to grant any extension of time now as the month has
expired, and the requirements of the main Ordinance (Chap. 85) and particularly
of rule 3 (1) of Schedule to Chapter 85 are peremptory. See Kadija Umma v.
Mohamad Sulaiman 1. Under rule 18 of Appellate Procedure (Privy
Council) Order, 1921, extension of time may be granted for periods of time
prescribed by that order, but rule 18 does not apply to periods prescribed by
the main Ordinance (Chap. 85) or its Schedule.
Further, the security tendered is bad. One of the sureties is a woman. The
Senatus Consultum Velleianum and Lex authtntica si qua mulier still apply to
persons subject to Thesawalamai. Though these benefits were abrogated by section
29 of Married Women's Property Ordinance that Ordinance itself does not apply to
