002-NLR-NLR-V-64-RUBEN-PEIRIS-Petitioner-and-DASSENAIKE-Respondent.pdf
Peiria v. Dassenctike
21
Present: Basnayake, C.J., H. N. G. Fernando, J.,
and Sinnetamby, J.
RUBEN PEIRIS, Petitioner, and DASSENAIKE, Respondent
8. C. 255—Application for Conditional Leave to appeal to Privy Council
in 8. C. 57JD. C. Colombo, 12380fS
Privy Council—Appeal to Supreme Court—Rejection on ground of abatement—Incapa-city of appellant to apply for conditional leave to appeal to Privy Council—Civil Appellate Rules, 1938, Rules 2 (1), 4 (2)—Appeals (Privy Council) Ordi-nance, 88. 2, 3, Schedule, Rule 1—Supreme Court Appeals (Special Provision)Act No. 4 of 1950.
Where an appeal to the Supreme Court, which was lodged before the SupremeCourt Appeals (Special Provision) Act No. 4 of 1960 was enacted, was rejectedon the ground that it had abated by operation of Rule 4 (2) of the Civil AppellateRules, 1938—
Held, that the appellant was not entitled to moke an application tothe Supreme Court for conditional leave to appeal to the Privy Council.
Application for conditional leave to appeal to the Privy Council.n. V. Perera, Q.C., with S. Sharvananda, for Petitioner-Appellant.
E. B. Wikramanayake, Q.C., with H. A. Koattegoda, 0. T. Samera-uickreme and R. Bandaranayake, for Plaintiff-Respondent.
Cur. adv. milt.
22
BASNAYAKE, C.J.—Peiris v. Dassenaike
March 16, 1902. Basnayake, C.J.—
The question that arises for decision on this application for leave toappeal to the Privy Council is whether such an application lies in theinstant case.
. The petitioner sought to appeal to this Court from the judgment ofthe District Court; but he failed to comply with the requirements ofBuie 2 (1) of the Civil Appellate Rules 1938, and on objection taken by-counsel the appeal was rejected on 17th May 1960 as it was deemed tohave abated by operation of Rule 4 of those Rules, ihe Appeals (PrivyCouncil) Ordinance provides for an appeal to the Privy Council againstjudgments and orders of the Supreme Court (s.3). The expression“ judgment ” is used in the Ordinance in the sense of “ a decree, order,sentence or decision ” (s.2). An appeal lies—
“ (a) as of right, from any final judgment of the Court, where the matterin dispute on the appeal amounts to or is of the value of fivethousand rupees or upwards, or where the appeal involvesdirectly or indirectly some claim or question to or respectingproperty or some civil right amounting to or of the value of fivethousand rupees or upwards ; and
(&) at the discretion of the Court, from any other judgment of theCourt, whether final or interlocutory, if, in the opinion of theCourt, the question involved in the appeal is one which, byreason of its great general or public importance or otherwise,ought to be submitted to His Majesty in Council for decision. ”(Rule 1—Schedule).
In the instant case there was no appeal before this Court as it hadabated by operation of law. The effect of abatement in legal procedureis thus stated in Sweet’s Law Dictionary—
, “In procedure, abatement is where an action is put an end to anddestroyed by the death of one of the parties, or some other event which* makes it impossible to continue the action. ”
– Bouvier’s Law Dictionary in setting out the distinction between abate-ment in Chancery Practice and in law states—1
“ It differs from abatement at law in this ; that in the latter, theaction is entirely dead and cannot be revived ; but in the former, theright to proceed is merely suspended, and may be revived by asupplemental bill in the nature of a bill of revivor. ”
What we have here is an abatement at law.
SUSTISTETAMJBY, J.— Peiris v. Dassenaike
23
Although it is an appeal and not an action in the Oourt of first instancethe consequence of abatement is the same whether it be ah appeal or anaction and the appeal if ever it was in existence came to an end on abate-ment. As this appeal was lodged long before the Supreme Court Appeals(Special Provision) Act No. 4 of 1960, the record of the case should nothave been forwarded by the District Court to this Court because theconsequence of the abatement of the appeal by operation of Rule 4 (2)was that it ceased to be an appeal. When this Court made order rejectingthe appeal it gave formal expression to the fact that there was no appealbefore it and the order it made was not a judgment or order in the case.The petitioner cannot for that reason be in a better position than he wouldhave been if the District Judge did not forwaid the appeal on the groundthat it had abated or if the Registiai had not listed it as it was not anappeal that should properly be included in the list of appeals for hearing.
I am of opinion that the petitioner is not entitled to the leave he seeks.TTis application is accordingly refused with costs.
H. N. G. Fernando, J.—J agree.
SlNNETAMBY, J.
I agree with My Lord the Chief Justice that this application should berefused. The petitioner-appellant had intervened in an action betweenthe plaintiff-respondent and the defendant-respondent in the course ofexecution proceedings. The defendant-respondent had transferred acertain property to the petitioner-appellant which, at that time, wasalleged to have been under seizure upon a writ issued by the plaintiff-respondent. The property was subsequently sold under the writ andpurchased by the plaintiff-respondent. The petitioner appellant movedto set aside the sale and the District Judge refused his application.Against that refusal he filed a petition of appeal but failed to comply withthe requirements of Rule 2 (1) of the Civil Appellate Rules 1938. UnderRule 4, the failure of the appellant to comply with the provisions ofRule 2 (1) abates the appeal. It has been held by this Court that theabatement in such a situation takes place by operation of law and thatthe formal order of abatement which the District Judge makes in pur-suance thereof is merely a ministerial act, Palaniappa Chettiar et al. v.Mercantile BanJc1. Irrespective, therefore, of whether a formal Older ismade or not, in law, the appeal has abated. In this particular case, noformal order appears to have been made by the District Judge; butwhen the appeal came up before this Court, it was rejected. In Fernandov. Samaranayake2 a similar situation arose and Weerasooriya, J.who delivered' the judgment of the Court stated that thereshould be a formal order of abatement before an appeal can be regardedas having abated. With this view, I find myself unable to agree. Rule4 itself states that on failure to comply with the requirements of Rule 2the appeal is deemed to have abated and; in my view, no further steps can
» (1941) 43 N. L. R. 127.
2 (1960) 62 N. L. R. 397.
24
SINNETAMBY, J.— Peiris v. Dassenaike
be thereafter taken. It is for that reason that the Supreme Court, insuch a case, does not “ dismiss ” an appeal but only “ rejects ” it. Theword “ dismiss ” is, I venture to think, used in the case of valid appealswhich are pending and the word “ reject ” in cases where in strict lawthere is no valid appeal.before the Court. In these circumstances, therefore',it seems to me that the rejection of an appeal is not a final order or ajudgment affecting the appeal against which an application can be madefor leave to appeal to the Piivy Council. Once an appeal is deemed tohave abated, I agree with My Lord the Chief Justice that the entire casecomes to an end and no further steps can be taken until the action isrevived by a successful application to have the abatement set aside.
Application refused. .