106-NLR-NLR-V-58-USOOF-et-al.-Petitioners-and-NADARAJAH-CHETTIAR-et-al.-Respondents.pdf
1957Present: Weerasooriya, J., and Sansoni, J.
USOOF et al., Petitioners, and NADARAJAHCHETTIAR et al., Respondents
S.O. Application 183—Conditional Leave to appealto the Privy Council in S.C. 1S9/D.C. Colombo, 24,OSS
Privy Council—Application for conditional leave to appeal—Must be properlystamped—"Pinal judgment"—Stamp Ordinance (Cap. ISO), s. 35—TheAppeals (Privy Council) Ordinance (Cap. So), Schedule, Pules 1 (n) and 2.
An Application for conditional leave to appeal (o tho Privy Council which isinsufficiently stampod will bo rejected even if it is filed in time and tho defi-ciency in stamp duty is subsequently mndo good by tho applicant but aftertho expiry of tho period of thirty, days prescribed in Rule 2 of the Scheduleto tho Appeals (Privy Council) Ordinance.
A judgment of the Supremo Court dismissing an appeal from an order of aDistrict Court refusing to set aside a sale of property seized in oxecution of adecree is a “ final judgment ” within the meaning of Rule 1 (a) of tho Schedule.
^^-PPLICATION for conditional leave to appeal to the Privy Council.
Sir Lalita Rajapakse, Q.C., with HI. Markhani, for tho petitioners.
C. 'l'hiayalingam, Q.C., with T. Parathalingam, for the respondents.
Cur. adv. vult.
March 22, 1957. Weerasooriya, J.—
Two objections were taken by learned counsel for the respondentsagainst this application being granted. One of them was that thejudgment sought to be appealed from is not a “ filial judgment ” withinthe meaning of Ride 1 (a) of the rules contained in the Schedule to TheAppeals (Privy Council) Ordinance (Cap. So).
The petitioners seek to appeal from the judgment of this Court dis-missing an appeal from the order of the District Court refusing to setaside a sale of a land called Alawwa Estate belonging to the petitioners.The sale took place in execution of a decree which had been enteredagainst them in the case.•
The objection raised seems to be covered by the decision in Subra-maniam Chelty v. Soysa 1 where this Court had reversed in appeal anorder of the District Court disallowing an application made by an execu-tion creditor to set aside (on the ground of material irregularity) a saleof certain property seized in execution of a writ in his favour. Thematter subsequently came up again in the form of an application forleave to appeal to the Privy Council from the Judgment of this Court,and the question arose whether that judgment was a final judgment.The majority of a bench of three Judges held it was. This decisionis binding on us. The objection must, therefore, be overruled.
1 (1923) 2-5 A7. A. P. 344.
The other objection relates'to a question of stamp duty. It is common ;ground that the application for conditional leave was insufficientlystamped when it was filed. The deficiency in stamp duty was sub-sequently made good by the applicants but after the expiry of the periodof thirty days provided in Rule 2 of the Schedule referred to for the-making of the application, although the application itself was filed in •timo. In these circumstances it is contended for the respondents thatthe .application for leave to appeal must be rejected. This matter tooappears to be covered by previous authority. It was held by a benchof two Judges in British Ceylon Corporation Ltd. r. The- United ShippingBoard 1 that where a petition of appeal to this Court- from the DistrictCourt was insufficiently stamped the appeal should be rejected. Thejudgment, in that case followed certain earlier decisions referred totherein, one of which is Hurst v. Attorney General 2, also a decision oftwo Judges, where Ennis J., in delivering the judgment of the Courtdismissing an appeal on the ground that the petition of appeal was notcorrectly stamped, stated : “ I would add that section 36 (now section 35)of the Stamp Ordinance prohibits the Court from acting upon theinstrument, and there is no proviso or any provision in the Stamp Ordi-nance allowing the defect to be cured other than possibly section 43These decisions were followed by another bench of two Judges inJames v. Karunaralnc a.
Section 35 of the Stamp Ordinance (Gap. 1S9) provides as follows :
“ 2vo instrument chargeable with duty shall be admitted in evidencefor any purpose bj- any person having by law or consent of partiesauthority to receive evidence, or shall he acted upon, registered, orauthenticated by any such person or by any public officer, unless such,instrument is duly stamped ”. I respectfully agree with the observe -tions of Ennis, J., in Hurst v. Attorney General {supra} that the effectof the latter part of this provision is to preclude a Court from acting-on a petition of appeal unless it is properly stamped. These observa-tions are equally applicable to the petition for leave to appeal in thepresent case.
Paragraph (a) of the proviso to section 35 contains provision for aninstrument (other than one chargeable with a duty of six cents only or abill of exchange or promissory note) being admitted in evidence on pay-ment of the duty with which it is chargeable or, in the case of an instru-ment. insufficiently stanqjed, of the amount required to make up theduty. Learned counsel for the petitioners did not contend that thisprovision covered the case but he urged that the objection under considera-tion should be overruled on the ground that no prejudice has beencaused to the respondents, and he referred us to certain observationsof Lord Goddard in delivering the judgment of the Judicial Committeeof the Privy Council in Bilindi et at. v. Wellaica Attadassi Tkero 4 that“■ it would be an unfortunate and probably unintended result of theStamp Ordinance if a litigant should be debarred from an appeal on aground (of the insufficiency of the stamp) which is from a practical
point of view capable of easy remedy without injustice to anyone ”•It is clear, however,, from what precedes those observations that he did'not intend to give expression to a finding or an opinion on the questionwhether the appeal should be rejected or not on such a ground. More-over, it does not appear that his attention had been drawn to section 35of the Stamp Ordinance (Cap. 189).
The application for leave to appeal is rejected with costs.
Saxsoxx, J.—I agree.
Application rejected.
1 {1934) 39 N. L. It. 225.3 (193-5j 37 ~V. L. It. 154.
3 {1917) 4 n. ir. It. 265.1 {1915) 47 N. L,. R. 7.
2*J. X. B G6337 (0;57)