Frederick William Gentle, C.J.
1. In this civil miscellaneous petition the applicants seek to be made parties to an appeal now pending before His Majesty in Council. The first applicant was a party to all the proceedings which have now eventuated in the appeal to the Judicial Committee, but throughout he entered no appearance, and remained ex parte. He appears to have been a financier of one of the parties in the litigation and his present object is to obtain more moneys in addition to what he has already received as consideration for financing the litigation. The other applicants are his sons.
2. The appeal was admitted nearly three years ago. The records were printed in India, were transmitted to the Privy Council in December, 1946, and were received there on the 17th January, 1947, as evidenced by a better of that date from the Registrar of the Privy Council to the Registrar of this Court acknowledging the receipt of the records of the proceedings and stating that the appeal has been registered as Privy Council Appeal No. 10 of 1947.
3. It is in those circumstances that the application is made to this Court to add the petitioners as parties to the appeal which has now reached the Judicial Committee, even if the petition of appeal has not been formally lodged.
4. Learned Counsel for the applicants was unable to indicate any rule or any authority which lends support to this application being made after the records have been transmitted to England and after they have been received and acknowledged by the Privy Council. Reference during the argument was made to Haidar Ali v. Tasaduk Rasul : Exparte Haider Ali a decision of the Judicial Committee in 1888. In that case, there had been a change in a party to the appeal either by death or by alteration of status requiring a representative to be brought on record to represent the original party. Their Lordships of the Judicial Committee observed that evidence being required as to the representative character of the person alleged to occupy that position, such evidence should be obtained in India and transmitted to the Judicial Committee. Another case referred to was Jadunandan Koer v. Ramjiban Lal (1908) 4 I.C. 454. There, an application was made to the High Court at Calcutta in a pending appeal to the Judicial Committee, the records of which had not been transmitted to England, for substitution by reason of the death of a party or a change in status. Following a number of decisions, to which reference was made, the opinion was expressed that the Court had authority in that case since the records had not been transmitted.
5. Rules 13 and 14 of the Judicial Committee Rules of 1920 provide for substitution of representatives of parties in an appeal to the Privy Council before the records have been transmitted and after that has taken place. Rule 14 provides that where, subsequent to the despatch to England of the record, it becomes defective by reason of death, or change of status, of a party to the appeal, the Court from which the appeal is proceeding may, on the application of a person interested, cause a certificate to be transmitted to the Registrar of the Privy Council showing who, in the opinion of the Court, is the proper person to be substituted or entered on the record, in place of, or in addition to, the party who has died, or undergone a change of status. It is clear that where an application is necessary for substitution of a party after the record has been despatched, the application itself is not dealt with by the Court. It merely enquires into, and expresses findings of, fact upon which it reports, and that report is sent to the Judicial Committee for that tribunal to dispose of the application. In the present instance a finding of fact is not required to be certified by this Court. If there was a general right for an application of the present sort to be made, there must also be an equal right with regard to substitution of legal representatives, and there would have been no need for either Rule 13 or Rule 14 of the Judicial Committee Rules of 1920.
6. Reliance for the present application was sought to be placed on Rule 119(1) of the Appellate Side Rules of this High Court. All that that rule provides is that any supplemental record dealing with the addition of a party shall be transmitted to the Registrar of the Privy Council in manuscripts instead of being printed. The effect of that rule is to excuse the printing of any supplemental record, and It provides for nothing else.
7. There can be no doubt that when the records reach the Privy Council, the Board has seisin of the appeal. Firstly, the appeal is given a number, in this case No. 10 of 1947. Secondly, pursuant to Rule 34 of the Judicial Committee Rules, 1925, unless the appellant takes steps to prosecute the appeal within four months of the receipt of the records by the Judicial Committee, the appeal shall be dismissed. The appeal itself could not be dismissed unless the Judicial Committee had cognizance of it. Intimation of the consequences of non-prosecution is expressed in the letter from the Registrar of the Privy Council dated 17th January, 1947, to which reference has already been made.
8. In the absence of any authority either by way of a rule or decision expressed in any case, in my opinion, the present application does not lie to this Court; and for that reason and for those previously expressed, in my view, it should be dismissed with costs.
9. I agree.