Full Judgment
Bayley, J.
1. I think we must reject this application. No doubt Section 38 of the Act does not say, in express words, that an application for re-hearing under that section must be in writing, but reading that section with Section 71 I think we must hold that the intention was that such an application should be in writing. If, however, there was any doubt about the matter, I think the doubt has been cleared up by the rule (No. 208) framed by the Judges of this Court, which provides that the application shall be by petition. We are now asked to say that this rule is ultra vires. We are not prepared to come to that conclusion.
2. Then, what are the circumstances under which this application is made? We find that although the application was nominally made on the 16th December, the petition was not signed or declared until the 17th December; that the affidavit in support of it was not filed until two or three days subsequently; and that the fees were not paid until the 20th December. Even assuming that Section 5 of the Limitation Act (XV of 1877) applies to such a case as this, I do not think that any facts are shown to justify us in exercising the discretion given to us by that section in favour of the applicant. I think the application must be rejected.
Scott, J.
3. I concur. I am also of opinion that if Section 5 of the Limitation Act applies, there are no circumstances here which should induce us to extend the time prescribed by Section 38 for making such an application as the present.
4. I think, also, that it should be clearly understood that, although this application was nominally made on the 16th December, it was only provisionally received; and that every objection to its reception which could have been taken on that day can be taken now. The subsequent compliance by the petitioner with the requirements of the Act cannot place him in a better position than he occupied when the application was made. There is no doubt that if these objections had been then taken, the application must have been rejected, and, consequently, I think we must reject the application now.