JOSEPH AND SALIM TABET, Appellairts-PlIJindDs v. RlZKALLA SHINOUDA, Respondent-Defendant
Appeal-Money paid into court-ReletUe of sum on finding of court below fItG
action not prosecuted with due diligence-Review on Appeal.
Civil Procedure-Money "aid into court-Reletue on failure of plmnfffI to
proceed with. due diligence.
When' money has been paid into the High Court and proceedings
stayed upon condition that the plaintiff should proceed with the action
with due diligence, and the court then orders the sum so paid in to be',
released upon a finding that due diligence has not been 'exhibited. the
Court of Appeal will not reverse the decision below without strong
grounds.
Appeal
July 3, 1920. Dun C.J.: This is an appeal from an order
made in this suit by His Honour Judge Peacock, releasing the sum
of LE.20 paid into court on February 20, 1919, in C.S. 210 of 1918,
in which the defendant in this action, who is the respondent in this
appeal, was plaintiff, and the plaintiffs in this action, who now appeal,
were the defendants.
The money was paid in to abide the result of this action, and
all proceedings in C.S. 210 of 1918 were to be stayed, provided the
present appellants proceeded with this action with due diligence.
This action concerns transactions which occurred at Gambeila
in August 1918, and there have necessarily been great delays, but
the judge has held that the present appellants have not proceeded
·Court: Dun, C.].
with this action with due diligence, and I am not disposed to dis-
agree with him.
In a case of this sort, where the judge before whom the. pro-
ceedings are taken comes to such a conclusion, I think there must be
strong grounds to justify a Court of Appeal in reversing his decision;
I do not see such grounds in this case and therefore I think this
appeal must be dismissed.
Williamson J.: I agree that the decision of the judge is right.
The question of the release of the money was in the discretion of
the judge. All the steps in this case came before him and he was
in the best position to judge. A special duty was imposed on the
plaintiffs to prosecute the case with diligence and I agree that they
have not fulfilled that duty. .
ppeal dismissed