DALTON S.P.J.—Ammal v. Mohideen.
1933Present: Dalton S.P.J. and Drieberg J. .
AMMAL et al, v. MOHIDEEN et al.
193—D. C. (Inty.) Colombo, 27,656.
Appeal—Some respondents made parties to appeal—Notice of appeal and- security not given—Powers of Supreme Court to issue notice to res-pondents—Civil Procedure Code, ss. 756 and 770.
Where an appellant had made some of the parties respondents to theappeal but had failed, in regard to them, to comply with the require-ments of section 756 of the Civil Procedure Code,—
Held, that the Supreme Court would not exercise its powers undersection 770 of the Civil Proccdinrc Code directing notice to issue onthe said respondents.
PPEAL from a judgment of the District Judge of Colombo.
Hayley, K.C. (with him Nadaraja), for plaintiffs, appellant.
H. V. Perera (with him Nagalingam), for fifth, tenth, and eleventhdefendants, respondent. |
May 18,1933. Dalton S.P.J.—
This is an appeal by the plaintiffs-appellants.But objection has been
taken that certain of the respondents to the appeal are not before the.
Delivered by LORD ATKIN.—Adaikappa Chettiar v. Thos. Cook & Son. 443
Court and that the appellants have failed' to comply with the pro-visions of section 756 of the Civil Procedure Code and to bring them beforethe Court. There are fifteen respondents to this appeal of Whom onlythree have been given notice of appeal.
The order appealed from is an order, amongst other things, dismissingthe plaintiffs’ action, and it is quite clear that if the appeal is allowedthat the respondents who are not before the Court would be materially*affected by any order allowing the appeal.
It has been urged on behalf of the appellants that they should nowhave an opportunity of giving notice of appeal to the twelve respondents;who are not here, under the provisions of section 770 of the Civil Proce-dure Code, but it would appear that certain steps which are required tobe taken before that notice of appeal is issued have not been taken by theappellants,, the first step being notice to tender security and to depositthe sum covering the costs of serving notice of appeal. The appellants,in other words, seem to have done nothing except make these othertwelve defendants, respondents to the appeal, as apparently necessaryparties to the appeal, but have not complied with any of the furtherprovisions of the Civil Procedure Code in respect of notices or otherwise.Section 770 therefore, even if notice of appeal was allowed to be servedupon the missing respondents, would not be sufficient to comply with thefurther requirements of section 756 of the Code. Section 770 does notappear to apply to such a case as this where no notice to tender securityhas been given. In that event the application under 770 will not curethe defeats in the constitution of the appeal and the result is that theappeal must be dismissed with costs.
jDrieberg J.—I agree.
AMMAL et al, v. MOHIDEEN et al