BASUAYAKZB, C.J.—Kastivriarachchi v. Pini
1953Present:Basnayake, C.J., and Sansoni, J.TCAfi'rlJTfcTA'RAfTFrflH iJ Appellant, and PINI et al., Respondents
S. G. 330—D. G. KegcdU, 8468
Appeal—Security for costs of appeal—Acceptance thereof—Omission of Court torecord fact of acceptance—Effect—Civil Procedure Code, s. 756.
When security for costs of appeal is accepted in terms of section 756 of theCivil Procedure Code, there is no requirement that the fact of such acceptanceshould be expressly recorded by the Court though it is both prudent anddesirable that it should be done.
PPEAXi from a judgment of the District Court, Kegalle.
IV. E. Weerasooria, Q.G., with K. Herat, for Plaintiffs-Appellants.
B. Gunaratne, for 1st, 3rd, 4th and 5th Defendants-Respondents.
July 17, 1958. Basnayajee, C.J.—
Learned counsel for the respondents takes a preliminary objection tothe TiftA-ri-ng of this appeal on the ground that the requirements of section756 of the Civil Procedure Code have not been complied with as thecourt has made no order accepting the security for costs tendered by theappellants. The relevant journal entry of the 14th of May 1956 reads asfollows :—
“ 1. Notice of security served on the 1st defendant.
She is present.
Issue notice of appeal returnable 28.5.56.
Messrs Aturupana and Jayawardene, Proctors for plaintiffsmove for a Deposit Note for Rs. 150 being the sum theappellants want to hypothecate as security for costs of 1, 3,4 and 5 defendants. Issue D/N accordingly. ”
Section 756 provides among other matters that when a petition of appealhas been received by the court of first instance “ the petitioner shall givenotice to the respondent that he will tender security as hereinafterdirected for the respondent’s costs of appeal, and will deposit a sufficientsum of money to cover the expenses of serving notice of appeal oh therespondent. And on such day the respondent shall be heard to showcause if any against such security being accepted. And in the event ofsnch security being accepted and also the deposit made within suchperiod, then the court shall immediately issue notice of appeal togetherwith a copy of the petition of appeal …”
BASNAYAKTS, C.J.—Kaaturiarachchi v. Pini
In the instant case the bond was perfected as required by the sectionand the learned trial Judge made order that notice of appeal should beissued. The fact that the court issued notice of appeal is an indicationthat the security was accepted though the order did not state it in somany words. The action -the – Gourt is required to take is'to issuenotice of appeal and the event on which that action is to betaken is the acceptance of the security. It is reasonable to inferthat the Judge would not have issued the notice of appeal unlessthe security was accepted. There is no requirement that the fact ofthe acceptance of the security should be recorded though it is bothprudent and desirable that it should be done. The omission to do sodoes not amount to a failure to observe the requirements of section 756
In our opinion there has been no failure to comply with section 756 ofthe Givil Procedure Code and we accordingly overrule the preliminaryobjection.
Sawsoni, J.—I agree.
Preliminary objection overruled.
KASTURIARACHCHI, Appellant, and PINI et al , Respondent