AKBAR J.—Ramalingam v. Velupillai.
1936Present: Akbar J.
RAMALINGAM v. VELUPILLAI et al.
88-89—C. R. Trincomalee, 4,123.
Appeal—Security for respondents’ costs—Failure to give notice forthwith—Power to grant relief—Civil Procedure Code, s. 756.
Where a party-appellant failed to give notice of security for respond-ents’ costs forthwith as required by section 756 of the Civil ProcedureCode, the appellant may be given relief under the amendment to thesection introduced by Ordinance No. 42 of 1921.
PPEAL from all order of the Commissioner of Requests, Trinco-malee.
N.E. Weerasooria (with him E. B. Wickremenayake), for plaintiff,appellant.
No appearance for defendant, respondents.
July 2, 1936. Akbah J.—
This was an action brought by the plaintiff on a promissory note onMarch 23, 1936. The learned Commissioner dismissed the plaintiff’saction with costs.
Under section 754 of the Civil Procedure Code the petition of appealhas to be presented within a period of seven days from the date of theorder appealed against. That same section directs that in reckoningthese seven days the date of the decree is to be excluded and also thedate when the petition is presented, and also all Sundays and PublicHolidays. If we exclude March 23 in reckoning these seven days,
AKBAR J.—Ramalingam v. Velupillai.
and also one Sunday intervening, the plaintiff had time till April 1to file his petition of appeal. As a matter of fact he filed his petitionof appeal on March 31, 1936, which the learned Commissioner thoughtin his judgment was the very last date on which petition of appeal hadto be filed.
The proctor for the plaintiff tendered notice of security for costs to beissued on the defendants to the Court. On April 3, 1936, objection wastaken that this notice was not tendered as contemplated by section 756of the Civil Procedure Code. Section 756 is to the effect that when apetition of appeal has been received the petitioner has “ forthwith ” togive notice to the respondent of the security which he proposes to give tothe Court- The objection I take it was based, on the footing that thenotice having been tendered on April 3, it could not be said to havebedn issued “forthwith ” within the meaning of .section 756.
It will be seen from the judgment of the Supreme Court in Fernando v.Nikulanappu1 that the Chief Justice although he construed the word“forthwith” very strictly in that particular case was not prepared todeclare that the delay of one day prevented him from holding that thenotice was given “ forth ” within the meaning of the section. Butany difficulty that there may be on the question was set at rest by theamendment of section 756 by Ordinance No. 42 of 1921, giving power to theSupreme Court to grant relief in case of any mistake, omission, or defecton the part of the appellant in complying with the provisions of section756 if the Court is of the opinion that the respondent has not beenmaterially prejudiced. My brother Drieberg, who in the case of Silva v.Goonesekere * quoted from the statement of objects and reasons attachedto Ordinance No. 42 of 1921, before it was passed, said that this Courthas got the power to grant relief.
There is no appearance for the respondent in this appeal and as I cannotconceive of any material prejudice in giving relief in this particular case,I would grant such relief and direct that the costs of this appeal shall becosts in the whole cause.
The order of the learned Commissioner is set aside and the case sentback for steps to be taken in due course.
1 32 N. L. R. 1.
* 31 N. L. R. 184.
RAMALINGAM v. VELUPILLAI et al