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Present : Ennis J. and Shaw J.WICKREMARATNE v. FERNANDO.
121—D. 0. Colombo, 44,863.
Appeal—Money deposited in Court for respondent’s costs of appeal—Nohypothecation—Civil Procedure Code, s. 767.
The appellant moved to deposit in Court a sum of Bs. 76as security for the respondent’s costs in appeal, and the proctor forrespondent consented. The appellant's bond did not purportto
be a hypothecation of tbe amount deposited; tbe form for a suretybond was filled up by the appellant as a personal undertaking topay a sum of Bs. 76.
Held, that the appeal was not duly perfected.
’ h h; facts appear in the judgment.
Bawa, K.C., and J. S. Jayawardene, for the appellant.
A. St. V. Jayawardene and Keuneman, for respondent.
July 10, 1918. Ennis J.—
A preliminary objection has been taken to this appeal on theground that the money deposited in Court had not been hypothecated.It appears that on March 14 the appellant moved to deposit inCourt a sum of Rs. 75, being security for the plaintiff-respondent'scosts in appeal, and the proctor for the respondent consented. Themoney was paid into the kachcheri on March 18, and notified tothe Court on March 19. On March 20 a bond was filled. This bonddoes not purport to be a hypothecation of the amount deposited.The form for a surety bond, has been taken and filled up by theappellant, as a personal undertaking to pay a sum of Rs. 75, andis nothing more. In a series of cases it has been held that theprovisions of section 756 must be. strictly complied with (see
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Kandappen v.. Elliott1 Charles v. Jandris,2 and Qunatileke v. Punchi-hamy 3). The last of these cases seems to have been one very similarto the present, where a sum of money was tendered as security forthe respondent’s costs in appeal, but no bond hypothecating themoney was executed, as required by section 757. There an inquirywas made as to whether the execution of the bond had been dispensedwith, with a view to ascertaining whether there had been a waiverof the requirements of section 756, and it has been suggested in thepresent case that the respondent, by consenting to the appellant’smotion of March 14, waived the execution of a bond hypothecating'the amount. I am unable to see how this contention can hold good,because it appears that on March 14 the cash had not been paid intoCourt, and the consent could only be a consent to the security beingperfected on the lines indicated, namely, by a subsequent depositand hypothecation, as provided in section 757. In my opinion, theobjection is good, and the appeal abates. The respondent is entitledto the costs of this appeal.
Shaw J.—I agree.
WICKREMARATNE v. FERNANDO