v.MOHAMADU AMEER AND OTHERS
COURT OF APPEAL,
PALAKIDNAR, J. AND SENANAYAKE. J..
C. A. No. 205/81 (F): D.C. KEGALLE No. 18724/P.
SEPTEMBER 19, 1990.
Failure to deposit security and hypothecate it by bond – Section 759(2) of the Civil
Money for security should be by deposit and hypothecation by bond. Failure to do this isfatal to the appeal. The defect cannot be cured by invoking S. 759 (2) of the CivilProcedure Code
Cases referred to:
Dona Sisiliyana V. Kamala Piyaseeli  1 Sri L. R. 226
PRELIMINARY OBJECTION to appealFaiz Mustapha, P.C. for defendant-appellant.
C. R. Gunaratne, P.C. with A. A. de Silva for plaintiff-respondent.
M. S. A. Hasson for 6 th defendant-respondent.
Cur. adv. vult.
September 21,1990PALAKIDNAR, J.
At the hearing of this appeal a preliminary objection was taken thatthe bond for the security for costs was not hypothecated. Section 757of Civil Procedure Code relating to this matter states that the money forsecurity should be by deposit and hypothecation by bond. If thehypothecation is not done the full requirement of this Section is not metand therefore the compliance is incomplete. The failure to comply withthe requirement of Section 755 (2) is fatal to the appeal and it'has beenheld repeatedly by this court that it cannot be cured by Section 759 (2)of Civil Procedure Code. In Dona Sisiliyana v. Kamala Piyaseeli (1)Gurrawardana, J. held that it was not possible to invoke Section 759 (2)to cure the defect. The facts in this case pertaining to this objectionshow that no explanation for the failure to hypothecate of the money hasbeen given. The appeal itself was filed in 1981. Therefore if this casewere to be sent back to rectify this defect great prejudice will be causedby considerable delay involved in such a step.
We therefore uphold the^preliminary objection and reject this appeal.The appellant will pay the respondent Rs. 315 as costs.
SENANAYAKA, J. – I agree.
Preliminary objection upheld.
NOORDEEN LEBBE v. MOHAMADU AMEER AND OTHERS