130-NLR-NLR-V-23-MISSIE-NONNA-v.-PEDRIC-et-al.pdf
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mSSIE NONA v. PEDRIC U at.
66—D. O. KaUUara, 9,18$.
Notice of tender of security—Costs of appeal.
Wijcmanne, for the appellants.
H. V. Perera, for the respondents*
October 28,1921. Bkbtbam O.J.—
This is another technical objection tinder section 756 of the Civil ProcedureCode, Notice of tendering security waa not given “ forthwith/* but was givenatleast&daytor, perhaps, two days later. While we can allow latitudein caseswhere our decision in Fernando v. Nikulan Appu, (1922) 22 N. L. R. 1,has not reached the parties affected, I fear it roust be considered that in thiscase a sufficient interval had passed for this purpose. Further, no date wasfixed hi the only notice which is filed for objections tc be lodged by the re-spondent. In a case decided yesterday, we upheld both these technicalobjections as good, and we must, unfortunately, take the same course to-day.
Mr. H. V. Perera, on the question of costs, has drawn our attention to thecase of Silva v. Appuhamy, (1921) 2 N. L. R. 106, and has said that thisdistinguishes the earlier case of Kangany v. Ramasamy Rajah, (1920) 1 C. W. R.284* I do not think that the former case (Silva v. Appuhamy (supra)) inany way derogates from the effect of the other. . In Silva v. 'Appuhamy (supra)the defect was one which could only be discovered by an investigation of therecord which the Court declared the respondent was under no obligation tomake. In Kangany t». Ramasamy Rajah (supra) the defect was one whichwould, ipso facto, be brought to the notice of the respondent by his receipt ofthe notice of appeal The same is true of the present case, and I think weshould follow Kangany v. Ramasamy Rajah (supra) and dismiss the appeal,making no order as to costs.—i.
De Sampayo J.—I agree.