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Present : Bertram C.J. and Garvin J.
BABUNAPPUHAMY v. DON DAVTTH.
4—D. C. Tangdlla, 1,912.
Security for performance of a judgment or order—Forfeiture of bond in thesame proceeding—Court cannot order surety to jmy more than theamount of the bond.
Where security has been given for the performance by a partyto a legal proceeding of a judgment or order in sueli proceeding,application may be made in tlic same proceeding for the forfeitureof the bond. Upon such an application what the Court shoulddo is to'order the forfeiture of the bond, and the forfeiture or thebond implies solely anil simply, unless on equitable grounds * somemitigation of the penalty is ordered—the payment of the penalsum and nothing else. The Court is not entitled to go beyondthe penal Bum and order the surety to pay the actual amount ofthe costs.
HIS appellant stood surety for the plaintiff who lived outsidethe jurisdiction of the Court, and bound himself as surety for
the payment by plaintiff of defendant’s costs.
The plaintiff having lost, the appellant paid Ks. 100 as promised,but the defendant claimed that the appellant should pay theentire costs. The District Judge (It. B, Naish, Esq.) upheld thiscontention.
The surety appealed.
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The bond was as follows: —_
We, Banawtera Kankananage Babun Appuhamy of Ha ku rowel a asprincipal, and Sion Hendrick Seneviratna Gunawardana Bandara of Don DavtthHakurawela as anrety, arejointly-andseverally heldantifirmly bound
onto Mr, P. E. Kalupahana, Secretary of the Piatriot Court of Tangalla,in the penal sum of Bs. 100 to.be paid to the. said' Mr. P. E. Kalupahana,or his successors of the said office of tbe Secretary, for which payment,to be well and faithfullymade,webind Ourselvesandeach of ns,
our and each of our heirs, executors, and administrators firmly bythesd presents, hereby renouncingthebenefieium ordinis,divisionia et
excussionis, and all benefits to . which sureties are otherwise by lawentitled.
Whereas by order datedApril26,1021, made intbeabove-named
action, wherein Banaweera Kankanange Babun Appnhamy of Hakuro-wela is plaintiff, and Jayasekara Patiranage Don Davith, Police Officerof Hakuru wela is defendant. It was on the application of defendant'sproctor in the said ‘action ordered to give security for the payment ofdefendant’s costs in the said action already incurred, and are likely tobe. incurred, and whereas the ahpve-bounden Banaweera KankananageBabun Appuhamy and Don Hendrick Seneviratna Gunawardana Ban-dara have agreed to enter into the above-written obligation', subjectto the condition hereinafter contained.
How the condition of the above-written bond or obligation is suchthat if the above-bounden Banaweera Kankananage Babun Appuhamy andDon Hendrick Seneviratna Gunawardana Bandara, or either ofthem, their or either of their heirs, executors, or administrators,do and shall well* and truly pay or cause to be paid to the defendantor to his Proctor in the said action, all such costs as the said Court shallthink fit to award to the said defendant in the said action, then the above-written obligation to be void, or else to remain in full force andvirtue.
Tangalla, May 3, 1921.
(Signed in Sinhalese,)Principal,
D. H. Si G. Bandaba, Surety.
M. W. H. de Silva, for the surety, appellant.
Soertsz, for the defendant, respondent.
February 19, 1923. Bertram C.J—.
In this case the learned Judge appears to have made an erroneousorder. The appellant entered into a bond of security for thepayment of costs. The costs were estimated by both parties as.not likely to exceed Bs. 100, and the penal sum in the bond wasaccordingly fixed at that amount. I need not discuss minutelythe circumstances under which * the bond came to be given, butthere seems to be no doubt that on the authority of the ease ofSuppramaniam Chetty v. Gabriel Fernando,1 which proceeded on
* (1904) 8 N. L. B. 42.
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Babmappu-hamy v.Don Davith
-an earlier authority in (Grenier's Report* D. C. 1,873, p. 79)that, where security has been given for the performance by aparty to a legal proceeding of a judgment or order in such proceed-ing, application may be made in the same proceeding for theforfeiture of the bond. No application in this case was made -in those precise terms. But this is the only manner in which thisapplication can be rightly made, and .the application actuallymade must, for the purpose of this appeal, be treated as so made.Upon such an application what the Court should do is to order theforfeiture of the bond, and the forfeiture of the bond implies solelyand simply, unless on equitable grounds some mitigation of thepenalty is ordered, the payment of the penal sum and nothing else.It appears to me, therefore, that that was the only order whichthe District Judge could make in this case. He was not entitledto*go beyond the penal sum and order the'surety to pay the actualamount of the costs incurred. This is a well-settled principle,and will be found enunciated in the Article on Bonds in Halsbury'sLaws of England, Vol. III., p. 93, section 192.
Iq my opinion, therefore, the appeal must be allowed with costs,here and below.
Garvin J.—I agree.
BABUNAPPUHAMY v. DON DAVITH