127-NLR-NLR-V-23-BASNAYAKE-HAMINE-et-al-v.-PATHIRATNE.pdf
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Present: Bertram C.J% and De Sampayo J.BASNAYAKE HAMTNE et dL v. PATHTRATNE.
73—D. G. (Into/.) Colombo, 52,525.
Appeal—Security for costa—Formal tender on date specified in noticenot mode—Civil Procedure Code, a. 756.
The appellant did not “ forthwith ” give notice to the respondentthat he would on a specified day tender security as directed by theCourt. Instead of this, he gave the respondent notice that hewas paying a certain sum into Court as security. On the datefixed in the notice the appellant did not maka formal tender.
Held, that the provisions of section 766 were not complied with.The appeal was struck out.
W. Perera, for the appellant.
M. W. H. de Silva, for the respondent.
October 11,1921. Bsbxbam C.J.—
In this case we are in a position of being compelled to enforce apreliminary objection under section 766 of the Civil Procedure Code.Our previous decisions have pointed out that we have no alternative,but to construe the terms of this section rigorously. The appellantin this case did not forthwith give notice to the respondent that he16*
1921.
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would on a day to be specified, in the notioe tender security asdirected by the Court. Instead of this, he gave the respondentnotice that he was paying a certain sum into Court as security. Nodoubt this would have been quite as useful to the respondent, but itwas not what the Code requires. The appellant appears to haveanticipated that the respondent would oonsent to this deposit, andthat this notioe would be accepted as the notice required by thesection. But this did not happen. The respondent struck out thewords ♦* I consent,” and substituted the words “ received notice.”On this being done, the appellant Gught to have made a formaltender on the date fixed in the notice. He omitted to do this, andmust unfortunately suffer for the omission. The preliminaryobjection must, therefore, be allowed, with costs, and the appealstruck out.
De Sahpayo J.—I agree.
Appeal dismissed.