047-NLR-NLR-V-16-CHARLES-v.-JANDRIS.pdf
( 159 )
Present: Lascelles C.J. and De Sampayo A.J.CHARLES v. JANDRIS.
98—D. C. Matara, 1,853.
Appeal—Security for costa—Notice to respondent not served—Conditionalacceptance of security irregular—Civil Procedure Code, s. 756.
The decree in this ease was entered on May 9. The petition ofappeal was filed on May 23, and notice of security was issued on thesame day, returnable on May 31. On the 31st the notioe was returnedfor an extension, which was allowed for June 4. On June 4 noticewas returned unserved for want of time. On' June 4 seourity wastendered by the appellant’s proctor, and was accepted' by the Courtsubject to any objection by the respondent.
Held, that the conditional acceptance was bad, as notice hadnot been served on the respondent.
'jp HE faots appear from the judgment.
Drieberg (with him Wadsworth), for the appellant.
A. St. V. Jayewardene, for the respondent.
July 19,1912. Lascelles C.J.—
In this case a somewhat technical objection has been raised tothe entertainment of this appeal. The order appealed from wasdated May 9. The appellant had then, under section 756 of theCivil Procedure Code, twenty days within which to perfect hissecurity. The petition of appeal was filed on May 23, and a motionwas made on that day that the giving of security should be fixed forthe 31st, and notice of security and stamps were tendered at thesame time. The notice was issued on the same day, returnable onthe 31st. On May 31 the notice on the respondent was returned foran extension, which was allowed for June 4. On June 4 the noticewas returned unserved for want of time. On June 4 security wastendered by the appellant’s proctor, and was accepted by the Courtsubject to any objection by the respondent. The respondent nowcontends that the conditional acceptance of the security by theDistrict Judge was no such acceptance as is contemplated by section756, because notice had not been served on the respondent. Theobjection is no doubt highly technical, but I am of opinion that itmust nevertheless prevail. Section 756 provides that when thepetition of appeal has been received by the Court of first instance,the petitioner shall forthwith give notice to the respondent that hewill on a day specified in the notice, and within a period of twenty
1M8.
1919*
liASOELLES
OJ.
Charles ©.Jandris
( 160 )
days, tender the security for the respondent’s costs of appeal*. Then,the respondent is allowed to be heard to show cause, if any, againstthe acceptance of the security, and if the security is accepted andthe deposit is made, the Court again issues notice of appeal forservice on the respondent. It is clear that the object of this proce-dure is to give the respondent an opportunity of objecting to anysecurity if he deems it insufficient. The provision is an importantand necessary one- for the protection of respondents to appeals, andit is beyond our power to say that this portion of the section can beignored. The case of Kandappen v. Elliott1 is an authority for theproposition that section 756 of the Code must be strictly enforced*Although the present case may be a hard one, it is impossible for usto make any exception in favour of the appellant, and I think it isclear that the conditional acceptance of the security when no noticehad been served on the respondent amounted to no acceptance atall, and that the provisions of section 756 haye not been compliedwith. I think the objection prevails and the appeal abates.
It may be that the appellant may have grounds on which he maybe able to obtain leave to appeal notwithstanding lapse of time,but on that I desire to express no opinion now. The appeal abates.The respondent is, I think, entitled to have the costs of the appeal.
De Sampayo A.J.—
I entirely agree. I wish, however, to add that this case is onemore illustration of the mischief caused by the failure on the partof practitioners to take advantage of the facilities provided in theCivil Procedure Code for service of notice. The respondent wasrepresented by a proctor in the Court below, and it was quite opento the appellant to have served the notice of appeal on that proctor.If that had been done, I have no doubt the notice would have beenserved quite in time so as to observe the provisions of section 756.
12 C. L. R. 17.