004-NLR-NLR-V-61-D.-G.-WIJEMANNE-Appellant-and-C.-COSTA-Respondent.pdf
Wijemanne v. Costa,
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^959Present: Weerasooriya, J., and K. D. de Silva, J.
G. WIJEMANNE, Appellant, and C. COSTA, Respondent
S.O. 76, with Application 210—D. C. Panadura, 4,824
Appeal—Abatement—Security for costs—Hypothecation by bond prior to acceptanceof security by Court—Effect—Officers, before whom the bond may be executed-—Civil Procedure Code, ss. 756 (2) and (3), 757.
An order abating an appeal would be valid if the bond hypothecating securityfor costs of appeal in terms of section 756 (I) read with section 757 of the OivilProcedure Code is executed before the security is accepted by the Court.However, if the security given is in cash, relief may be granted under sub-section3 of section 756.
A bond hypothecating security for costs of appeal must be executed beforethe Judge or the Secretary or the Chief Clerk. A bond;, therefore, hypothe-cating a sum of money and signed before a Justice of the Peace is not a valid
hypothecation.
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K. 33. DE SILVA, J.—Wijemanne v. Costa
jAlPPEAL, -with, application in revision, from an order of the District-Court, Panadura.
V. Perera, Q.C., with E. A. G. de Silva and M. L. de Silva, for the*defendant-appellant.
Thiagalingam, Q.C., with T. P. P. Goonetillelce, for the plaintiff-respondent.
Cur. adv. vult.
August 6, 1959. K. D. de Silva, J.—
This is an application by the defendant-petitioner for the revision of theorder made by the District Judge, Panadura, on April 2, 1957 abating bmappeal filed on December 14, 1956 in D. C. Panadura Case No. 4,824.There is also an appeal from this order. It is appeal No. 76 which was-taken up with this application. Judgment was entered for the plaintiffrespondent on December 14, 1956. On the same day the defendant-petitioner tendered a petition of appeal which was accepted by Court..Thereafter his proctors filed on the same day the notice of security callingupon the respondent to take notice that the appellant would on the4th day of January, 1957 (or so soon thereafter as is possible) move to-tender security by depositing in Court to the credit of the case a sum ofRs. 250. Order was made to issue notice of security returnable on:4.1. ’57. The appellant’s proctors also obtained a deposit note from theCourt on December 12, 1956 to deposit a sum of Rs. 250. This sum was-deposited in the kachcheri and a kachcheri receipt was obtained and filed,in Court on the same day. On January 4, 1957 which was the returnabledate of the notice of security the proctor for the plaintiff respondentappeared in Court and stated that he was accepting the security. Thenotice had already been served on him personally. Immediately afterthe respondent’s proctor expressed his willingness to accept the securitytendered, a perfected bond hypothecating the sum of Rs. 250 was filedand order was. made to issue notice of appeal. The bond in question wassigned by the appellant on December 31, 1956 at Colombo in the presenceof a Justice of the Peace. On April 2, 1957 the respondent’s proctor"moved that the appeal be abated for the reasons set out in the motion.The matter was fixed for inquiry and the learned District Judge havingheard Counsel who appeared for each party made his order abating theappeal for the reasons (1) that the bond had been perfected before thesecurity had been accepted by the Court and (2) the bond in question isnot a valid hypothecation as required by section 757 of the Civil ProcedureCode. The learned District Judge considered himself bound by the deci-sions in De Silva v. Seenetkumma 1 and Ranasvnghe v. Pier is 3 on the-question whether a bond perfected before the acceptance of the securityby the Court is valid or not. In the former case a Divisional Denchheld that it was irregular to accept the security tendered before thenotices of security were served on all the respondents. But, in that caserelief under sub-section 3 of section 756 was granted with reluctancebecause material prejudice had not been caused to the respondents. Tn
1 (1940) 41 N. L. B. 241.
– (1954) 57 X. L. B. 5SS.
K. D. DE SILVA, J.—Wijemanne v. Costa
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the latter case I held, sitting alone, that the security bond can be per-fected only after the notice of security has been served on the respondentand the security has been accepted by Court. In that case the securitybond had been perfected before the service of the notice of security andbefore the acceptance of the security by the Court and I refusedto grant relief under sub-section 3 of section 756 C. P. C. In the earliercase Soertsz J., while granting relief under that sub-section, stated thatthat decision did not mean that in future cases relief would necessarilybe given in similar circumstances. In the ease of the D&modera TeaCompany Ltd. v. Pedrich Appu 1 De Sampayo J. held that the acceptanceof the security was a judicial act and should be evidenced by an orderof the Court. In the instant case it was contended by Mr. H. V. Perera
Q.C. that the bond had been perfected after the security had beenaccepted by the Court. According to him the bond in question must beconsidered to have been perfected only after it was tendered to Courtalthough the bond itself was signed on December 31, 1956 in the presenceof a Justice of the Peace. I am unable to agree with that view. 1316date of the bond is the date on which it was signed although it wastendered to Court only on January 4, 1957.
The object of giving notice of security as contemplated by section 756is to afford an opportunity to the respondent to satisfy himself that thesecurity proposed to be tendered is adequate if it is to be given in cashor if it is proposed to be given by hypothecating immovable propertythat the amount of the security is adequate and also the title to theproperty intended to be hypothecated is sound. Therefore if the securityis to be given in cash and the amount of such security is adequate noprejudice would be caused to the respondent by the acceptance of suchsecurity even before the notice of security has been served on him althoughit would amount to an irregularity. It is also well known that in mostDistrict Courts there are fixed schedules of security for costs preparedby Judges in consultation with and the approval of the proctors habituallypractising in those Courts and those schedules are strictly adhered to.It was not suggested that the security tendered in this case by the appel-lant was insufficient. Therefore I am prepared to reconsider my earlierdecision (57 N. L. R. 588) with the view to the granting of relief undersub-section 3 of section 756. But unfortunately for the appellant, the2nd objection is clearly entitled to succeed. As stated earlier this bondwas signed before a Justice of the Peace. There is no provision for theexecution of bonds hypothecating movable property under section 757before a Justice of the Peace. In Mohammud TJiamby v. Pathurnma 2an appellant tendered a security bond hypothecating immovable pro-perty signed by the obligor before the Chief Clerk of the District Court.Ob j ection was taken to this bond because it was not executed in the mannerprescribed by Ordinance Ho. 17 of 1840 or Ordinance Ho. 17 of 1852.This objection was rejected by Bertram C. J. who stated that the bond inquestion had been executed in accordance with a practice which hadalways prevailed for a long time past in our District Courts. He observed“ We should hesitate very long before giving a decision contrary to thatgeneral practice. ” Again the same Chief Justice gave effect to that long
1 {1921) 22 N. h. R. SSI.- {19IS) 1 Ceylon Law Recorder 26.
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JSdvoin Singho «. Nanayhhara
standing practice in Fernando v. Fernando x. In that case the proctor forthe appellant executed in his office a bond by hypothecating immovableproperty and tendered it to Court. Objection was taken to it on theground that it was not executed either before the Judge or the Secretary inaccordance with the established practice. That objection was upheld.In doing so the learned Chief Justice referred to the judgment of theFull Court in Queen’s Advocate v. Thamba Pulle 2 and stated “ That caseestablished an exception to the general statutory rule that every mort-gage of immovable property must be executed in accordance with therequirements of Ordinance No. 7 of 1840. The Court in establishing thatexception said that the provisions of section 2 of the Ordinance No. 7 of1840 evidently referred to conventions between parties and not to judicialhypothecs constituted as this is by the order of the Court. That excep-tion has ever since been recognized. The question is what did the Courtmean by establishing it. I think it meant to rule that the requirements ofsection 2 of the Ordinance No. 7 of 1840 were not intended to apply tohypothecary bonds executed as an incident in judicial procedure beforethe Court. ” The effect of the bond under section 757 hypothecatingthe money in deposit is to create a judicial hypothec over that money.Surely, if in the matter of hypothecating immovable property undersection 757 the bond has to be executed before tbe Judge or the Secretaryor the Chief Clerk, as the case may be, by parity of reasoning, a bondhypothecating money as security for costs should also he executed in thesame, manner. This bond has not been executed either before the Judgeor the Secretary and therefore section 756 (1) read with section 757 hasnot been complied with. The application is refused with costs. AppealNo. 76 is dismissed without costs.
Weerasoohiya, J.—I agree.
Application and Appeal dismissed.