Sri tanka Law Reports
11990] 1 SriL.R.
furnishing of security and the making of the deposit within 20 days asrequired by s. 756 (1). Both such periods were to be computed fromthe date when the decree or order appealed against was pronouncedin the manner set out in these two sub sections. Hence a would-beappellant who complied initially with s. 754 (2) was allowed time up toa total period of 20 days for compliance with s. 756 (1). It is only whenthere had been compliance with both time limits that notice of appealis ordered by Court to be served on the respondent. If there wascompliance with s. 754 (2) but ‘ the petitioner’ failed or omitted tocomply with s. 756 (1) then * the petition of appeal' must be held to haveabated and no further steps were necessary – s. 756 (2). The schemeof the 1973 Code therefore shows that an appeal was preferred to theSupreme Court only where there was due compliance with the stepsenumerated by sections 754 (2) and 756(1) within the periods oflimitations prescribed therein".
These words with which I am in agreement show the requirement torproviding security as an essential step in the process of preferring anappeal, a view expressed by Atukorale, J. notwithstanding the presenceof the provision in section 756 (3), in terms identical with section 759 (2)of the present Code called in aid by Counsel for the appellant, permittingan appellate Court to grant relief in the case of any mistake, omission ordefect, It also strikes me as significant that although the presence of thisprovision in the Code as it stood in 1973 permitted this relief to be grantedby an appellate Tribunal when the appeal was before it, there was adirection in the provision just preceding it at section 756 (2) that if theperson presenting the petition of appeal failed to give security the petitionof appeal was to be held to have abated (by the District Court and beforethe record was sent up to the appellate tribunal). What is required to benoted is that with such an order of abatement the record will haveremained in the District Court while relief if at all under section 756 (3) onthe basis of any correctable mistake, omission or defect could have beengranted by the appellate tribunal only when the record was before it inappeal, a position lending support to a view that the provisions of section756 (3) had no application to a situation where the failure was to furnishsecurity. This aspect of it is perhaps supportive of a view that has beentaken with respect to the earlier provisions that the providing of securitywas an essential step in the appeals procedure (videfor example the caseof Chelliah v. Selvanayagam (2) a view which I think has equalapplication to the present provisions.
CADona Cedliana and Others v. Kamala Piyaseeli and Another233
(S. B. Goonewardene. J.)
I would therefore venture to say that at the time the plaintiffs presentedtheirnoticeof appeal on 19th May, 1982, it should have been accompaniedby security for the respondent’s costs of appeal, that is in the instant casehaving regard to the choice adopted by the plaintiffs to deposit a sum ofRs. 750/=, with a hypothecation of that money and that the failure to dothat was a failure to take an essential step in perfecting this appeal, itbeing too late now, over seven years after the notice of appeal waspresented, to endeavour to do what should have been done on or before19th May, 1982.
Much reliance was placed by Counsel for the appellants on thejudgment of Wanasundera, J. in the case of Vithana v. Weerasinghe andAnother (3) where there is a reference to the power of the Court to grantrelief under section 759 (2) of the Code. I do not see anything there whichwith any degree of specificity, has the effect of saying that a failure toprovide security as has happened in the instant case by non hypothecationis something correctable at a later stage when the appeal is before thisCourt.
To my mind the conclusion is inescapable that the failure to givesecurity which is as I perceive the effect of the failure to hypothecate themoney deposited as has happened in the instant case, is not somethingcorrectable at a later stage when the appeal is before this Court by theinvocation of the provisions of section 759 (2) of the Code. If such ispermissible, there is no step in the appeals procedure that would not becorrectable under this provision. The view I thus take of these provisionsis consonant with the view taken by this Court in the cases of Arulampalamv. Daisy Fernando (4) (1986) 1 Colombo Appellate Law Reports 651 andThabrew v. Kosgoda Vajiragnana Thera (5).
Before I pass I would like to say something in regard to the practicaleffect of allowing an application of this kind. Counsel for the appellantcontended that the Registrarof the District Court could be required to takea bond and forward it to this Court in hypothecation of the moneydeposited. To prepare and perfect such a bond demands that theRegistrar must be in a position to examine the original record which thusrequires that such record should go back from here to the trial Court, andthat in the instant case after more than seven years. Apart from creatinga bad precedent which would encourage this kind of conduct lacking indiligence on the part of appellants, and apart also from the injustice
Sri Lanka Law Rapcns
[1990j > SriL.R.
caused to the respondent, ai a time when we are faced with a livingproblem of the laws delays this is scarcely the kind oi action that must becountenanced.
One final question i would wish to address my mind to. Assuming forthat purpose that the provisions of section 759 (2) of the Code hadapplication and that relief could have been granted to the plaintiffs, isthere justification for doing so in the instance case ? I think not. Firstlythere has been no explanation of any kind forthcoming for this failure tohypothecate this money. Secondly the time factor involved that it issought to cure this defect over seven years later as I have pointed out.Thirdly permitting such an application would, as I have again pointed out,result in the record having to go back to the original Court for the bond tobe perfected with the inevitable delay that process would involve inconcluding this appeal. Fourthly it can scarcely be said that the respondentwill not be materially prejudiced by allowing such a step. As Counsel forthe respondent pointed out the continuance of a suit itself is irksome andtherefore prejudicial and the very advantage to be gained by therespondents by the appeal being rejected would be lost to them whichnecessarily means that he will be materially prejudiced. I would thereforewithhold this relief from the plaintiffs even if this Court had the power togrant it.
For these reasons I would sustain the preliminary objection taken andreject this appeal. The appellants will pay the respondents Rs. 315/= ascosts in this Court.
WEERASEKERE, J. -1 agree.
Preliminary Objections overruled.