123-NLR-NLR-V-23-KANAPATHIPILLAI-v.-KANNAKAI-et-al.pdf
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Present: Ennis and Garvin JJ.KANAPATHIPILLAI v. KANNAKAI el a!„
13—D. <7. Jaffna, 13,088:
Appeal—Security far costs—Bond executed before Justice of the Peace—
Bond invalid—Appeal not perfected.
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A bond hypothecating immovable proverty as security for costsof appeal, executed before a Justice of the Peace, waa held not tohave been properly executed, and the appeal was held not tohave been perfected.
fJlHE foots appear from the judgment.
H. J. C. Pereira, K.G. (with him J* Joseph), for plaintiff.
Croos-Dabrera (with him Spencer Bajaratnam), for defendants,respondents.
November 3,1921. Ennis J.—
In this case a preliminary objection has been raised that thesecurity bond is not properly executed. The bond is by way ofmortgage of immovable property, and has been executed before aJustice of the Peace. It does not therefore comply with the require-ments of Ordinance No. 7 of 1840 or the amending Ordinance No. i7of 1852 as regards the manner in which it was executed.
It was contended that the case of Queen's Advocate v. ThdmbaPuRe1 established the principle that judicial hypothec did not fallwithin the provisions cf Ordinance No. 7 of 1840.
In my opinion that case did not go so far, because it expresslystated that a bond signed before the Secretary of the Court fulfilledthe requirements of certain roles and orders which were then in
1921.
13 Lor.,302.
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1921, force, and which had received statutory recognition after theOrdinance No. 7 of 1840 oame into operation.
The matter was considered in the case of Mohammado Thomby v.
PcUhvmma,1 and there a bond signed before the Secretary of theKannakai Court was allowed as a special exception on the authority of Queen’* *Advocate v. Thamba PvUe (supra), but in a later case Fernando v.Fernando2 the same Bench declined to extend the exception to covera case in which a proctor acting on behalf of his client executed abond in his own office and afterwards filed it in Court. The Courtexpressed the opinion that such a contention would be departingfrom the principle of the exception and establishing a dangerouspractice. I am entirely inaccord with that view, and I am, therefore,of opinion that the preliminary objection in this case is good.
I would, therefore, dismiss the appeal, with costs.
Gabvxn A. J.—I entirely agree.
Appeal dismissed,