BASNAYAKE C.J.—Leeiis Singho v. John Singho
Present : Basnayake, C.J., and Pulle, J.T.BF.T.TR SINGHO and another, and JOHN SINGHO and others,
S. C. 79, with, Application 38—-D- C. Kdtvtara, 28,855
Appeal—Notice of tendering security—Mode of service—Civil Procedure Code, as. 59 r
60, 63, 356, 756.
Section 356 of the Civil Procedure Code provides for the mode of service ofnotices which are required to be given by the Code.
Notice of tendering security for the costs of an appeal was not served on someof the respondents. Instead, a notice was affixed to a tree on the land thatformed the subject matter of the action. There had been no report from the-Fiscal that he was unable to effect personal service.
Held, that notice of tendering security was not given to the respondents inthe manner prescribed by section 756 of the Civil Procedure Code.
Held further, that omission to give notice of security in the prescribed mannerwas not an omission for which relief could be given under subsection 3 ofsection 756.
f^APPEAXi from a judgment of the District Court, Kalutara.
T. Samerctwickreme, with E. A. G. de Silva, for 21st and 22ndDefendants-Appellants and for Petitioners in Application No. 38.
Nimctl Senanayake, for Plaintiff-Respondents and for Respondentsin Application No. 38.
Gut. ado. wU.
May 29, 1959. Basnayake, C.J.—
This is an application by the appellants for relief under section 756 (3jof the Civil Procedure Code.
On 27th December 1955 the 21st and 22nd defendants lodged anappeal against the judgment of the District Judge which was deliveredon 17th December 1955. At the same time they gave notice of tender-of security and moved “ To issue the notice to be served personally on.Mr. D. E. Almeida, Proctor for plaintiffs, Kalutara, and also by affixingto a tree on the land, the subject matter of this action which will be poin-ted out by the appellant This application was allowed. Besides-the plamtiffs-respondents they named twenty of the defendants asrespondents in the petition of appeal. Notice of tender of security was-served personally on the proctor for the plaintiffs. Notice was notserved on the lst-20th defendants-respondents. Instead a notice was-affixed to a tree on the land that formed the subject matter of the action.The notice .bore the same caption as the petition of appeal and was
BASNATAEE, G.J.—Leelis Singho v. John Singho
addressed to “ The Respondents abovenamed ” and required them totake notice that security will be tendered in a sum of Ks. 100 in cash forthe costs of all the respondents.
Objection was taken to the “appeal by the 1st and 10th defendants•on the ground that notice of tender of security had not been served onthem in the manner prescribed by section 756 of the Civil Procedure Code,and the learned District Judge upheld their objection and held that interms of the second limb of section 756 (2) the petition of appeal hadabated.
The appellants ask for relief under section 756 (3) against that order.The learned District Judge is right in holding that notice of tender ofsecurity had not been given in the prescribed manner. Section 356provides for the mode of service of notices which are required to he givenby the Code. It reads :
“ All processes of court not being writs, or warrants directed to theFiscal or other person for execution, and all notices and orders requiredby this Ordinance to be given to or served upon any person, shall,unless the court otherwise directs, be issued for service to the Fiscalof the province or district in whieh the court issuing such processes,notices, or orders is situate, under a precept of that court as is herein-before provided for the case of the summons to the defendant in anaction. And the enactments of the sections of this Ordinance fromsection 59 to section 70, both inclusive, relative to the service of suchsummons shall apply, so far as is practicable, to the service of suchprocesses, notices, and orders.”
Now section 59 provides that service of summons shall, subject to theprovisions in Chapter XX111 of the Code, be made by delivering or ten-dering to the defendant personally a duplicate thereof. Section 60provides:
“Whenever it may be practicable, the service of summons shallhe made on the defendant in person ; but if, after reasonable exertion,the Fiscal is unable to effect personal service, he shall report suchinability to the court in a fair-written return to the precept, having thesummons attached thereto as an exhibit, and it shall be competent forthe court, on being satisfied by evidence adduced before it that thedefendant is within the Island, to prescribe any other mode of serviceas an equivalent for personal service.”
It is not necessary for the purpose of this judgment to reproduce theproviso to the section. Section 63 which is also relevant to the questionunder consideration reads :
“ When there are more defendants than one, service of the summonsshall be made on each defendant.”
In the instant case there is no report from the Fiscal that he is unableto effect personal service. The court had therefore no power to makean order under section 60 of the Code prescribing a mode of serviee otherthan personal service.
SrHNETAMBY, J.—Nanayakkara V. lUangakoon211
Notice has therefore not been given to the defendants-respondents in-the manner prescribed by section 756. The failure to do so is fatal to theappeal. The next question that arises for consideration is whether theappellants are entitled to relief under section 756 (3). It has been laiddown authoritatively by this court in d& Silva v. Seenathumma1 thatomission to give notice of security in the prescribed manner is not anomission for which relief can be given under subsection (3) of section756. We are bound by that decision and ne are unable to grant theappellants the relief they ask for.
The appeal is dismissed and the application for relief is refused withcosts.
Ptjllb, J.—I agree.
Appeal dismissed:Application refused.
1 (1940) 41 N. L. B. 241.