055-NLR-NLR-V-24-MENDIS-v.-JINADASSA-et-al.pdf
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1922.
Present : De Sampayo and Porter JJ.
MENDJS v. JINADASSA et al.
468—D. C. Nuuiara Eliya, 569i
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Appeal—Security for costs—Money deposited—No bond ..9t,
money—Civil Procedure Code, ss. 756 and 757—Ordinance No, 42 of1921—Power of Supreme Court to grant relief—Cure of defects.
The appellant deposited a sum of money as security for costs ofappeal, hut did not execute a bond hypothecating it. In appealit was contended for the respondent that Ordinance No. 42 of 1921did not give the Supreme Court power -to grant relief, as theOrdinance had no reference to section 757 which lays down thaform in which security should be given.
Held, ihat. the Supremo Court had power to grant relief. TheupjH.-llant was directed to hypothecate the money before thehearing of the appeal.
THE facts appear from the judgment.
Jaijawardene, K.C. (with him Arulanandam and C. W. Perera)for the appellant.
Suntherdm (witli him R. C. Fonseka), for the respondent.
June 22, 1922. De Sampayo J.—
We have to deal with a preliminary objection, taken on behalf ofthe respondent, to the appeal being entertained. When the objec-tion was first taken on a previous occasion, it did not appear'clearlythat the money, which was intended to be the security tendered
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barf been deposited, or that it had been hypothecated by a bond.Accoi-dinglv we thought it right to refer the matter to the DistrictJudge, who was asked to inform this Court whether the depositwas in fact made, and whether it had been hypothecated by a bond.The District Judge has now informed this Court that the depositwas in fact made, but that there was no bond executed hypothecatingit. Counsel for the respondent still presses the objection, notwith-standing the provisions of the amending Ordinance No. 42 of 1921.His point is that the Ordinance amended the provisions of section 750giving this Court power to grant relief in case of defects or irregular-ities committed under section. 756, but that it had no reference tosection 757, which lays down the form in which the security shouldbe given. I think this is taking a too narrow view of the remediallegislation enacted by the Ordinance No. 42 of 1921. Section 756provides for security' tendered being “ accepted.’* When the restof the section is read With the egression “ accepted,” it appears clearthat ” acceptance ” really, implies ” completion ” of the securitywithin the. time limit, namely, twenty days. It cannot be com-pleted unless the bond provided for in section 756 is executed.Therefore, when the new Ordinance gives this Court power inthe case of any mistake, omission, or defect on the part of an appellantin complying with the provisions of section 756 to grant relief, it.must be taken to have intended to apply the provisions to anyomission or defect in connection with the bond. I do not thinksuch an extensive interpretation, if it is to be so called, is unjust orunfair when the object of the entire legislation is taken into con-sideration. If some of the previous decisions are to be taken asa guide, it would appear that the suggestion I have just made iscorrect, that defects such as these are really omissions to complywith section 756. For instance in Wiohremaraine v. Fcrnajido lwhere' the facts are entirely similar to those we have here, that isto say, the deposit of the money had been made, but no bondhad been executed hypothecating the amount, this Court dealtwith the matter as one coming under section 756. I think, there-fore, that we ought, to apply the provisions of the new Ordinance,as it is very plain that the omission to comply with the require-ment of hypothecation by a bond was not ' a, deliberateomission, but due clearly to an oversight, and no prejudicewill be caused to the respondent if we say that the amount be nowhypothecated, by a bond. I would, therefore, in the exercise of thepower vested in us by the new Ordinance, direct that theappellant do now hypothecate the sum deposited by a bond in dueform. When this has been done, the appeal might be listed forargument. There will be no order as .to the costs of this objection.
Pobteb J.—I agree.
Objection overruled..1022.
De SampavoJ.
Mtndia v.Jtnndaaaa
1 (1918) 20 N. L. R. 279.