048-NLR-NLR-V-23-MENIKHAMY-v.-PINHAMY.pdf
( 189 )
Present: Wnnw J. and SohneiderA.J.MENIKHAMY 9. PINHAMY.322—D. 0. Ghilaw, 5,725.
Appeal—Security—Mortgage of immovables—Bond signed before Secre-tary—Ordinance No. 7 of 154$—Civil Procedure Code, «. d.
The mortgage bond hypothecating immovable property assecurity for appeal was signed by the principal and surety in thepresence of the Secretary of the Court and one witness.
field, that the security bond was in order, as Ordinance No. 7 of1840 did not apply to a judicial hypotheo.
rpHE facts appear from the judgment.
Samarawickreme (with him Groos-Dabrera), for ninth defendant,appellant.
Zoysa (with him H. V. Perera and M. W. H. de Silva), forrespondent.
September 15,1921. Ennis J.—
A preliminary objection has been taken to this appeal on theground that the security bond is not in order. -The bond is amortgage of immovable property in favour of the Secretary of theCourt, and has been signed by the principal and one surety in thepresence of the Secretary of the Court and one witness.
It was urged that this bond did not conform with the provisionsof Ordinance No. 7 of 1840 or Ordinance No. 17 of 1852. It wouldseem that this question was raised in the case of Mohamado Tambyv. Pathumma,1 and it was there held that the existing practice inCeylon should not be departed from, and that practice was referredto in the case of Q. A. v. Tambapulle,2 which held that OrdinanceNo. 7 of 1840 did not apply to a judicial hypothec, and that underthe Buies and Orders then existing, which had received legislativesanction after the passing of Ordinance No. 7 of 1840, it was suffi-cient to execute a bond in Court.
The forms given in the Buies and Orders referred to in the case of
Q.A.v. Tambapulle2 seem to support the contention that there wasa special practice in the case of j udicial hypothec.
I would follow the case of Mdhamado Tamby v. Pathumma1with some diffidence, as I am not sure that section 4 of the CivilProcedure Code is sufficient to cany forward the practice which fsin direct conflict with the express terms of Ordinance No. 7 of 1840and Ordinance No. 17 of 1852. However, following the cases I have'referred to, I would over-rule the objection.
Schneider A.J.—I agree.
1981.
1 1C. L. R. 26.
Objection over-ruled.2 3 Lorenac, 303,