128-NLR-NLR-V-23-PERERA-v.LOGUS.pdf
( 468 )
PERERA v. LOCUS.
51—£>. C. Colombo, 83.
Notice—TToi^er.
E. W. Jcyawardene, for (be appellant.
Iff. TP. Perera, lor the respondent.
October 11, 1921. Bertram C. J.—
This is a case very similar to the case which we have decided to-day,namely, 73 D. C. (Jnty.) Colombo, 52,526. A preliminary objection is takenthat the provisions of section 756 o£ the Civil Procedure Code have notbeen complied with. The appellant did not give notice to the respondentthat he would on a day to be specified in the notice tender security. Insteadof that, he sent in a notice that he moved to deposit in Court e sum of Bs. 50as security for the respondent's costs in appeal. The first defendant onreceiving this notice struck out the words “ 1 consent,” and substituted thewords” received notice.” If he had stopped there, his case would have beenexactly on all fours with the fose previously mentioned. But he went further.It would seem that, though the first defendant was the only defendant whowas made a respondent to the appeal, there were other defendants who wereinterested. The proctor, for the first defendant, desired to make it clear thatany money deposited for costs must/be deposited in respect of his client’scosts, independently of the other defendencs. He, therefore, added these words:“ and ask for Rs. 50 to be deposited as the first defendant-respondent's costa.”The. proctor, fcr the fifth and sixth defendants, was,, apparently, shown thisnotice and the endorsement by the proctor, for the first defendant, and headded a further endorsement: “ I have no objection, I). A Dissan&yake.” Inpursuance of this requirement, the security bond was drawn up in whichthe first defendant was mentioned aa respondent, and the amount depositedwas duly hypothecated.
It seems to mo that, under these circurcuaiaocea, the proctor, for the firstdefendant, did something more than give a formal acknowledgment. Hemade a requirement. That requirement was accepted, and in view of thisarrangement it seems to me that he impliedly waived his right to insist uponthe condition to which he now appeals. That such a waiver can be madeis shown by the Full Court decision in VTckuxoa v. AUuia Rubber and ProduceCo., Ltd„ {1915) 18 N. L. B. 341.
I think, therefore, that the preliminary objection must be disallowed.
Da Sampavo J.—I agree.