DE SILVA J.—Banaweera v. Seelmrathie.
1946Present : de Silva J.RANAWEERA et ad., Appellants, and SEELAWATEJLE el cd.,Respondents.
69—C. B. Maude, 7,712.
Appeal—Preliminary objection—Waiver, subsequent to date of filing of petitionof appeal, of security for costs and notice of appeal—Validity of.
It is not open to a party who has waived security for costs and noticeof appeal to take any objection that the waiver itself is late.
PPEAL from a judgment of the Commissioner of Requests of Matale.
H. W. Jayewardene, for the defendants, appellants.
C. E. 8. Perera (with him S. R. Wijayaiilake), for the plaintiffs,respondents.
June 25, 1946. de Silva J.—
A preliminary objection was raised to the hearing of this appeal on theground that the petition of appeal had been filed on August 27, 1945, andthat security for costs and notice of appeal were waived on August 29,1945. Counsel for the respondent relied in support of his contentionon the Five Judge case of De Silva v. Senathumma 1 and the case of Moha-med v. Conrada. In the latter case, it was doubted whether a waiverof security after the date of the filing of the petition of appeal would beeffective, but the point did not arise for decision in that case as there wasno waiver at all of the security but merely a consent to the amount ofthe security tendered. It seems to me that a waiver in the circumstancesof this case, though it is not on the date of the filing of the petition ofappeal, is good and it is not open to a party who has waived securityto take any objection that the waiver itself is late. I, accordingly,decided to hear the appeal but, on the merits, I am of opinion that thejudge has come to a correct conclusion. He has held that owing to the
111940) 41 N. L. R. p. 241.* (1941) 43 N. L. B. p. 330.
Fhe King v. Pedriek Singho.
length of time during which the plaintiff has had possession an oustermay be presumed. This conclusion appears to be supported by thestatement appearing in P 1 whicn states that there was a distributionof the property and that this property in question had been allotted to thevendor Kiri Banda. 1 would, therefore, dismiss the appeal but, in viewof the preliminary objection which failed, neither party will get anycosts of appeal.