066-NLR-NLR-V-41-SUPPRAMANIAM-CHETTIAR-v.-SENANAYAKE-et-al.pdf
DE KRETSER J.—Suppramaniam Chettiar v. Sena nay ake.
271
1939Present: de Kretser J.
SUPPRAMANIAM CHETTIAR v. SENANAYAKE et al.
173—C. R. Colombo, 45,706.
Security for costs—Notice to all respondents—Even to those respondent#against whom no relief is claimed—Civil Procedure Code, s. 756, siiC£section (3).
Security for costs and notice of security must be given to all personswho are made respondents to an appeal, even to those against whomno relief is claimed.
Failure to give such security or notice is a non-compliance with theterms of section 756 of the Civil Procedure Code in respect of whichrelief cannot be granted under sub-section (3) of the section.
^^PPEAL from a judgment of the Commissioner of Requests, Colombo.
L. A. Rajapakse (with him M. M. I. Kariapper and J: E. ALLes), forplaintiff, appellant.
J.R. Jayawardene, for defendants, respondents.
December 1, 1939. de Kretser J.—
The appellant sued three persons on a promissory note. A proxy wasfiled which purported to come from the first and second defendantbut, was in fact signed by the second defendant alone. The Courtrequired a proxy to be filed from the first defendant and several dateswere given, but before the proxy was filed a minute of consent was placedbefore the Court by which the first and second defendants consented tojudgment and asked to be allowed to pay by instalments. The Courtwas then only concerned, apparently, with the recovery of the stampduty on the proxy which should have been filed, and :that was dulyrecovered. The proxy remained unsigned by the first defendant. At alate stage the first defendant took objection to the issue of writ againsthim on the ground that he was a public servant at the time when the notewas made and decree entered against him. The objection was upheld.The plaintiff then appealed, making all three defendants respondentsto his appeal, and he stated that, though the second and third defendantswere made respondents no relief was claimed against them. He thenpurported to deposit in Court, by a motion dated July 31, a sum ofRs. 26 as security for costs of appeal of the first defendant-respondent,
272
DE KRETSER J.—Suppramaniam Chettiar v. Settanayake.
which seems to have been received in Court on August 2 and to havebeen minuted against the date August 3. The proctor, who still had noproxy from the first defendant, received notice and had no cause to show.
The order appealed from had been made on July 31 and notice hadbeen given not to the respondent but to a person who purported to be hisproctor.
-fto objection to the constitution of the appeal has been taken on thisground', but it is argued that no notice of the tendering of security andno security had been given to the second and third defendants, althoughthey had been made respondents.
Now, in terms of section 756, every person made a respondent is entitledto notice and to such security as the Court orders. In this case theappellant, probably thinking that no security was required for thoseagainst whom no relief was claimed, did not serve any notice on themnor tender security, but he has made them respondents, apparentlyfeeling for some reason that their presence was necessary to constitutea proper appeal, and it is impossible to say at this juncture whether themere fact that he claimed no relief against them on his appeal necessarilymeant that they might not be prejudiced by the appeal or by theirabsence at the hearing of the appeal. It is contended that their liabilityremained the same, whether the appeal succeeded or not, and in facttheir position might conceivably be better if the appeal succeeded sinceit is conceivable that the plaintiff might levy against the first defendantalone, and in any case each of the other parties would have a right ofcontribution from the first defendant. This may or may not be so.It may be the respondents’ desire to be present in Court so as to givewhatever support they could to the appellant’s * case; or it may be,as suggested by the respondents’ counsel, that one of them is a publicservant himself and therefore interested in the result.
It is impossible to canvas these questions at this stage. It is enoughthat they were made respondents and that having been made respondentsthey should have been given notice of whatever security was beingtendered. It is quite conceivable that eventually the Court might nothave ordered any security in their case. There is therefore a non-compliance with the provisions of the first sub-section of section 756,and the only question is whether relief should be given undersub-section (3).
A number of authorities have been cited, some prior to the DivisionalBench judgment in Sahira Umma v. Abeysinghe some subsequentthereto. Those prior to that case are necessarily not of much assistancenow, but I might state that the decisions in Nadarajah v. H. Don Carolis& Sons", Mendis v. Jinadasa *, and Martin Singho v. Paulis Singho ‘are very like the unreported case decided by my brother Nihill and myself(24 D.C. Kandy, 70, S. C. Minutes of September 18, 1939). In all thosecases as a matter of fact security had been deposited with due noticebut there was only the formal defect that the sum of money depositedhad nql been hypothecated. Such a defect would be covered probablyby the'second condition imposed in the Divisional Bench judgment.
1 (1937) 39 A”. T.. R. 84.3 (1922) 24 N. T..R. 188.
» (1936) 38 N L. R. 182.‘ (2934 13 C. L. Rec. 238.
NIHILL. J.—Abdul Majeed v. Cassim.
273
In Katonis Appu v Charles', a case which was very similar to thepresent one, Abrahams C.J. rejected the appeal because security hadbeen given only for one of many respondents although it was not clearthat the other respondents would in any way be affected by the appeal.
In Siyadoris Appu v. Abeyenayake *, an appeal was rejected becausesecurity was not given for one of the respondents. That case, however,was a partition case and the party .for whom no security had been givenseems to have made common cause with the respondents, but that doesnot appear to be the ground upon which relief was refused. It wasrefused on the ground stated in the Divisional Bench judgment, namely,that there had been a non-compliance with the tertns of the section withoutany excuse.
In an unreported case (S. C. 218/D. C. Ratnapura, 6,263) decidedby my brothers Soertsz and Heame on February 20, 1939, an appeal wasrejected for the same reason in very emphatic language. There is alsothe case (92 D. C. Kalutara, 16,775) decided on February 14, 1939. Thereis therefore quite an abundance of authority that in circumstancessuch as the present the appeal must be rejected. It is therefore rejectedwith costs.
Appeal rejected.