THE DEMODERA TEA CO. LTD., v. PEDRIC APPU

117-NLR-NLR-V-22-THE-DEMODERA-TEA-CO.-LTD.,-v.-PEDRIC-APPU.pdf

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Present: De Sampayo J.
THE DEMODERA TEA CO., LTD., v. PEDRIC APPU.
210—0. R. BaduUa, 2,935.
Appeal—Security bond—Acceptance of bond by chief clerk withoutreference to Court.
The acceptance of security tendered by an appellant undersection 766 of the Civil Procedure Code is a judicial act and shouldbe evidenced by an order of Court. The act of a chief clerk, who,without any reference to Court, allowed security bond to be enteredinto, is not a compliance with the provision of section 756 of theCode.
rpHE facts appear from the judgment.
E. W. Jayawardene, for defendant, appellant.
Alwis, for plaintiff, respondent.
January 20,1921. De Sampayo J.—
This is a very unusual appeal. The defendant-appellant onJuly 6, 1920, duly lodged a petition of appeal from the judgmentof the Commissioner, and on the same day his proctor gave writtennotice to the plaintiff’s proctor that he would on July 9,1920, tendersecurity in appeal. The security proposed was a bond for any 1
1 (1919) 6 C. W. R. 296.* (1920) 21 N. L. R. 413.
*(1920) 21 N. L. R. 492.
1921
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1921. sum not exceeding Rs. 160 to be entered into by the defendantDb SaotayoJo^11 Singho as surety. To the notice was annexed
j. a headman’s report as to the worth of the proposed surety. TheThe-Dmo wr^t^en no^ce was not taken out from the Court nor served throughdera Tea Co.» ^e Fiscal, but was shown to the plaintiff’s proctor, who made onLtd., v.the paper this endorsement: “ I cannot consent to surety on report
Pedrio Appua <jeed ^ given.” The notice paper, with this
endorsement, was submitted to the chief clerk of the Court. OnJuly 9, 1920, which was referred to in the notice, the chief clerkmade a minute that the defendant’s proctor filed “ deed in favourof surety as well as headman’s report. Security bond entered into.”The chief clerk himself, without any order of Court, appears to haveaccepted the security bond signed by the defendant and his surety.Subsequently, the plaintiff’s proctor moved, with notice to thedefendant’s proctor, that the appeal may be declared to haveabated on the ground that the defendant had failed to give security.On thiB motion the Court made order declaring the appeal to haveabated. It is from this order that the present appeal is taken. 1doubt whether this is an appealable order, hut as the point involvedwas argued by counsel on both sides, I shall deal with.it.
It is rather difficult to understand what the plaintiff’s proctormeant when he endorsed on the notice paper the words “ Let a deedbe given.” I.should say that he probably wanted a mortgage ofsome property of the surety should be given. But the matter wasdealt with in the Court below on the footing that a title deed for aland of the surety was to be produced and filed in Court. Even so,the question is whether security in appeal was duly giveif. Section756 of the Civil Procedure Code contemplates that the acceptanceof the security tendered should be by the Court, for it provides thaton the day for which notice is issued the respondent shall be heardto show cause, if any, against the security being accepted, andin the event of security being accepted, then the Court shall im-mediately issue notice of the appeal. It is clear that the acceptanceof the security is a judicial act, and should be evidenced by an orderof Court. But in this case the matter was not even submitted toCourt. The act of the chief clerk, who, without any reference toCourt, allowed the security bond to be entered into, is not a com-pliance with the provision of section 756. I should say that, evenwhere the proposed security is consented to by the respondent, theCourt should sanction the acceptance of the security. In this casethere was an objection, and the disposal of it was a~ matter for theCourt. In my opinion security in appeal was not duly given, andthe order declaring the appeal to have abated was right.
The appeal is dismissed, with costs.
Appeal dismissed.