092-NLR-NLR-V-18-UKKUWA-v.-THE-ALLUTA-RUBBER-AND-PRODUCE-CO.-LTD.pdf
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[Puij. Bench.]
Present : Wood Renton C.J., Ennis J., and Be Sampayo A.J.
UKKUWA r. THE ALLUTA RUBBER ANDPRODUCE CO., LTD.G. Kandy, 22,729.
•1 hpeal—Waiver of svrurity by proctor for respondent—Civil ProcedureCode, ss. 750 and 757,
An appeal lies without security for costs where the respondent'sproctor waives security.
fjp HE facts are set out in the judgment.
.4. Si. V. Jayewardene, for the applicant.—The provisions of theCivil Procedure Code as to security are intended for .the benefit ofrespondent parties, and it is open tp them to waive such benefit attheir option. In Jayasekera v. Janes1 it was held that a respondentway waive security for costs. That case has been followed eversince. [Wood Benton C.J.—The question here is, whether theproctor can waive, and not whether the party respondent canwaive.]
It was always conceded that a proctor can get the whole moneydue to his client, and give a good discharge. If so, why should nothe waive the security for costs? He would be liable to his clientif he had acted without his client’s authority. Counsel referred toParkgate Iron Company, Limited, v. Coates,* 60—D. C. Colombo,{13.419.*
Cur. adv. vvlt.
-July 80, 1915. -Wood Renton C.J.—
This is an application by the defendants for an order requiringthe District Judge of Kandy to forward the record and their petitionof appeal to this Court. The learned District Judge had declinedto do so on the ground that the defendants had failed to givesecurity for the costs of the plaintiff-respondents, as required bysection 757 of the Civil Procedure Code. It would appear that,in conformity with a practice which had prevailed in the DistrictCourt of Kandy up to December the 9th, 1914, the respondent’s
* (1582) 2 C. L. R. 25.» (1575) L. R. 6 Q. P. 684.
3 8. C. 'Mins., June 4, 1914.
1915.
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1915* proctors imd agreed to waive security fxr costs; and this agreement^ was duly recorded in .the journal entries, together with a motion byBbnxon CJ. the defendants' proctors that the appeal having been otherwise per-Vkkuwa ^ted should be transmitted in due course to the Supreme Court.The AUvta The learned District Judge, as I have already said, disallowedand this motion, for reasons given by him on December 9 last, inLtd.No. 44—D. C. Kandy, 22,801. These reasons are, in effect, thatsection 757 of the Civil Procedure Code peremptorily prescribesthe form in which security shall be given; that the matter concernsthe public revenue; and that, if the proctor for a respondent ispermitted to waive the benefit conferred upon him by section 757,and accept a sum of money in cash in lieu of the security prescribedby the Code, the respondent incurs the risk of losing the moneyaltogether, if. for example, the proctors concerned should fall intopecuniary embarrassment, and the amount deposited should beseized in execution against them. There is, in my opinion, greatforce in the reasoning of the learned District Judge, which mightbe reinforced by an additional argument, namely, that there is inthis country an even greater risk of security being dispensed withas a matter of amicable arrangement between the proctors oneither side, without the respondent, who is frequently a villagelitigant, having been made to realize that the waiver of securityforfeits a substantial benefit which the law has given to him.Although .the language of the statutory form for the appointmentof a proctor is wide enough to cover references to arbitration, theCivil Procedure Code has taken special precautions in the interestof litigants as regards all such references. It may well be thatsimilar precautions would be desirable as regards waiver of securityfor costs, or, in any event, that the Judge of first instance shouldhave the right .to satisfy himself, if he thinks proper, that the clientunderstands what such waiver means. But the point before us iscovered by repeated and express authority, from which I do notthink that we should be justified in departing (see Jayasekera v.Jarntz * S.C. No. 50—D. C. I.. Colombo, No. 32,412,* and OunatiUeheMudaliyar v. Punchy Hamy.*). The English case of Parhgate IronCompany, Limited u. Coates 4 is to the same effect.
On these grounds I would make an order in terms of theapplication.
Exkxs J.—
I agree with the order proposed by my Lord the Chief Justice.Db Sampayo A.J.—I agree.
Application allowed
(1908) 2 Leader R. 110.
(1870) L. R. 8 0. P. 684.
1 (1892) 2 C. L. R. 28.
# 8. C. Mine., June 4,1914.